Hicks v. Metropolitan Edison Co.

• Decision Date: 06 September 1995
• Citation: 665 A.2d 529
• Parties: Terry HICKS and Cindy Hicks, his wife, Appellants, v. METROPOLITAN EDISON CO., a subsidiary of General Public Utilities; Commonwealth of Pennsylvania, Department of Transportation; Asplundh Tree Expert Co.; A.B. Chance Co.; General Electric Co.; Andrea Pierce.
• Court: Pennsylvania Commonwealth Court

Page 529

665 A.2d 529

Terry HICKS and Cindy Hicks, his wife, Appellants, v. METROPOLITAN EDISON CO., a subsidiary of General Public Utilities; Commonwealth of Pennsylvania, Department of Transportation; Asplundh Tree Expert Co.; A.B. Chance Co. General Electric Co.; Andrea Pierce.

Commonwealth Court of Pennsylvania.

Argued April 5, 1995.

Decided Sept. 6, 1995.

Edward J. Coyle, for appellants.

Susan F. Evans, for appellees.

Before COLINS, President Judge, and DOYLE, McGINLEY, PELLEGRINI, FRIEDMAN, KELLEY and NEWMAN, JJ.

DOYLE, Judge.

Terry and Cindy Hicks, husband and wife, appeal from an order of the Court of Common Pleas of Lebanon County which sustained the preliminary objections of Asplundh Tree Expert Company (Asplundh) and dismissed Count IV and Count V of the Hicks' second amended complaint.

The facts as alleged in the Hicks' complaint are as follows. On October 29, 1989, a vehicle driven by Andrea Pierce collided with a utility pole near the intersection of Schoolhouse Road, Ridge Road and Cedar Road in Conewago Township. As a result of the collision, the pole was sheared into two pieces and the top piece fell to the ground along with the electrical wires which it supported. Shortly thereafter, Terry Hicks arrived at the scene and exited his vehicle in order to provide assistance to the victims of the accident. While rendering assistance, Terry Hicks came into contact with an electrical wire or other objects through which electrical current was running and as a result suffered severe and permanent injuries.

On September 4, 1992, the Hicks filed a complaint against Metropolitan Edison Corporation (Met Ed), Andrea Pierce, Asplundh, and the Department of Transportation. ¹ In Count IV of their complaint, the Hicks alleged that Asplundh had entered into an agreement with Met Ed whereby Asplundh would examine and inspect utility poles, on behalf of Met Ed in the south central region of Pennsylvania, including the utility pole involved in the accident. The Hicks further alleged that Asplundh was negligent in carrying out its duty of inspection and examination and that the Hicks' injuries resulted therefrom. The Hicks subsequently filed an amended complaint and on March 10, 1993, filed a second amended complaint which included an allegation in Count V that Terry Hicks was a third party beneficiary of the agreement between Asplundh and Met Ed.

Asplundh filed preliminary objections to the second amended complaint which were sustained by the trial court. The trial court found that Asplundh owed no duty of care to the Hicks under the circumstances alleged and that Asplundh's alleged negligence was not a proximate cause of Terry Hicks' injuries. The trial court also found that the Hicks were neither expressly intended beneficiaries of the contract between Met Ed and Asplundh nor beneficiaries intended by the circumstances. Based on these findings, the trial court dismissed Counts IV and V of the Hicks' second amended complaint. The Hicks now appeal to this Court. ²

On appeal, the Hicks argue that the trial court erred in sustaining Asplundh's preliminary objections because (1) their complaint contains all of the elements necessary to plead a cause of action in negligence, and (2) the law does not require a contract to expressly provide that a party is an intended third party beneficiary to that contract.

Our scope of review of an order of a trial court sustaining preliminary objections in the nature of a demurrer is limited to a determination of whether there has been an error of law or an abuse of discretion. Doe v. Township of Robinson, 161 Pa.Commonwealth Ct. 604, 637 A.2d 764 (1994). When reviewing whether preliminary objections were properly sustained, we consider as true all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences therefrom. Hawks v. Livermore, 157 Pa.Commonwealth Ct. 243, 629 A.2d 270 (1993). We further recognize that preliminary objections should be sustained only in cases that are clear and free from doubt. Wurth v. City of Philadelphia, 136 Pa.Commonwealth Ct. 629, 584 A.2d 403 (1990).

Notwithstanding the strict standard which must be met for this Court to affirm a lower court's decision to sustain a party's preliminary objections, we believe that the Hicks have failed to allege sufficient facts in Counts IV and V of their complaint to support a cause of action against Asplundh. Therefore, for the reasons enumerated below, we affirm the judgment of the court of common pleas.

