Lobozzo v. Adam Eidemiller, Inc.

• Decision Date: 20 March 1970
• Citation: 263 A.2d 432,437 Pa. 360
• Parties: Donald Michael LOBOZZO and Ann S. Lobozzo, His Wife v. ADAM EIDEMILLER, INC., a Corporation, Appellant.
• Court: Pennsylvania Supreme Court

Page 432

263 A.2d 432

437 Pa. 360

Donald Michael LOBOZZO and Ann S. Lobozzo, His Wife v. ADAM EIDEMILLER, INC., a Corporation, Appellant.

Supreme Court of Pennsylvania.

March 20, 1970.

Thomas L. Anderson, Washington, for appellant

Sanford S. Finder, Washington, Michael E. Kusturiss, Canonsburg, for appellees.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

POMEROY, Justice.

Between November 30 and December 11, 1964, the defendant, Adam Eidemiller, Inc. (Eidemiller), a highway construction firm, detonated a considerable number of explosive charges to prepare the roadbed for a section of Interstate Highway No. 79, which it was building in the vicinity of Canonsburg, Pa. under contract with the Commonwealth of Pennsylvania. Donald Lobozzo and his wife, the plaintiffs (Lobozzo), owned and operated the Canon Food Locker, a combination cold storage plant and grocery store located near the site of the blasting. On several occasions during this period, Lobozzo felt his building tremble and observed numerous cracks appear in its walls. This action in trespass was brought by Lobozzo alleging that vibrations emanating from Eidemiller's blasting had damaged the building. A jury trial resulted in a verdict for Lobozzo in the sum of $25,000, upon which judgment was entered after denial of Eidemiller's post trial motions. This appeal followed.

The action was tried on the theory of strict liability for the damage if caused by blasting, and no proof of negligence on Eidemiller's part was offered. The first issue presented is whether this approach was correct in the circumstances of this case. While recognizing that in Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A.2d 817 (1949), we adopted the rule of liability without fault for blasting damage, set forth in Section 519 of the Restatement of Torts, ¹ Eidemiller contends that the rule of that case should not be applied to this one because its blasting was done in conjunction with a public rather than a private project. Specifically, he argues that the Section 521 exception to the Section 519 strict liability rule for 'activity carried on in pursuance of a public duty imposed on the actor as a public officer or employee', should be extended to apply to an independent contractor working on a public project.

The Superior Court rejected this same argument in Laventhol v. A. DiSandro Contracting Co., 173 Pa.Super. 522, 98 A.2d 422 (1953), a case involving blasting in connection with the laying of sewers for the City of Philadelphia. Judge (now Chief Judge) Wright, writing for the court, reasoned that, '(t)he 'public duty' imposed upon a public officer or employe differs from the duty voluntarily assumed by a successful bidder for a contract.' (173 Pa.Super. at 527, 98 A.2d at 424.) See also Mazza v. Berlanti Construction Co., 206 Pa.Super. 505, 509, 214 A.2d 257 (1965); cf. Baier et ux. v. Glen Alden Coal Company, 332 Pa. 561, 3 A.2d 349 (1939).

We believe this distinction is sound. Section 521 and comment A ² thereto appear to recognize that governmental bodies must, on occasion, engage in ultrahazardous activity for the public benefit and that, a public officer or employee has the duty of conducting such activity thrust upon him by virtue of his position. Because the governmental unit may be either immune from suit or immune from liability for harm caused by such activity, the full burden of absolute liability would fall squarely upon the individual public servant, absent the Section 521 exception. Yet, the individual public officer or employee can neither control the degree of hazard he will create nor dictate the compensation he will receive for the performance of his required duties.

The same cannot be said of an independent contractor. He may balance the risk of loss from damage caused against the cost of insulating himself from such loss, and regulate his contract did accordingly. We hold that Section 521 was not intended to apply to independent contractors of public bodies, and that the rule of liability without fault enunciated by Section 519 of the Restatement should be applied to damage caused by ultrahazardous activity (such as blasting) undertaken by an independent contractor on a public as well as a private project. This holding is in accord with the well reasoned decisions from a number of other jurisdictions, ³ and with the views of two eminent scholars in this field, Harper & James, The Law of Torts, Supplement to Vol. 2, at p. 13 (1968). ⁴

Valley Forge Gardens, Ins. v. James D. Morrissey, Inc., 385 Pa. 477, 123 A.2d 888 (1956), relied upon by Eidemiller, does not indicate a contrary result. There the Court held that a highway contractor, working under a contract with the Commonwealth, was not liable for damage caused to the plaintiff's ornamental ponds by erosion of fill placed by the contractor. In the course of so holding the Court observed that '(i)n every jurisdiction in this Country where the question has been passed upon * * *, it has been uniformly held that in the absence of negligence or wilfully tortious conduct on the part of an independent contractor, he is not liable for injury to another's property which is caused by the performance of his contract with a governmental instrumentality in accordance with its plans and specifications.'

