Farabaugh v. Pennsylvania Turnpike Com'n

Decision Date28 December 2006
Citation911 A.2d 1264
PartiesJane FARABAUGH, Individually and as Administratrix of the Estate of Henry J. Farabaugh, Deceased, Appellee, v. PENNSYLVANIA TURNPIKE COMMISSION and Trumbull Corporation, Appellants.
CourtPennsylvania Supreme Court

Thomas A. Berret, Esq., Pittsburgh, for Jane A. Farabaugh.



Justice BAER.

In December 1999, James Farabaugh (Decedent) suffered a fatal accident while driving an off-highway dump truck within the scope of his employment with New Enterprise Stone & Lime (NESL),1 the general contractor on a construction site owned by the Pennsylvania Turnpike Commission (PTC). His wife and administratrix of his estate, Jane Farabaugh, plaintiff/appellee herein (Plaintiff), brought a wrongful death and survival action against PTC and the construction manager of the project, Trumbull Corporation (Trumbull), appellants herein, (collectively Defendants). After discovery, the trial court granted PTC's and Trumbull's motions for summary judgment. In an unpublished decision, the Commonwealth Court reversed summary judgment as to PTC, finding that issues of fact remained concerning the applicability of an exception to PTC's assertion of sovereign immunity. Additionally, the court reversed the summary judgment awarded to Trumbull, concluding that Trumbull owed a duty of care to Decedent and that a question of fact remained as to whether Trumbull's conduct was a substantial factor in causing Decedent's injury.

We granted allowance of appeal limited to the following two questions:

Whether the Commonwealth Court erroneously held that the Pennsylvania Turnpike Commission had a common law duty to warn the decedent's employer of any obvious conditions created by the general contractor?

Whether guidance by the Supreme Court is necessary because the scope of a construction manager's duty to a contractor's employee is an issue of first impression in the Commonwealth?2

Farabaugh v. Penna. Tpk. Comm'n and Trumbull Corp., 584 Pa. 160, 882 A.2d 1003 (2005). After reviewing the evidence and the relevant law, we reverse the Commonwealth Court in regard to PTC's motion for summary judgment, and conclude that Plaintiff failed to present a common-law cause of action sufficient to prevent summary judgment in favor of PTC, even viewing the facts in a light most favorable to Plaintiff.3

In regard to Trumbull's motion for summary judgment, we refuse to apply an unduly rigid standard in determining the duty construction managers owe to employees of contractors and, instead, acknowledge that a construction manager's duty is defined by the intent of the contracting parties as reflected by their contractual designation of responsibilities. Under the relevant contract language, we conclude that Trumbull owed a duty of care to Decedent based upon its contractual obligation to perform safety inspections and other monitoring functions. A determination of the scope of the duty and whether this duty was breached, however, requires further development of the record regarding Trumbull's role on the jobsite and the proximate cause of the accident. Accordingly, we affirm the Commonwealth Court's reversal of summary judgment as to Trumbull and remand for further proceedings consistent therewith.

The accident in this case occurred during the construction of a section of the Mon/Fayette Expressway designed to link Interstate 70 in Fallowfield Township, Washington County, with Pennsylvania Route 51 in Jefferson Hills Borough, Allegheny County. PTC owned the site and employed Trumbull as the "construction manager." Under the terms of its contract with PTC, Trumbull was to administer, manage, and oversee the construction of several sections of the expressway. Its responsibilities included reviewing and monitoring the on-site safety procedures of the other contractors.4 When viewed in a light most favorable to the Plaintiff, the record suggests that Trumbull's supervision encompassed haul roads, given testimony that Trumbull inspectors had authority to take action regarding safety violations on haul roads and that its inspectors had the authority to stop work if they perceived a dangerous condition.5

Decedent's employer, NESL contracted directly with PTC to be the general contractor of Section 52H of the project, which included the construction of an interchange with toll collection facilities. As part of the project, NESL constructed temporary unpaved haul roads, or access roads, to allow for the transport of materials from one section of the project to another. NESL did not have any contractual relationship with Trumbull and assumed all liability for injuries to its employees on site in its contract with PTC. NESL agreed that "acceptance of the [NESL's] Safety Program shall not relieve or decrease the liability of [NESL] for Safety." PTC-NESL Contract at 29. Additionally, NESL agreed that "[n]o provision of these contract documents shall act to make [PTC], the Engineer or any party other than [NESL] solely responsible for safety." Id.