COUNT IV--Negligence

A. The Hicks Have Failed to Adequately Allege a Duty Owed to Them By Asplundh.

The basic elements of a cause of action founded on negligence are: (1) a duty, recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure to conform to that standard; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting to the interests of another. Rankin v. Southeastern Pennsylvania Transportation Authority, 146 Pa.Commonwealth Ct. 429, 606 A.2d 536 (1992).

The sole allegation of Asplundh's duty of care under its contractual agreement with Met Ed, and hence its duty of care to the Hicks, is contained in paragraphs 63 and 64 of the Hicks' second amended complaint which states the following:

63. As of October 29, 1989, the strength and integrity of UTILITY POLE was not adequate to enable said pole to be utilized to safely support wires used for the transmission of electrical current.

64. [The Hicks] have been informed, believe and, therefore, aver that ASPLUNDH did not instruct or recommend to Met-Ed that said UTILITY POLE be replaced and/or repaired prior to October 29, 1989.

The Hicks argue that Asplundh had a duty to protect Terry Hicks, a bystander to the automobile accident, who voluntarily entered the scene to aid Pierce. Whether a duty exists in any given situation depends upon the relationship existing between the parties at a particular time. Burman v. Golay and Company, Inc., 420 Pa.Superior Ct. 209, 616 A.2d 657 (1992), petition for allowance of appeal denied, 533 Pa. 648, 624 A.2d 108 (1993). Where the parties are strangers to each other, however, such a relationship may be inferred from the general duty imposed on all persons not to place others at risk of harm through their actions. Alumni Assoc., Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 369 Pa.Superior Ct. 596, 535 A.2d 1095 (1987), aff'd, 524 Pa. 356, 572 A.2d 1209 (1990).

However, the scope of this duty is limited; it is not the law of Pennsylvania that a party owes a duty of care to every individual with whom that party may randomly come into contact. Rather, to the extent that there is any duty at all, it is only a duty not to expose others to risks which are reasonably foreseeable. Braxton v. Department of Transportation, 160 Pa.Commonwealth Ct. 32, 634 A.2d 1150 (1993), petition for allowance of appeal denied, 539 Pa. 682, 652 A.2d 1326 (1994).

In Zilka v. Sanctis Construction, Inc., 409 Pa. 396, 186 A.2d 897 (1962), cert. denied, 374 U.S. 850, 83 S.Ct. 1915, 10 L.Ed.2d 1070 (1963), the plaintiff was standing on his property observing a bulldozer, operated by an employee of the defendant, engaged in highway construction work along the edge of his property. The bulldozer unexpectedly hit a small tree, causing a piece of the tree to fly through the air and strike the plaintiff who was standing thirty to thirty-five feet away. The Supreme Court held that the defendant's conduct was not negligent in respect to the plaintiff since "it could not have been foreseen that there was any likelihood of harm to [the plaintiff], i.e., he was not within the 'orbit of danger', from this operation of the bulldozer." Id. at 405, 186 A.2d at 901. While the defendant's behavior theoretically increased the risk of harm to the members of society at large, the law simply does not impose a duty to foresee each and every possible risk to each and every individual member of the public at large. See id.; Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289 (1951) (motorist owed no duty of care to injured pedestrian who, while standing behind a parked bus, was struck by body of deceased who was fatally injured by motorist while crossing highway).

Similarly, in Burman, the plaintiff was watching an apartment fire allegedly caused by the negligent electrical maintenance of the utility company. She was injured when she was struck with flying debris. The trial court granted summary judgment in favor of the utility, and the Superior Court affirmed. The Superior Court held that the utility owed no duty of care to the plaintiff and could not be found negligent in its relationship to a "voluntary spectator[ ] at an obviously dangerous scene." Id. at 214, 616 A.2d at 659.

Applying this reasoning to the present case, no reasonable person could conclude that Asplundh, by simply failing to report an alleged defect in a utility pole, should have foreseen an increased risk of harm to bystanders if a speeding car broke the pole in two and caused the electrical wires to fall to the ground. ³ To hold otherwise would effectively expand the concept of duty of care beyond acceptable limits.

B. The Hicks Have Failed to Allege that Asplundh's Failure to Inspect and Report the Defective Nature of the Pole was the Proximate Cause of Hicks' Injury.

Further, even if Asplundh owed some duty of care to Terry Hicks, its arguably negligent inspection of the pole was not the proximate cause of Hicks' injury; rather, the demolition of the pole by Pierce's car and Hicks' own actions were the cause of his injury.

The Supreme Court has adopted the definition of proximate cause set forth in the Restatement (Second) of Torts ⁴ § 431 (1965): ⁵The actor's negligent conduct is a legal cause of harm to another if

(a) his conduct is a substantial factor in bringing about the harm, and

(b) there is no rule of law relieving the...