Construction Risk

Contractor Who Completed Work Years Earlier is Liable to Third Party where Patent Defect caused Injury

Where an individual slipped and fell on steps defectively constructed by a contractor at a public library, her estate sued the contractor.  Trial court granted summary judgment on the basis that it concluded the applicable Restatement (Second) of Torts, section 385, protected the contractor from liability where the work was completed years earlier, contained patent defects that were know the library owner, and it was not repaired.  This was reversed on appeal with the court holding that the Restatement imposes liability on contractors to third parties for “all” defective conditions for which they are responsible.  The Restatement doesn’t limit liability to only those situations in which the contractor created a latent dangerous condition not apparent or obvious to the property owner.  Brown v. City of Oil City, 294 A.3d 413 (Penna. Supreme Ct, 2023).

 The Supreme Court of Pennsylvania carefully examined Section 385 of the Restatement of Torts and determined that it does not contemplate that a possessor of land’s knowledge of a dangerous condition caused by a contractor is relevant in determining whether the contractor has liability to third parties.   Other sections of the Restatement (e.g., Sections 403 and 404 condition the liability of the contractor on its awareness of the dangerous condition of project after its work has been completed, and imposes liability when it knew, or had reason to know, that its repair efforts caused it to become dangerous for its intended use.

In this particular case, the contractor in question finished installing stairs at the public library at the end of 2011.   A few months later the city began getting reports about imperfections in the concrete surface of the stairs.  The city notified the contractor of the condition and advised that the City believed the stairs were dangerous and defective. For several more yeas (2012 through 2015) the condition worsened but neither the City nor the contractor took any action to correct the problem.

Near the end of 2015 a library patron tripped on the deteriorated stairs and fell onto her head. She suffered traumatic injury that resulted in her death within a week of her fall.  In the complaint that the deceased patron’s family filed against the contractor, it was asserted that the contractor “knew or through the exercise of reasonable care should have known” of the unreasonably dangerous condition and increased risk of harm to third parties.  The complaint alleges that the contractor breached its duty to exercise reasonable care in the performance of its contractual obligations.

In granting the contractor’s motion to dismiss the case, the trial court found that the contractor couldn’t be liable to the third party because it owed no duty of care to them because the defect was not hidden or “latent” but instead was “patent” and well known to the library.   That decision was reversed by the first level appellate court that determined that an out-of-possession contractor is liable to third parties for all defects created by its work, whether patent or latent.  This was then affirmed by the state Supreme Court.  That court held the following:

“[A] contractor’s liability under Section 385 does not hinge on whether the defective condition it caused is latent or patent. Rather, like the Commonwealth Court did below, and previously in Gilbert, we interpret Section 385 and comment c thereto as imposing potential liability on contractors to third persons for all defective conditions of structures on land which they are responsible for creating through their repair work. Similarly, we conclude that comment c serves only to clarify that the persons to whom a contractor is liable under Section 385 includes the possessor of land, when the dangerous condition is not readily discoverable by the possessor. Accordingly, we reject the contention that a contractor’s liability to third persons is limited to only those situations in which he has created a dangerous condition that is not readily apparent or obvious.”

In reaching this decision, the Court stated that its holding doesn’t alter a possessor of land (such as the library) from having potential liability to third parties for injuries sustained due to dangerous conditions on their property, and doesn’t prevent a plaintiff from suing both the possessor as well as the contractor for their injuries.

Comment:  The court decision doesn’t explain why no action had been taken for several years to correct the problems with the library stairs.  Even if a contractor might be successful in some states in making the argument that where the project owner knows of the problem then that owner (and not the contractor) is responsible for taking future corrective action to prevent injuries, it may be wise for the contractor to make the repairs.  Regardless of whether the contractor might successfully assert that a third party couldn’t make a claim against it, its client could likely make a breach of contract claim or take some other action to recover costs of repairing the defective work so long as the statute of limitations and the statute of repose time periods have not lapsed for making such claims.


About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk Report and may be reached at or by calling 703-623-1932.  This article is published in ConstructionRisk Report, Vol. 25, No. 7 (September 2023).

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