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Farabaugh v. Pennsylvania Turnpike Commission9/13/2004
Jane A. Farabaugh (Farabaugh), individually and as administrator of the estate of her deceased husband Henry J. Farabaugh (Decedent), appeals from an order of the Court of Common Pleas of Allegheny County granting motions for summary judgment filed by Trumbull Corporation (Trumbull) and the Turnpike Commission (Commission) in the above-referenced wrongful death and survival action arising from Decedent's death. Farabaugh contends that the trial court erred in finding that Trumbull's negligence was not the cause of Decedent's death, in concluding that Trumbull owed no duty to Decedent and in holding that suit against the Commission was barred by sovereign immunity.
I.
Decedent worked for New Enterprise Stone and Lime Company (NESL), which was awarded a contract by the Commission to construct a portion of the Mon/Fayette Expressway known as Construction Section 52 H. Trumbull had been contracted to act as construction manager. On December 1, 1999, Decedent was operating a loaded, heavy-duty, off-road dump truck referred to as a "Euclid" on a haul road, which was an unpaved road built into a hillside to allow hauling of dirt and other materials to various sites on the project. Tragically, the truck fell down a twenty-eight foot embankment and landed upside down in four feet of water, killing Decedent. Farabaugh instituted her wrongful death and survival actions against the Commission and against Trumbull, in which she alleged that the haul road collapsed and caused the truck to fall and that the Commission and Trumbull failed to take necessary action to properly support and stabilize the haul road and failed to inspect it properly, among other allegations.
Following extensive discovery, the Commission and Trumbull filed their motions for summary judgment. After oral argument, the trial court granted the motions. The trial court first noted that provisions of the contract between NESL and the Commission state that NESL is solely responsible for the safety and welfare of its employees and for the protection of property and that nothing in the contract documents should act to make the Commission, the engineer or any party other than NESL solely responsible for safety. The court also quoted Trumbull's Technical Proposal, which was made part of the parties' "Open-End Inspection Agreement" and which made broad commitments regarding project safety.
On the Commission's motion based upon sovereign immunity, the trial court first referred to the general rule that an employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servant. Ortiz v. Ra-El Dev. Corp., 528 A.2d 1355 (Pa. Super. 1987). The court concluded that an exception where the work involves peculiar risk, foreseeable at the time of making the contract and different from the ordinary risk associated with the type of work, did not apply to Decedent's routine activity of driving a dump truck on a haul road. The court stated that the acts of third parties are not a basis for applying the real estate exception to sovereign immunity contained in Section 8522(b)(4) of the Judicial Code, 42 Pa. C.S. ยง8522(b)(4), and that excerpts from depositions showed that NESL was solely responsible for building and maintaining the haul road. As to the contention that the Commission retained significant control over the premises, the court stated that a videotape shown to all workers referring to persons making safety audits who could suggest ways to reduce hazards did not show such control. In Celender v. Allegheny County Sanitary Authority, 222 A.2d 461 (Pa. Super. 1966), it was held that the owner must retain some control over the manner in which work is
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