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Farabaugh v. Pennsylvania Turnpike Commission9/13/2004
and representative of the owner, was required to assure that the work was done in the safest manner possible. Id., Ex. N, Report of Bhore, p. 1, R. 541a.
The record establishes that the haul road was in an area that had been undercut to remove a coal seam. Id., Ex. C., Deposition of Boots, p. 72, R. 504a. Farabaugh maintains that photographs of the scene support an inference that the roadway collapsed. Id., Ex. H, R. 530a - 533a. An employee of NESL and witness to the accident said that there appeared to be no berm to the haul road in the area where it occurred. Appendix to Commission's Motion for Summary Judgment (Commission Appendix), Deposition of Allan Alexander, p. 54, R. 165a. The expert report of Bhore referred to lack of safety berm among other safety problems with the haul road. Joint Appendix, Ex. N, Report of Bhore, p. 2, R. 542a. The trial court, however, did not mention the expert report that Farabaugh submitted in opposition to the motion. See Coolbaugh v. Commonwealth, Department of Transportation, 816 A.2d 307 (Pa. Super. 2003) (court reversed grant of summary judgment in favor of defendant contractor based upon the "government contractor" defense where plaintiff's expert reports created jury issue as to whether the contractor completed work in a negligent manner). Farabaugh contends that she introduced sufficient evidence that Trumbull's negligent act or omission increased the risk so as to withstand the motion for summary judgment.
The Commission and Trumbull respond in Part II of their argument that proximate cause is primarily a question of law which must be determined by a judge before actual cause is put to the jury. They cite Bell v. Irace, 619 A.2d 365 (Pa. Super. 1993), although that case held simply that the chain of causation would be limited to the point where an actor reasonably could be expected to foresee that his or her actions would be the source of injury . The Commission and Trumbull contend that no evidence indicates that Trumbull built or maintained the haul road, that it caused Decedent to use that road or to drive the Euclid truck or that it caused him to drive off the roadway. They state that Bhore's report is not based upon citation to the record, is not supported by citation to academic or legal sources and does not explain how claims of steep grades, narrow width, faulty super elevation, lack of proper drainage and the absence of a safety berm, even if true, caused Decedent's accident.
Based on its review, the Court concludes that sufficient evidence was developed in discovery and in Farabaugh's response to the motions to create a jury question as to whether Trumbull's conduct was a substantial factor in causing the accident. If a duty to inspect and to make a machine or a worksite safe has been undertaken, then negligent failure to inspect may be determined to be a substantial factor in causing an injury . Otis Elevator Co. Relevant testimony calls into question whether there was a safety berm at the point where the accident occurred; there was no barrier delimiting the portion of the road on which it was safe for heavy equipment to travel. Commission Appendix, Deposition of Alexander, R. 398a 399a. Farabaugh is correct that the trial court erred to the extent that it concluded that Trumbull must have created unsafe conditions in order for it to be responsible and that reasonable minds could not differ on the question of whether Trumbull's conduct was a substantial factor in bringing about the harm.
III.
Farabaugh also contests the trial court's conclusion that she did not present evidence to establish that Trumbull owed a duty of care to Decedent. She quotes from the commitments Trumbull made in regard to safety.
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