The theory underlying the Valley Forge Gardens decision is that the Commonwealth has a privilege to have highways constructed, and that such privilege insulates a contractor who complies with the Commonwealth's plans and specifications from liability for damage caused by such construction, unless the contractor performs his work tortiously. The important point of distinction between that case and the present one, and the reason that the rule set forth there is not controlling here, is that the damage in the case at bar was caused by ultrahazardous activity whereas in Valley Forge Gardens it was not. Blasting, an ultrahazardous activity, is, of course, necessary in many construction projects, public as well as private. But if blasting, even though carefully performed, causes damage, it by that fact becomes 'tortious' and actionable, and one whose property is injured or destroyed may have recovery. Thus under our present holding the insulation rule of Valley Forge Gardens applies in the absence of negligence, willfully tortious conduct, or activities, such as blasting, for which liability without fault is imposed.

The second issue presented is whether the trial court erroneously instructed the jury concerning the use they were entitled to make of knowledge acquired at their view of the damaged premises. The judge instructed the jury: 'If you find that any witness stated falsely any material fact in the case you are at liberty to disregard the whole of his testimony if you want to. Whatever you decide of course must be based upon what you have found out in the Court Room and on your view of the premises. You are entitled to consider everything that you observed while on the view in your decision.' Eidemiller contends that under this instruction, to which we think defendant took adequate, if inartistic, exception, the jury was free to disregard all the testimony in the case and base their verdict solely on the view.

The cases in which this Court has considered the use the jury may make of information obtained at a view share two attributes: almost all of them are eminent domain cases ⁵ and none is recent. Neither of these factors, however, detracts either from the soundness of their reasoning or their applicability to this case for here, as in eminent domain cases, the information obtained by the jury concerned the physical aspects of the property allegedly damaged. In its argument that the instruction given was error, Eidemiller relies upon statements such as that made in Flower v. Baltimore & O. Railroad Co., 132 Pa. 524, 528, 19 A. 274 (1890): 'It was never intended that the view of the jury should be substituted for the evidence, and that they should make up their verdict from the view in disregard thereof. The object of the view is, as was correctly said by the learned judge, to enable them the better to understand the testimony; to weigh conflicting testimony; and, thus aided, to arrive at a sound and just conclusion.' See also Hoffman v. Bloomsbury & S. Railroad Co., 143 Pa. 503, 520, 22 A. 823 (1891); Roberts v. Philadelphia, 239 Pa. 339, 344, 86 A. 926 (1913).

On the other hand, the Court has recognized that '(a) view may sometimes be of the highest importance, where there is a conflict of testimony. It may enable the jurors to see on which side the truth lies; and if the witnesses on the one side or the other have testified in a state of facts which exists only in their imagination, as to the location of the property, the manner in which it is cut by the road, the character of the improvements, or any other physical fact bearing upon the case, They surely cannot be expected to ignore the evidence of their senses, and give weight to testimony which their view shows to be false. * * * The true rule in such cases is believed to be that the jury in estimating the damages shall consider the testimony as given by the witnesses, in connection with the facts as they appeared upon the view; and upon the whole case, as thus presented, ascertain (the damages) * * *.' Gorgas v. Philadelphia H. & P. Railroad Co., 144 Pa. 1, 13, 22 A. 715, 716 (1891) (Emphasis supplied.) See also Wadsworth v. Manufacturer's Water Co., 256 Pa. 106, 117--119, 110 A. 577 (1917); Avins v. Commonwealth, 379 Pa. 202, 205--206, 108 A.2d 788 (1954); Shano v. Fifth Ave. & High St. Bridge Co., 189 Pa. 245, 42 A. 128 (1899). In the case last cited the Court stated: 'The jurors had examined the property, and from what they saw and knew, as well as from the testimony of witnesses, they were to form their own judgment. The expert testimony was an aid only in enabling...