Kostek v. Safety-Kleen Corp. , 635 N.Y.S.2d 910 ( 1995 )

—Order insofar as appealed from unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Charles Kostek (plaintiff), an employee of Harmon Process Piping (Harmon), fell as he was ascending an unsecured ladder to resume painting a tank at an industrial tank farm owned by defendants in New Kingston, Pennsylvania.

Supreme Court should have granted defendants’ motion for summary judgment in full and dismissed the complaint. The court properly determined that, under applicable Pennsylvania law, defendants, as the employer of Harmon, an independent contractor, are not liable for the physical harm caused to plaintiff by an act or omission of Harmon or its employees unless the work to be performed by Harmon involves a special danger or peculiar risk (see, Ortiz v Ra-El Dev. Corp., 365 Pa Super 48, 52, 528 A2d 1355, 1357 appeal denied 517 Pa 608, 536 A2d 1332; see also, Lorah v Luppold Roofing Co., 424 Pa Super 439, 443-446, 622 A2d 1383, 1384-1385). The court erred, however, in concluding that an issue of fact exists whether the work involved a special danger or peculiar risk. Inasmuch as the risk of a fall, under the circumstances of this case, was not unusual or extraordinary and the harm could have been prevented by the exercise of ordinary care on the part of plaintiff’s employer, the peculiar risk or special danger exception is not applicable as a matter of law (see, Ortiz v Ra-El Dev. Corp., 365 Pa Super, supra, at 52-54, 528 A2d, supra, at 1357-1358; see also, Peffer v Penn 21 Assocs., 406 Pa Super 460, 463-464, 594 A2d 711, 713; Restatement [Second] of Torts §§ 416, 427). Moreover, the presence of the concrete retaining wall was not a proximate cause of plaintiff’s injuries (see generally, Amarhanov v Fassel, 442 Pa Super 111, 658 A2d 808). The record establishes that the accident occurred because plaintiff placed the ladder against wet paint on the side of the tank. (Appeal from Order of Supreme Court, Erie County, Cosgrove, J.— Dismiss Causes of Action.) Present — Green, J. P., Lawton, Callahan, Doerr and Davis, JJ.