On the afternoon of December 1, 1999, NESL asked Decedent, who usually drove water trucks on the site, to drive a loaded, heavy duty, off-highway dump truck up a hill on one of the haul roads even though he had never driven that type of truck on this worksite. Testimony revealed that Decedent was apprehensive about driving this type of truck, but nonetheless, he took the assignment. While Trumbull contends that Decedent drove off the road to avoid an on-coming grader despite having sufficient room to pass, Plaintiff asserts that the haul road collapsed because of the instability in the hill caused by coal seams.6 Alternatively, Plaintiff alleged that the haul road did not comply with necessary safety measures given, inter alia, an insufficient berm, the width and grade of the road, and the icy weather conditions. Regardless of the cause, Decedent suffered fatal injuries when the truck plunged down a twenty-eight-foot embankment and landed upside down in four feet of water.

In August 2000, Plaintiff filed a complaint against PTC and Trumbull asserting claims pursuant to Pennsylvania's Wrongful Death and Survival Acts, see 42 Pa.C.S. §§ 8301, 8302, alleging that Trumbull and PTC's negligence was a proximate cause of Decedent's death. Plaintiff alleged, inter alia, that PTC, as owner of the worksite, breached its common law duty to make the premises reasonably safe for the employees of the contractors, to furnish a work area free of recognized and observable hazards, to take necessary action to support and stabilize the haul road, and to require that the haul road be constructed, graded, maintained, and inspected properly. Plaintiff specifically alleged that the haul road should have been equipped with various safety features such as flaggers to direct traffic, barricades, or radio contact for the truck drivers. Plaintiff raised similar claims against Trumbull, again contending that Trumbull failed in multiple ways to require the proper construction and maintenance of the haul road and failed to inspect the road.

After extensive discovery, PTC and Trumbull filed motions for summary judgment. Initially, we will address all issues relating to PTC's summary judgment motion, turning our attention in Part II to Trumbull's motion.

I. PTC Summary Judgment Motion

We reiterate that pursuant to our limited grant of allocatur we address only those aspects of the courts' decisions and the parties' arguments relevant to whether Plaintiff had a common-law cause of action against PTC. See supra at 2 n. 2. To highlight the significance of this question, we must consider it in the context of the entire case. In its summary judgment motion, PTC asserted the defense of sovereign immunity as a Commonwealth party. Any assertion of sovereign immunity, however, is subject to the exceptions provided in 42 Pa.C.S. § 8522:

§ 8522. Exceptions to sovereign immunity

(a) Liability imposed.—The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) ..., sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law ... if the injury were caused by a person not having available the defense of sovereign immunity.

(b) Acts which may impose liability.— The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:

* * * *

(4) Commonwealth real estate, highways and sidewalks.—A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, lease-holds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency....

42 Pa.C.S. § 8522 (emphasis added). The question this Court accepted for review concerns subsection (a) of Section 8522— whether under these facts Plaintiff could assert a common-law cause of action against a party, who unlike PTC, did not have available the defense of sovereign immunity.

After PTC asserted the defense of sovereign immunity in its motion for summary judgment, Plaintiff alleged that the case fulfilled the requirements of the exception set forth in Section 8522(a). She maintained, generally, that a common law cause of action sounding in negligence could be asserted against a non-Commonwealth landowner based on a landowner's duty to the employees of an independent contractor. While the theories underlying the alleged duty...

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