Grainy v. Campbell

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Author: Larsen
• Citation: 493 Pa. 88,425 A.2d 379
• Parties: Thomas A. GRAINY, a minor, by Thomas F. Grainy and Dorothy A. Grainy, his parents and natural guardians and Thomas F. Grainy and Dorothy A. Grainy, in their own rights, Appellees, v. Bruce A. CAMPBELL, an individual, Turner Dairy Farms, Inc., a corporation, Charles G. Turner, an individual, Lydia C. Turner, an individual, Appellants, v. M. O'HERRON CO., a corporation and Peoples Natural Gas Company, a corporation, Appellees.
• Decision Date: 04 February 1981

425 A.2d 379

493 Pa. 88

Thomas A. GRAINY, a minor, by Thomas F. Grainy and Dorothy A. Grainy, his parents and natural guardians and Thomas F. Grainy and Dorothy A. Grainy, in their own rights, Appellees,
v.
Bruce A. CAMPBELL, an individual, Turner Dairy Farms, Inc.,

a corporation, Charles G. Turner, an individual,

Lydia C. Turner, an individual, Appellants,
v.
M. O'HERRON CO., a corporation and Peoples Natural Gas

Company, a corporation, Appellees.

Supreme Court of Pennsylvania.

February 4, 1981

Argued Oct. 1, 1980. [425 A.2d 380]

[493 Pa. 89] James E. Coyne, Weis & Weis, Pittsburgh, for appellants.

Robert E. Wayman, Pittsburgh, for M. O'Herron Co.

Harry Zimmer, Pittsburgh, for Thomas Grainy, et al.

John R. Kenrick, Pittsburgh, for Peoples Natural Gas Co.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION OF THE COURT

LARSEN, Justice.

This negligence action raises the question of whether an intervening negligent act of a second actor will discharge a first actor's liability for antecedent negligence.

[493 Pa. 90] In 1971, appellee M. O'Herron Co. (contractor) was replacing a gas pipeline for appellee Peoples Natural Gas Co. (gas company) along Saltsburg Road in Plum Township, Allegheny County. An uncovered excavation, which was barricaded with metal horses and dirt, obstructed the entire berm on the north side of Satlsburg Road.

Appellee Thomas A. Grainy, age 12, was in a single file line of Boy Scouts hiking eastbound on the berm of Saltsburg Road. These Scouts encountered the excavation. At the same time a truck with a trailer driven by appellant Bruce A. Campbell (truck driver) and owned by appellant Turner Dairy Farms, Inc. (truck driver's employer) was approaching the excavation westbound on the same side of the highway. When the truck driver was about three hundred feet away, he observed the approaching Boy Scouts and the excavation, and moved his truck partially over the double yellow center line of the two-lane highway since there was no on-coming traffic. One of the Scouts, observing that the truck had moved to accommodate their passage, proceeded around the excavation on the paved roadway and Thomas Grainy followed. Although there was no on-coming traffic, the truck driver moved back into the westbound lane as he passed the boys. Thomas Grainy was struck and thrown into the excavation, suffering severe injuries. This lawsuit ensued.

In the trial court the jury returned a verdict in favor of Thomas Grainy against the truck driver, his employer, the contractor, and the gas company. All defendants filed motions for judgment n. o. v. but these were denied.

The Superior Court affirmed the judgment against the driver and his employer but reversed the judgment against the contractor and gas company holding that the truck driver's intervening negligence discharged the liability of the contractor and gas company as a matter of law. Grainy v. Campbell, 269 Pa.Super. 225, 409 A.2d 860 (1979). Petition for allowance of appeal was granted to resolve confusion in Pennsylvania case law as to when intervening negligence terminates liability for antecedent negligence.

[493 Pa. 91] The Superior Court held that Kline v. Moyer, 325 Pa. 357, 191 A. 43 (1937) (hereinafter cited as Kline) governed this case. In [425 A.2d 381] Kline the first actor left a broken down vehicle unattended on a two lane highway at dusk. The second actor approached the stranded car and attempted to pass in the opposite lane but was involved in a head-on collision with the plaintiff. The Kline Court granted a new trial in which the following test of liability was to be applied:

Where a second actor has become aware of the existence of a potential danger created by the negligence of an original tort-feasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause. Id. at 364, 191 A. at 46.

Since the truck driver in this case was aware of the potential danger of the Scouts and the excavation (the driver moved the truck over the center line) and since the truck driver negligently struck Grainy while passing by, the Superior Court correctly held that under Kline the contractor and the gas company were relieved of liability for negligently obstructing the berm.

The Restatement (Second) of Torts, § 447 (1965) (hereinafter cited as § 447) also formulates a test of when intervening negligence will relieve antecedent negligence. ^[1] In § 447, the liability of the first actor continues whenever: (a) the first actor "should have realized" that the second actor [493 Pa. 92] "might so act"; (b) a reasonable man would not regard the second actor's action as "highly extraordinary"; or (c) the second actor's conduct is a "normal consequence of the situation created" by the first actor and "not extraordinarily negligent."

Section 447 of the Restatement (Second) of Torts has been adopted as Pennsylvania law. In Estate of Flickinger v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973) (hereinafter cited as Flickinger) this Court stated that: "The controlling rule of law in Pennsylvania on the extent of liability of a negligent actor, i. e., the law of proximate causation, where that question is presented in the light of an intervening act of negligence, is contained in section 447 of the Restatement (Second) of Torts (1965): ..." Id. at 74, 305 A.2d at 43 (footnote omitted, emphasis in the original). ^[2]

It is clear that if we apply § 447 the liability of the contractor and the gas company has not been relieved by the intervening negligent act of the truck driver. Under § 447, liability continues if either clause (a), (b), or (c) is applicable. In fact, in this case, all three are applicable.

Section 447(a): When the contractor and gas company blocked the berm there was a "realizable likelihood" that a pedestrian would be forced to use the roadway and be [425 A.2d 382] struck by a negligently driven passing vehicle. See Noon v. Knavel, 234 Pa.Super. 198, 339 A.2d 545...