Hawthorne v. Dravo Corp., Keystone Div.
| Decision Date | 22 April 1983 |
| Citation | 313 Pa.Super. 436,460 A.2d 266 |
| Parties | Charles W. HAWTHORNE, Sr., Administrator of the Estate of Richard Daniel Hawthorne, Deceased, Appellant, v. DRAVO CORPORATION, KEYSTONE DIVISION, v. BOROUGH OF INDUSTRY. |
| Court | Pennsylvania Superior Court |
Argued Oct. 13, 1982.
John Albert Miller, Beaver, for appellant.
Oran W. Panner, Beaver, for Dravo, appellee.
Bernard J. McAuley, Pittsburgh, for Borough of Industry appellee.
Before CERCONE, P.J., and WIEAND and BECK, JJ.
Richard D Hawthorne was drowned when the vehicle which he permitted to drift into the shallow waters of the Ohio River suddenly plunged into deep water because of dredging operations which had been conducted unexpectedly close to the river's edge. The administrator of his estate commenced an action in trespass against Dravo Corporation, which had conducted dredging operations pursuant to permit granted by the Pennsylvania Department of Environmental Resources (DER). [1] After the plaintiff's evidence had been presented, the trial court entered a compulsory nonsuit which the court en banc refused to remove. Plaintiff appealed. [2] We reverse and remand.
When we review the entry of a compulsory nonsuit, this " " Lavely v. Wolota, 253 Pa.Super. 196, 199, 384 A.2d 1298, 1300 (1978), quoting Norton v. The City of Easton, 249 Pa.Super. 520, 523-524, 378 A.2d 417, 419 (1977). Accord: McNally v. Liebowitz, 498 Pa. 163, 170, 445 A.2d 716, 719 (1982); Kline v. Ball, 306 Pa.Super. 284, ---, 452 A.2d 727, 728 (1982); Barney v. Foradas, 305 Pa.Super. 404, ---, 451 A.2d 710, 712 (1982); Treadway v. Ebert Motor Co., 292 Pa.Super. 41, 46, 436 A.2d 994, 997 (1981); Duke and Co. v. Anderson, 275 Pa.Super. 65, 66-67, 418 A.2d 613, 614 (1980); Gill v. McGraw Electric Co., 264 Pa.Super. 368, 378, 399 A.2d 1095, 1100 (1979).
The record, when examined in the light most favorable to appellant, discloses that at or about midnight on November 11, 1974, the decedent drove a borrowed vehicle down Canton Street, in the Borough of Industry, Beaver County, to the edge of the Ohio River at a place known as Maude's Landing. There, he, his girlfriend, Betsy Wardle, and two other passengers sat and looked at the lights on the opposite side of the river. The night was dark and foggy, however, and Betsy made several requests that they leave. Appellant's decedent acceded to Betsy's requests and began to shift the vehicle's standard transmission into reverse. As he did so, the vehicle drifted forward a short distance and suddenly plunged into deep water. Betsy and the two additional passengers escaped by exiting the vehicle through a rear window. The vehicle came to rest on its roof in 20-25 feet of water at a distance of 10-15 feet from the shore.
The area at the end of Canton Street, known as Maude's Landing or the "public ramp," had been used for many years by area residents for launching boats, washing cars, swimming, wading and fishing. The river bottom in that vicinity had been leveled and filled with cement and slag many years before to facilitate boat launching, and a sand and gravel bar extended from the shoreline toward the middle of the river. Thus, the floor of the river had sloped gradually from the shoreline for a distance of between 30 and 50 feet. The sand bar had been covered by water varying in depth from a few inches at river's edge to a few feet further from the shore. Area residents, including the decedent and his family, had driven their cars into the shallow water at the end of Canton Street in order to wash them and had backed their boat trailers and cars into the water in order to launch boats into and retrieve boats from the Ohio River. Sometime between September 30, 1974 and November 11, 1974 the sand bar at Maude's Landing was removed by Dravo's dredging operation, and a steep drop-off into deep water was created at or near the river's edge.
