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Farabaugh v. Pennsylvania Turnpike Commission9/13/2004
See n1, above. Trumbull's representatives testified that they had the authority to stop work whenever it appeared to be dangerous until a hazardous condition was corrected. Joint Appendix, Ex. C, Deposition of Boots, p. 65, R. 502a; Ex. G, Deposition of Thomas A. Carey at 23 - 24, R. 523a - 524a. Another Trumbull employee testified that his job duties were to inspect the sites periodically, sometimes daily if necessary, to make sure that contractors were following their own safety requirements and those of the Commission and OSHA requirements. Id.. Ex. D, Deposition of Richard McElhaney, p. 33, R. 508a. Boots agreed that use of haul roads is standard throughout such a construction project and that in his capacity as senior loss control consultant he would be looking at those haul roads as part of the construction site to assure that there was nothing inherently hazardous in them. Id., Ex. C, Deposition of Boots p. 69, R. 503a. This is contrary to the trial court's erroneous conclusion that Trumbull's safety duties did not extend to haul roads.
In addition, there is a general duty not to perform contracts in such a manner that third persons are injured. In Heath the court held that Huth, the engineer, was liable under a theory that the employee was a beneficiary of the contract between the sewer authority and the contractor or under Section 324A of the Restatement (Second) of Torts (1965). Section 324A provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
The court stated that Huth was properly found liable under either theory:
The contract between Huth and [the authority] provided that Huth was to supervise the work, periodically inspect it, and assist in safeguarding the owner against defects and deficiencies on the part of the contractors. Huth was clearly negligent under the evidence for failure to properly supervise the job and inspect the work pursuant to its contract. Huth's liability under Section 324(a) is clear under the evidence in its failure to exercise reasonable care.
Heath, 420 A.2d at 759. Farabaugh argues that Trumbull similarly had a duty to inspect to assure that work was done safely, and it failed to perform this duty.
The Commission and Trumbull maintain in response that whether a duty of care exists is a question of law. Huddleston v. Infertility Center of America, Inc., 700 A.2d 453 (Pa. Super. 1997). The Supreme Court has stated that a construction manager's work "goes directly to the overall success of the project to see that the contract is fully complied with as to the quantity and quality of material and workmanship." Malloy v. Boyertown Area School Board, 540 Pa. 308, 317, 657 A.2d 915, 920 (1995). Trumbull assumed general construction management duties of administration, management, coordination and inspection; the safety responsibilities that it undertook were of an oversight nature also. Haul roads were not part of the project being constructed by NESL; they were ever- changing access roadways designed, built and maintained as part of the means and methods of construction. NESL employees testified that Trumbull personnel did not exercise day-to-day control over the manner in wh
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