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RUDDY v. UNITED STATES FID. & GUAR. CO.

June 25, 1968

Joseph RUDDY, Plaintiff,
v.
The UNITED STATES FIDELITY AND GUARANTY COMPANY and the Hartford Steam Boiler Inspection and Insurance Company, Defendants



The opinion of the court was delivered by: SHERIDAN

 SHERIDAN, Chief Judge.

 This negligence action was tried in part before a jury. The remaining issues are now before the court for decision.

 Plaintiff, Joseph Ruddy, was an employee of H. N. Gardner Company, a heating and plumbing contractor engaged to perform work in the boiler room of the Scranton State Hospital, Scranton, Pennsylvania. Defendant, The Hartford Steam Boiler Inspection and Insurance Company, *fn1" was the insurer of certain boilers and vessels in the boiler room under an insurance policy issued to the State.

 On July 31, 1964, plaintiff was working for Gardner in the boiler room of the hospital. A section of pipe leading from a coil water heater at its connection with a "T" bushing burst and scalding hot water and steam splashed over him causing first, second and third degree burns of the body. The part which burst consisted of the insertion of a brass pipe into an iron fitting which over the years produced an electrolysis thereby causing a weakened condition.

 The parties agreed to have certain fact issues submitted to the jury and to have questions of law concerning the interpretation of the insurance contract and duty to inspect, together with any unresolved factual issues, decided by the court. In answer to interrogatories, the jury found there was a defect in the pipe, that a reasonable inspection during each of the years 1962, 1963 and 1964 would have disclosed it, and fixed plaintiff's damages at $15,000.

 Jurisdiction is based on diversity of citizenship under 28 U.S.C.A. § 1332. The substantive law of Pennsylvania controls.

 Plaintiff's main contention is that Hartford undertook the State's duty to inspect the boilers both as required by statute and regulations issued thereunder, and under the common law, and that its negligent performance of that duty rendered it liable.

 Mr. Robert Jones was employed by Hartford to inspect property which it insured, including certain boilers and vessels at Scranton State Hospital. Jones and other employees of Hartford worked somewhat in a dual capacity in that they were commissioned by the State to act as State inspectors. *fn2" Therefore, when conducting an inspection for Hartford or required by the insurance contract, an employee of Hartford also functioned as a State inspector to see that the boiler system conformed to statutory and regulatory requirements. In September 1962, Jones inspected externally three coil water heaters, described as unfired pressure vessels, in the boiler room of the hospital. There was no inspection of these heaters in 1963 or 1964. There was no inspection at any time of the pipes or bushings leading from the water heaters. The implementing regulations in effect in 1964 and prior years required inspection of the water heaters only under certain pressure and heat requirements *fn3" which did not exist in the water heaters in the boiler room of the hospital. The regulations did not require inspection of the piping. The violation of a state statute or governmental regulations made pursuant thereto constitutes negligence which gives rise to liability if it is the proximate cause of the accident. Cf. Quinones v. Township of Upper Moreland, 3 Cir. 1961, 293 F.2d 237; Shafer v. Mountain States Tel. & Tel. Co., 9 Cir. 1964, 335 F.2d 932. Here, since neither the statute nor the regulations required an inspection, it follows that the failure to inspect cannot give rise to liability.

 Plaintiff was on the hospital premises as an employee of Gardner, an independent contractor and business invitee. Plaintiff argues that a possessor of land is liable to a business invitee and its employees for negligent breach of the duty described in § 343 of Restatement 2d, Torts; *fn4" and that Hartford, having assumed that duty, and negligently performed it, is liable under the principle that one who undertakes a duty owed by another must not be negligent in the performance of that duty. Section 324 A(b) of Restatement 2d, Torts provides:

 
"§ 324 A. Liability to Third Person for Negligent Performance of Undertaking
 
"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
 
* * *
 
"(b) he has undertaken to perform a duty owed by the other to the ...

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