Key Points

  • The Third Circuit affirmed, 2-1, the Rule 12(b)(6) dismissal of a wrongful-death and survival suit over a worker's fatal fall during demolition of the Hatfield's Ferry Power Station.
  • The majority held that allegations of safety requirements, contract specifications, inspection rights and on-site oversight by FirstEnergy Service do not plead retained control under Pennsylvania law.
  • Drawing on Twombly, the majority derived the pleading standard for retained control from the summary-judgment and post-trial standards Pennsylvania courts apply.
  • The court held that the danger of demolishing a long-shuttered plant was open and obvious, defeating the claim against owner Allegheny Energy Supply, and that the vicarious-liability claim against FirstEnergy Corp. failed with the claim against FirstEnergy Service.
  • Judge Restrepo dissented, arguing that retained control and obviousness are jury questions and that the majority imposed a heightened pleading standard on independent-contractor cases.

A divided federal appeals court on Wednesday upheld the dismissal of a wrongful-death suit brought by the mother of a 29-year-old demolition worker who fell when a catwalk collapsed on a smokestack at a shuttered Pennsylvania power plant. The court held that her complaint did not plausibly make the companies that owned and operated the plant responsible for his death.

Judge Fisher wrote for the U.S. Court of Appeals for the Third Circuit, joined by Judge Bibas. He reasoned that Pennsylvania law generally shields a company that hires an independent contractor from liability to the contractor's employees, and that the complaint alleged too little to bring FirstEnergy Service Co. within the exception for owners that keep control of the work. Judge Restrepo dissented, writing that the majority "prohibitively raises the bar for wrongful death claims brought by employees of independent contractors."

The precedential ruling allows a federal court to decide the retained-control question on a motion to dismiss, before any discovery, when the complaint alleges only safety rules, contract specifications and on-site oversight. "The retained-control exception is difficult to show; an owner does not retain control by imposing safety requirements or contract specifications for the work," Judge Fisher wrote.

Cody Hatt worked for North American Dismantling, which FirstEnergy Service hired under a contract worth more than $4 million to tear down the Hatfield's Ferry Power Station in Carmichaels, Pennsylvania. Allegheny Energy Supply owned the coal-fired plant, and FirstEnergy Corp. and FirstEnergy Service operated it. The plant stopped coal generation in 2013 under pressure from the Environmental Protection Agency, and demolition began in 2022.

On Sept. 28, 2022, Hatt was dismantling a steel catwalk attached to one of the plant's smokestacks when, according to the complaint, the catwalk "catastrophically failed and collapsed." He fell forty feet onto another catwalk and later died at the hospital at West Virginia University. He left two minor children, his father and his mother, Lisa DeBar.

DeBar sued in Pennsylvania state court in June 2024, individually and on behalf of her son's estate. FirstEnergy Service removed the case to the U.S. District Court for the Eastern District of Pennsylvania, where Chief Judge Wendy Beetlestone dismissed the claims against FirstEnergy Corp. and FirstEnergy Service with prejudice and those against Allegheny Energy Supply without prejudice. DeBar chose to stand on her amended complaint rather than replead, and the court converted the dismissal of the claims against Allegheny Energy Supply to a dismissal with prejudice.

Under the Pennsylvania Supreme Court's 2011 decision in Beil v. Telesis Construction, the majority explained, the hiring party's control must extend to the contractor's "methods of work, or as to operative detail." A right to inspect the work, receive reports, stop the job or enforce safety requirements does not meet that test.

DeBar alleged that FirstEnergy Service directed where, when, how and with what equipment the work was done, enforced its own safety manual, and assigned a project manager and a purchaser representative who monitored the job, conducted safety audits and gave instructions to the contractor's crews. The majority reviewed the 24 paragraphs of those allegations "one by one" and found each deficient, either as a bare recital of the legal elements or as a description of safety rules, specifications or oversight that Pennsylvania law treats as insufficient.

DeBar argued that the trial court had held her to a heightened pleading standard by relying on cases decided at summary judgment or after trial. The majority turned to Bell Atlantic Corp. v. Twombly and derived the pleading standard from the later-stage tests. Her complaint failed "because even if it is all true, which it very well may be, FirstEnergy Service would not be liable," Judge Fisher wrote. The court added that DeBar cited no authority "to support the notion that insufficiently pled claims are given extra leeway if the case involves a fatality."

The claim against Allegheny Energy Supply, the plant's owner, failed under a second doctrine. Pennsylvania landowners owe invitees, including contractors' employees, no duty to protect them from dangers that are open and obvious. The majority reasoned that an industrial facility "that has been shuttered for nine years, and is being torn down, could be in disrepair," and that the contractor had represented that it examined the site. "Reasonable minds could not disagree that the danger to Hatt was open and obvious," the majority held.

The claim against FirstEnergy Corp. rested on vicarious liability for FirstEnergy Service's conduct, and it failed because FirstEnergy Service committed no negligence.

In dissent, Judge Restrepo wrote that Pennsylvania treats the degree of retained control as a jury question, which a court may decide only when "the evidence fails to establish the requisite retained control." He wrote that DeBar's allegations about safety audits and instructions to the crews "are specific examples of how FirstEnergy Service retained control," and that "Demanding more risks precluding litigants because they lack granular information only obtainable through the discovery process."

Judge Restrepo also faulted the open-and-obvious ruling. "The complaint does not state that the Power Station, let alone the relevant catwalk, was in disrepair," he wrote. He concluded: "The Majority has introduced a heightened pleading standard for independent contractor cases that I fear will stifle worthy claims." The majority replied that it had not borrowed later-stage standards uncritically and had "carefully followed the lead of the Supreme Court when faced with a similar question."

Jeffrey P. Goodman of Saltz Mongeluzzi & Bendesky argued for DeBar. Andrew R. Sperl of Duane Morris argued for the companies.

The ruling affirms the District Court's judgment and leaves in place the with-prejudice dismissal of the claims against FirstEnergy Service, FirstEnergy Corp. and Allegheny Energy Supply.