Casselbury v. American Food Serv.

Decision Date12 October 2011
Docket NumberNo. 217 MDA 2011,217 MDA 2011
CourtPennsylvania Superior Court

Appeal from the Order entered December 29, 2010,

Court of Common Pleas, Bradford County,

Civil Division at No. 584 CV 2007



Appellants, George Casselbury ("Mr. Casselbury") and Jackie Casselbury ("Mrs. Casselbury" individually, and collectively with Mr. Casselbury, "the Casselburys"), appeal from the trial court's December 29, 2010 order granting summary judgment in favor of Appellee, American Food Service ("AFS"). We reverse and remand.

The record reflects that Mr. Casselbury worked at the OSRAM/Sylvania ("OSRAM") industrial plant in Towanda, Pennsylvania. Pursuant to a contract between OSRAM and AFS, AFS provided food services at the OSRAM cafeteria. On July 24, 2006, Mr. Casselbury slipped and fell while walking near a dumpster outside the OSRAM plant, suffering injuries. Mr. Casselbury believed he slipped on cooking oil that was leaking from the dumpster. Subsequently, the Casselburys initiated this tort action against AFS, allegingthat AFS breached its duty to dispose of cooking oil properly, and that AFS' breach of its duty caused physical injuries to Mr. Casselbury. Mrs. Casselbury asserted a loss of consortium claim.

After the parties conducted discovery, AFS filed a motion for summary judgment pursuant to Pa.R.C.P. 1035.2. The trial court heard oral argument on May 7, 2010 and granted AFS' motion on December 29, 2010. This timely appeal followed.1

The Casselburys raise three arguments for our review:

A. Whether [the Casselburys] have put forth sufficient evidence to establish that [AFS] owed a duty to [Mr. Casselbury] and such duty was breached?
B. Whether [the Casselburys] have established a genuine issue of material fact, through the witness' testimony, so as to preclude the granting of summary judgment?
C. Whether the expert report of Kenneth T. Vail, in and of itself, should have preclude [sic] the granting of summary judgment?

The Casselburys' Brief at 2.

Each of the Casselburys' issues challenges the trial court's finding that no triable issue of fact exists as to whether AFS owed a duty to Mr. Casselbury and breached it. We will therefore address the Casselburys' issues together. Rule 1035.2 provides that summary judgment is appropriate under the following circumstances:

(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. 1035.2.

We review the trial court's order granting summary judgment according to the following standard:

When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. In so doing, thetrial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment where the right to such judgment is clear and free from all doubt.
On appellate review, then, an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals.

Summers v. Certainteed Corp., 606 Pa. 294, 307, 997 A.2d 1152, 1159 (2010) (internal citations and quotation marks omitted).

In order to prevail on a negligence cause of action, Mr. Casselbury must establish that AFS owed him a duty, that AFS breached that duty, and that Mr. Casselbury suffered damage as a result of AFS' breach. See Merlini v. Gallitzin Water Auth., 602 Pa. 346, 354, 980 A.2d 502, 506 (2009). The Casselburys argue that AFS' duty in this case arises from the contract between AFS and OSRAM. The Casselburys rely on § 324A of the Restatement (Second) of Torts, which provides as follows:

§ 324A Liability to Third Person for Negligent Performance of Undertaking
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.

Restatement (Second) of Torts, § 324A.

Addressing the applicability of § 324A to a case where the alleged duty arises from a contract, our Supreme Court has written:

Generally, a party to a contract does not become liable for a breach thereof to one who is not a party thereto. However, a party to a contract by the very nature of his contractual undertaking may place himself in such a position that the law will impose upon him a duty to perform his contractual undertaking in such manner that third persons -strangers to the contract - will not be injured thereby[.] It is not the contract per se which creates the duty; it is the law which imposes the duty because of the nature of the undertaking in the contract.

Farabaugh v. Pa. Tpk. Comm'n, 590 Pa. 46, 77-78, 911 A.2d 1264, 1283 (2006). In Farabaugh, the plaintiff alleged that the defendant construction manager breached its duty to maintain the safety of a haul road on the construction site. Id. at 68-69, 911 A.2d at 1278. The plaintiff's decedent was killed when his truck rolled over while traversing an allegedly defectively maintained haul road. Id. at 54; 911 A.2d at 1268-69. The plaintiff's decedent worked for a contractor that did not have a direct contractual relationship with the construction manager. Id. at 52-54, 911 A.2d at 1268-69. The Supreme Court concluded that summary judgment in favor of the construction manager was inappropriate, because the construction manager was contractually bound to take an active role in ensuring the safety of the construction site. Id. at 52, 76-77, 911 A.2d at 1267-68, 1282. Thus, the construction manager owed a duty to third parties who relied on the safety of the construction site. Id.

Likewise, in Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961), the Supreme Court affirmed a judgment in favor of the plaintiff employee against the company that plaintiff's employer hired to maintain an elevator. The plaintiff sustained injuries when the elevator stopped suddenly and a roof board from the elevator fell on the plaintiff's head. Id. at 17-18, 168 A.2d at 575. The elevator company argued it had no duty to the employee, who was not a party to the contract. Id. The Supreme Court disagreed:

If a person undertakes by contract to make periodic examinations and inspections of equipment, such as elevators, he should reasonably foresee that a normal and natural result of his failure to properly perform such undertaking might result in injury not only to the owner of the equipment but also third persons, including the owner's employees[.]

Id. at 18; 168 A.2d at 575-76.

This Court recently had occasion to consider § 324A in Reeser v. NGK North American, Inc., 14 A.3d 896 (Pa. Super. 2011). In Reeser, the plaintiff suffered from chronic beryllium disease ("CBD"), as a result ofparticles emanating from a beryllium plant near the plaintiff's home. Id. at 897. Among the parties sued by the plaintiff was an engineering firm hired by the plant to measure the amount of beryllium particles discharged into the air. Id. The engineering firm's tests revealed that the amount of beryllium particles discharged from the plant far exceeded allowable levels as determined by the Environmental Protection Agency ("EPA"), and the firm reported the results of its tests to the plant but took no steps to warn the public. Id. Though the plaintiff was not a party to the contract between the engineering firm and the plant, the plaintiff alleged that the firm should have known that the purpose of the tests it was hired to conduct was to protect the public from unsafe levels of beryllium in the atmosphere. Id. at 898.

Upon reviewing case law from other states and from our federal courts, this Court concluded that the engineering firm did not owe a duty to the plaintiff because it did not specifically undertake an obligation to protect the public. Id. at 898-901. That is, the only obligation the engineering firm undertook was to measure and report to the plant the levels of beryllium emanating from the plant. This Court distinguished Farabaugh and Otis Elevator as follows:

In each of those cases, the defendant undertook responsibility for the safety of the subject of the contract, i.e., the elevator and the construction site. In doing so, the defendants' duty extended to third parties whose use of the elevator in Evans and the construction site in Farabaugh was foreseeable. In the instant case, [the engineeringfirm] undertook no duty with respect to performing remedial action to enhance safety. Rather, [the engineering firm] undertook the duty to test the emissions and report correctly the results to the owner of the Reading plant; it did not undertake responsibility for the maintenance or safe design of the facility. Further, unlike in [Otis Elevator] and Farabaugh, there is no contention

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