Until recently, in Pennsylvania, it was less clear whether there would be the same result if the contractor and owner were aware that there was an obvious, or patent, defect in the contractor’s work that increased the risk of the window falling and, despite this risk, the owner did not call upon the contractor to correct the defect. That is, does a contractor continue to bear the risk of injuries if an owner is aware of a defect but chooses not to correct it?

In the case of Brown v. City of Oil City, the Pennsylvania Supreme Court considered this issue and determined that the owner’s knowledge of the defects did not shield the contractor from liability to third parties injured due to the defective work.

The facts of Brown are fairly straightforward. Within the City of Oil City (the city) is a public library built in 1904. Through weathering and aging over the years, in 2011, the concrete stairs to the library needed replacement. As a result, the City engaged Struxures, LLC and its owner, Harold Best (Struxures), to develop plans for the reconstruction of the stairs. Following competitive bidding, the city hired Fred Burns, Inc. (Burns) to remove the existing stairs and install new concrete stairs.

At the end of 2011, Burns completed installing the new concrete stairs. In early 2012, the city began receiving reports of imperfections in the concrete stairs and that the stairs were deteriorating. On February 28, 2012, the city notified Struxures of the condition and that it regarded the stairs as dangerous and defective. Then, on September 12, 2013, Struxtures notified Burns that it considered to be Burns’ defective workmanship that created a dangerous condition.

Even though the city and both Struxures and Burns (the contractors) were aware of the defective condition, nobody repaired the stairs. Nor did anyone warn the public about the dangerous condition. On November 23, 2015, more than three years after the city learned of the dangerous condition, Kathryn Brown and her husband, David Brown, exited the library and began to walk down the stairs. While doing so, Kathryn Brown tripped on a deteriorated area of the stair and suffered a fatal injury.

In the lawsuit that followed, David Brown (Brown) named the city and the contractors as defendants. Ultimately, the city agreed to settle with Brown. The contractors, however, filed motions for summary judgment, seeking to have the action dismissed because they did not owe a duty to third parties after completing the project as the defect was known to the city. The trial court granted the motion, but on appeal, the Commonwealth Court reversed it, finding that the fact that the city knew of the defect did not relieve the contractors of liability.

On further appeal, the Pennsylvania Supreme Court agreed with the Commonwealth Court, finding that under Pennsylvania law, liability to third parties for defective work does not turn on whether the defect is latent or patent. Rather, the Supreme Court relied upon prior case law and determined that when a contractor “creates a hazard which, without the need for a prophetic telescope, proclaims potential injury to the public, he may not plead immunity from liability for resulting damage on the basis that his responsibility ceased with the insertion of the last bolt and the driving of the final nail.”

In rendering its decision, the court recognized that an owner’s inaction when aware of a dangerous condition may make the owner liable. Indeed, the city settled with Brown during the litigation. However, the Supreme Court did not determine whether the contractors were liable. It merely held that the city knowing about the defects in the concrete stairs did not shield the contractors from liability.

While the facts in Brown are somewhat unique given the collective inaction by the city and the contractors, the potential for being responsible for injuries due to obvious defects that an owner knows about is a scenario that a contractor wants to avoid. There are a few ways that you, as a contractor, can do so.

First, given the Supreme Court’s statement that liability may extend to contractors for defects of which the owner is aware, you should review your contracts and make sure that you are adequately protected. In a contract with the owner, contractors should negotiate terms that require the owner to defend and indemnify the contractor for third-party claims due to defects that the owner is aware of, but neither notifies the contractor nor gives the contractor an opportunity to correct.

Second, should you, as the contractor, become aware of defects, you must make efforts to correct the work. Rather than doing nothing, as in Brown, you should request an opportunity to visit the site with the owner to assess the alleged defective work and determine what corrective work may need to be performed. If corrective work is required, the contractor should make an offer in writing to perform the work. If, despite making this offer, the owner decides it does not want the corrective work performed, the contractor needs to put the owner on notice that it will not assume any liability if the condition causes an injury to a third party and expects that the owner will defend and indemnify the contractor.

A contractor must create a record showing that it is doing everything in its control to correct the defective condition. This will prove useful if there is an injury to a third party and the contractor is named as a defendant in litigation.

In addition, if you are named as a defendant in a lawsuit or have notice of an injury to a third party, you will want to notify your comprehensive general liability insurance carrier to obtain insurance coverage.

While not addressed in Brown, there may be other defenses if someone is injured due to defects in a contractor’s work. Most notably, if the owner is in possession of the work for an extended period of time, it may be that the owner did something to cause the condition to exist.

In addition, a contractor does not guarantee its work indefinitely. In Pennsylvania, any defective condition must present itself within 12 years from the completion of construction. After such time, there is no cause of action for injuries sustained due to alleged defects in the construction.

Also, in some cases, the third party may bear some responsibility for their injuries. For example, if a plaintiff sees a condition that they believe to be unsafe and ignores the risk, this will likely serve as at least a partial defense to the contractor.

Given the numerous considerations and potential defenses to liability, it is important to address defects before they cause an injury. Should you have any questions about this decision and ways to protect yourself from liability for claims of defective workmanship, contact the lawyers at Cohen Seglias who have the knowledge and experience to guide you and protect your interests.