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Farabaugh v. Pennsylvania Turnpike Commission9/13/2004
done, not merely a general right to have work stopped or to inspect or to make suggestions.
In regard to Trumbull's motion for summary judgment, the trial court cited deposition testimony that Trumbull's role was in an oversight capacity and that the monitor could discuss safety issues with NESL's safety representative but did not have authority to recommend how to resolve the issue. NESL's safety plan, approved by the Trumbull safety and insurance monitor, did not deal with haul roads. The court cited Leonard v. Commonwealth, Department of Transportation, 565 Pa. 101, 771 A.2d 1238 (2001), where an employee of a sub-subcontractor erecting structural steel was injured in a fall attributable to inadequate safety inspections and procedures, but the contractor hired for supplemental inspections and safety monitoring had no duty because it had not been directed to inspect the area where the injury occurred. Also the court rejected Farabaugh's argument based upon Section 324A of the Restatement (Second) of Torts, relating to liability to third persons for negligent performance of an undertaking. The court noted that in Heath v. Huth Engineers, Inc., 420 A.2d 758 (Pa. Super. 1980), a consulting engineer was held liable to a contractor's employee injured in a trench collapse where the design lacked required bracing and an employee of the engineer was overseeing progress but that Farabaugh had not shown what caused the accident so as to connect it to an alleged breach of duty by Trumbull.
Even if Trumbull owed a duty to Decedent, the court stated, Farabaugh had failed to produce any evidence from which a reasonable juror could find that Trumbull caused Decedent's accident. She asserted in her brief that the haul road was cut into a hillside, that vehicles traveled up a steep embankment, that excavation had taken place at the base of the slope and that the side of the road lacked a defined berm, but she did not support these assertions by citation to depositions or other products of discovery, did not explain how they contributed and most importantly did not explain how Trumbull was responsible for any of the factors. That is, the court concluded that Farabaugh had not introduced evidence that Trumbull's act or omission increased the risk of harm so as to create a jury question as to whether that increased risk was a substantial factor in causing the harm that followed. See Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).
II.
Farabaugh first contends that sufficient evidence was presented to establish that Trumbull's negligence was the cause of Decedent's death. Whether an actor's conduct was a substantial cause of injuries ordinarily is a question of fact for the jury, which may be removed from the jury only when it is clear that reasonable minds cannot differ on the issue. Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643 (Pa. Super. 2002). Farabaugh asserts that Trumbull's liability may flow from negligent inspection. Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961) (holding that nature of undertaking to perform regular inspection and maintenance of elevator was such that negligent inspection could be determined to cause injury to employee and could give rise to liability by inspector). Trumbull had a duty to inspect the project site, including the haul road. William B. Boots, the insurance/safety monitor, testified that as senior loss-control consultant he would look at haul roads to assure that they were not inherently hazardous. Joint Appendix to Plaintiff's Brief in Opposition to Motions for Summary Judgment (Joint Appendix), Ex. C, Deposition of Boots, p. 69, R. 503a. Farabaugh's expert Joginder S. Bhore stated that Trumbull, as the construction manager
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