Appeal from judgment of Court of Common Pleas of Washington County, May T., 1966, No. 350, in case of Donald Michael Lobozzo et ux. v. Adam Eidemiller, Inc.
Thomas L. Anderson, for appellant.
Sanford S. Finder, with him Michael E. Kusturiss, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Chief Justice Bell.
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,*fn1 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 Construction Co., 173 Pa. Superior Ct. 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. Superior Ct. at 526-27). See also Mazza v. Berlanti Construction Co., 206 Pa. Superior Ct. 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*fn2 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 bid 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,*fn3 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).*fn4
Valley Forge Gardens, Inc. v. 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 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 ...