Kalodner, Ganey and Van Dusen, Circuit Judges.
The plaintiff, John R. Evans, was injured during the course of his employment while attempting to dismantle a cardboard box cutting machine. He instituted this diversity action against the defendant, Liberty Mutual Insurance Company ("Liberty") his employer's workmen's compensation insurance carrier, alleging that Liberty's negligence in failing to "adequately inspect" the cutting machine and to warn plaintiff of its alleged unsafe condition caused his injury.
The action was tried to a jury. After the close of the evidence, Liberty moved for a directed verdict in its favor. The motion was granted and the jury discharged.
On this appeal plaintiff contends that (1) an injured employee may sue his employer's workmen's compensation carrier for injuries caused by the carrier's alleged negligence in failing to properly conduct its inspection of its insured's premises, under our decision in Mays v. Liberty Mutual Insurance Company, 323 F.2d 174 (3 Cir. 1963); and (2) sufficient evidence was presented by plaintiff to warrant submission of his case to the jury.
In reply, Liberty contends (1) this Court should reconsider and overrule our holding in Mays in the light of a later Pennsylvania trial court holding*fn1 that a workmen's compensation insurance carrier shares an employer's immunity from common law liability; and (2) plaintiff's evidence failed to establish a cause of action under either Section 323 or Section 324A of the Restatement of Torts, 2d.
We do not reach Liberty's first contention, because it is unnecessary to do so since we subscribe to its second contention.
Viewed in "a light most favorable to the plaintiff",*fn2 his evidence establishes the following facts:
On August 18, 1964, plaintiff was assigned the task of dismantling a cardboard box cutting machine. A wrench he was using slipped, causing his hand to strike against one of the machine's cutting blades with resulting serious injury. The machine was not equipped with a protective guard and the cutting blades were exposed. Liberty, prior to the accident, had made four "safety" inspections of plaintiff's employer's plant and made specific "safety" recommendations as a result of these inspections. It had not, however, made an inspection of the particular machine involved in this accident, nor had it made any recommendations with respect to it.
The purpose of Liberty's inspections was threefold: (1) to advise and counsel those whom it insured "on programs which they should adopt to reduce the cost and frequency of accidents"; (2) to provide a method of "gathering underwriting information"; and (3) "to help the sales department in the solicitation of new business and in securing" business already enjoyed. Liberty had neither power nor authority to compel an insured to act upon any of its safety recommendations and performed only an advisory function in making them. In the event an insured failed to comply with a recommendation which it deemed critical, Liberty only could pursue the alternative of discontinuing its coverage. Each of its insured employers "is responsible for its own safety record, or safety program".
There was no evidence that plaintiff's employer had ever followed Liberty's safety recommendations. Further, there was no evidence that Liberty was under a legal duty or contractual obligation to inspect the plant of plaintiff's employer.
The crux of plaintiff's contention here is that while Liberty was not under a legal duty or contractual obligation to inspect its insured plant, it "gratuitously" undertook to make such inspections, and that being so, it was liable to plaintiff for his damages under Section 323 of the Restatement of Torts, 2d, inasmuch as its failure to inspect the ...