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Alder v. Bayer Corp.11/26/2002
ow and ice from parking lot). Figueroa, 879 F.2d at 1434; see also Repola v. Morbark Indus., Inc., 934 F.2d 483, 486 n.3 (3d Cir. 1991) (holding that New Jersey law "permits an individual who is not a party to a contract, but who is within the zone of hazard created by the contract's activity, to maintain a cause of action against a contracting party for negligent performance of its contractual responsibilities").
The Utah Court of Appeals adopted section 324 of the Restatement (Second) of Torts in Atkinson v. Stateline Hotel Casino & Resort, 2001 UT App 63, 19 n.6, 21 P.3d 667, stating that
the appellate courts of this state have not previously adopted section 324 of the Restatement (Second) of Torts. Our doing so now, however, is not much of a jurisprudential leap since "the rule stated in [section 324] is [merely] an application of the one stated in [section] 323." Restatement (Second) of Torts ยง 324 cmt. a (1965).
We agree, and extend that adoption to section 324A.
There is no law, evidence, or stipulation indicating that the hospital's exclusive control of the ventilation system relieved AGFA of the duty it had undertaken to install and maintain its machine in a safe and operable condition. Therefore, AGFA's physical undertaking of the installation and maintenance of the Curix machine, which it should have known was necessary for Technicians' safety, conferred a duty of reasonable care in that undertaking under Restatement section 324A.
In order to be subject to liability under section 324A, AGFA must also meet the requirements of at least one of subsections (a), (b), or (c). As the Fifth Circuit Court of Appeals explained in Canipe v. National Loss Control Service Corp., 736 F.2d 1055, 1062 (5th Cir. 1984), subsection (a) of section 324A "requires some change in conditions that increases the risk of harm to the plaintiff over the level that existed before the defendant became involved." See also Turbe v. Gov't of Virgin Islands, 938 F.2d 427, 432 (3d Cir. 1991) (holding under section 324A that street lamp company that failed to replace burned out globe was not liable for nighttime attack on pedestrian); Homer v. Pabst Brewing Co., 806 F.2d 119, 121-23 (7th Cir. 1986) (holding under section 324A that company providing limited medical services to its own employees was not liable to "unidentifiable members of the general public"); Smallwood v. United States, 988 F. Supp. 1479, 1482 (S.D. Ga. 1997) (holding OSHA not liable to employee who stepped in vat of molten metal that OSHA's safety inspection had failed to identify because vats were "hazardous prior to the inspections"); Vaughan v. Edison Co., 719 N.E.2d 520, 525 (Mass. App. Ct. 1999) (holding power company not liable to woman hit by car in crosswalk where street lamps were not working); Wissel v. Ohio High Sch. Athletic Ass'n, 605 N.E.2d 458, 464-67 (Ohio Ct. App. 1992) (holding under section 324A that state high school athletic association was not liable to athlete injured in football game). In Turbe, the Third Circuit Court of Appeals cited Judge Cardozo's opinion in H.R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896, 898 (N.Y. 1928), for the proposition that " he court affirmed the dismissal of the complaint because the [defendant] had not launched a force or instrument of harm, but instead had only failed to facilitate the prevention of harm that occurred through other causes." Turbe, 938 F.2d at 432-33.
In the case before us, however, AGFA's installation of the Curix machine in the smaller, poorly ventilated mammography suite did create a "force or instrument of harm." Technicians' purported chemical exposure would not have occurred in the absence of that installa
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