Appellant contended in his complaint and at trial that Dravo had been negligent in removing the sand bar and in creating a sharp drop-off into deep water by dredging in violation of the permit which allowed its operations only at a distance of 25 feet from the shore. He also alleged that Dravo had been negligent for failing to remedy the resulting dangerous condition and for failing to warn members of the public that a concealed, dangerous condition had been created. Paragraph 18 of the permit issued by DER provided: "this permit is only valid for channel dredging no closer than the depth of dredging but no closer than 25 feet from the channel shoreline or island shorelines at normal pool elevations." No evidence was offered concerning the depth of the dredging being conducted by Dravo. There was evidence, however, that substantial dredging had been accomplished much closer to the shoreline than twenty-five feet. The trial court concluded that this restriction on appellee's dredging operations was not intended to protect occupants of vehicles which intruded upon the waters of the river. When the decedent allowed his vehicle to enter the river, his conduct was not foreseeable; and, therefore, he was not within the orbit of care which Dravo was required to exercise in conducting dredging operations. As to the decedent, the court held, Dravo owed no duty and could not be found negligent.
The permit which had been issued to Dravo was for commercial dredging pursuant to provisions of Section 1908-A of the Administrative Code of April 9, 1929, P.L. 177, as amended, 71 P.S. § 510-8. [3] This section provided:
Under the authority of this statute, DER was permitted to impose conditions, such as precluding dredging within an established distance from shore, for the purpose of preserving the integrity of land and improvements along the river and also to protect the safety of persons who might enter the water. [4] See: DER v. Warren Sand & Gravel Co., Inc., 62 D & C 2d 679 (Environmental Resources Board, 1973), aff'd, 20 Pa.Cmwlth. 186, 341 A.2d 556 (1975).
" " Prost v. Caldwell Store, Inc., 409 Pa. 421, 425, 187 A.2d 273, 275 (1963) quoting Evans v. Otis Elevator Co., 403 Pa. 13, 18, 168 A.2d 573, 575 (1961). Accord: Doyle v. South Pittsburgh Water Company, 414 Pa. 199, 207, 199 A.2d 875, 880 (1964); St. Clair v. B & L Paving Co., 270 Pa.Super. 277, 279, 411 A.2d 525, 526 (1979); Printed Terry Finishing Company, Inc. v. City of Lebanon, 247 Pa.Super. 277, 290, 372 A.2d 460, 466-467 (1977). So, Dravo had a duty, unconnected with its contract, to exercise reasonable care to avoid subjecting persons who were not parties to the contract to an unreasonable risk of harm.
" 'A normal human being is held to foresee those injuries which are the consequence of his acts of omission or commission which he, as a reasonable human being, should have foreseen.' " Krisovich v. John Booth, Inc., 181 Pa.Super. 5, 10, 121 A.2d 890, 892 (1956) quoting Bisson v. John B. Kelly, Inc., 314 Pa. 99, 110, 170 A. 139, 143 (1934). " '[W]hether a person charged with negligence or negligent acts or omissions should have foreseen the injuries resulting from those acts or omissions is for the jury, if there is any credible evidence from which a reasonable conclusion can be drawn in support of the claim of neglect of duty.' " Prost v. Caldwell Store, Inc., supra 409 Pa. at 427, 187 A.2d at 276 quoting Bisson v. John B. Kelly, Inc., supra 314 Pa. at 110, 170 A. at 143 (emphasis supplied). Accord: Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 138-139, 153 A.2d 477, 480 (1959); Lavely v. Wolota, supra 253 Pa.Super. at 202, 384 A.2d at 1302; Printed Terry Finishing Company, Inc. v. City of Lebanon, supra 247 Pa.Super. at 291, 372 A.2d at 467; McNett v. Briggs, 217 Pa.Super. 322, 327-328, 272 A.2d 202, 205 (1970).
The evidence in this case was sufficient to permit a finding that Dravo Corporation knew or should have known that the sand bar at the foot of Canton Street had been used widely by members of the public for various...
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