decided: February 4, 1981.
THOMAS A. GRAINY, A MINOR, BY THOMAS F. GRAINY AND DOROTHY A. GRAINY, HIS PARENTS AND NATURAL GUARDIANS AND THOMAS F. GRAINY AND DOROTHY A. GRAINY, IN THEIR OWN RIGHTS, APPELLEES,
BRUCE A. CAMPBELL, AN INDIVIDUAL, TURNER DAIRY FARMS, INC., A CORPORATION, CHARLES G. TURNER, AN INDIVIDUAL, LYDIA C. TURNER, AN INDIVIDUAL, APPELLANTS, V. M. O'HERRON CO., A CORPORATION AND PEOPLES NATURAL GAS COMPANY, A CORPORATION, APPELLEES
No. 80-1-36, Appeal from the Opinion Entered September 6, 1979 of the Superior Court of Pennsylvania at Consolidated Appeals Nos. 714, 748, 745 April Term, 1978, reversing the judgment entered March 1, 1978 (as amended) of the Court of Common Pleas of Allegheny County, at No. 3883 October Term, 1973
James E. Coyne, Weis & Weis, Pittsburgh, for appellants.
Robert E. Wayman, Pittsburgh, for M. O'Herron Co.
Harry Zimmer, Pittsburgh, for Thomas Grainy, et al.
John R. Kenrick, Pittsburgh, for Peoples Natural Gas Co.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., filed a concurring opinion.
[ 493 Pa. Page 89]
OPINION OF THE COURT
This negligence action raises the question of whether an intervening negligent act of a second actor will discharge a first actor's liability for antecedent negligence.
[ 493 Pa. Page 90]
In 1971, appellee M. O'Herron Co. (contractor) was replacing a gas pipeline for appellee Peoples Natural Gas Co. (gas company) along Saltsburg Road in Plum Township, Allegheny County. An uncovered excavation, which was barricaded with metal horses and dirt, obstructed the entire berm on the north side of Satlsburg Road.
Appellee Thomas A. Grainy, age 12, was in a single file line of Boy Scouts hiking eastbound on the berm of Saltsburg Road. These Scouts encountered the excavation. At the same time a truck with a trailer driven by appellant Bruce A. Campbell (truck driver) and owned by appellant Turner Dairy Farms, Inc. (truck driver's employer) was approaching the excavation westbound on the same side of the highway. When the truck driver was about three hundred feet away, he observed the approaching Boy Scouts and the excavation, and moved his truck partially over the double yellow center line of the two-lane highway since there was no on-coming traffic. One of the Scouts, observing that the truck had moved to accommodate their passage, proceeded around the excavation on the paved roadway and Thomas Grainy followed. Although there was no on-coming traffic, the truck driver moved back into the westbound lane as he passed the boys. Thomas Grainy was struck and thrown into the excavation, suffering severe injuries. This lawsuit ensued.
In the trial court the jury returned a verdict in favor of Thomas Grainy against the truck driver, his employer, the contractor, and the gas company. All defendants filed motions for judgment n. o. v. but these were denied.
The Superior Court affirmed the judgment against the driver and his employer but reversed the judgment against the contractor and gas company holding that the truck driver's intervening negligence discharged the liability of the contractor and gas company as a matter of law. Grainy v. Campbell, 269 Pa. Super. 225, 409 A.2d 860 (1979). Petition for allowance of appeal was granted to resolve confusion in Pennsylvania case law as to when intervening negligence terminates liability for antecedent negligence.
[ 493 Pa. Page 91]
The Superior Court held that Kline v. Moyer, 325 Pa. 357, 191 A. 43 (1937) [hereinafter cited as Kline ] governed this case. In Kline the first actor left a broken down vehicle unattended on a two lane highway at dusk. The second actor approached the stranded car and attempted to pass in the opposite lane but was involved in a head-on collision with the plaintiff. The Kline Court granted a new trial in which the following test of liability was to be applied:
Where a second actor has become aware of the existence of a potential danger created by the negligence of an original tort-feasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause. Id., 325 Pa. at 364, 191 A. at 46.
Since the truck driver in this case was aware of the potential danger of the Scouts and the excavation (the driver moved the truck over the center line) and since the truck driver negligently struck Grainy while passing by, the Superior Court correctly held that under Kline the contractor and the gas company were relieved of liability for negligently obstructing the berm.
The Restatement (Second) of Torts, § 447 (1965) [hereinafter cited as § 447] also formulates a test of when intervening negligence will relieve antecedent negligence.*fn1 In § 447, the liability of the first actor continues whenever: (a) the first actor "should have realized" that the second actor
[ 493 Pa. Page 92]
"might so act"; (b) a reasonable man would not regard the second actor's action as "highly extraordinary"; or (c) the second actor's conduct is a "normal consequence of the situation created" by the first actor and "not extraordinarily negligent."
Section 447 of the Restatement (Second) of Torts has been adopted as Pennsylvania law. In Estate of Flickinger v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973) [hereinafter cited as Flickinger ] this Court stated that: "The controlling rule of law in Pennsylvania on the extent of liability of a negligent actor, i. e., the law of proximate causation, where that question is presented in the light of an intervening act of negligence, is contained in section 447 of the Restatement (Second) of Torts (1965): . . ." Id., 452 Pa. at 74, 305 A.2d at 43 (footnote omitted, emphasis in the original).*fn2
It is clear that if we apply § 447 the liability of the contractor and the gas company has not been relieved by the intervening negligent act of the truck driver. Under § 447, liability continues if either clause (a), (b), or (c) is applicable. In fact, in this case, all three are applicable.
Section 447(a): When the contractor and gas company blocked the berm there was a "realizable likelihood" that a pedestrian would be forced to use the roadway and be struck by a negligently driven passing vehicle. See Noon v. Knavel, 234 Pa. Super. 198, 339 A.2d 545 (1975) (allocatur denied) (While the exact circumstances of the accident were unusual,
[ 493 Pa. Page 93]
the danger itself was foreseeable when a phone booth was placed at a dangerous location near a highway.)
Section 447(b): While it is highly unfortunate that the driver struck Grainy while passing the excavation, it cannot be regarded as "highly extraordinary" that a passing vehicle would strike a pedestrian walking on the highway. See Sheel v. Tremblay, 226 Pa. Super. 45, 312 A.2d 45 (1973) (It was not extraordinary that car should veer slightly off a winding road and strike negligently located, unlit utility pole).
Section 447(c): The truck driver was not "extraordinarily negligent". It is not "altogether unusual" (Comment e § 447) that a passing vehicle should strike a pedestrian on the highway but merely a case of "occasional negligence, one of the incidents of human life" (Comment e § 447) See Flickinger, supra. (Where the first actor had piled dirt on the berm of a highway, blocking visibility near a driveway, it was not extraordinary that the second actor would blindly enter the highway from the driveway, striking plaintiff.)*fn3
The results achieved by applying Kline (first actor not liable) and § 447 (first actor still liable) are irreconcilable in this case.*fn4 In light of our unequivocal approval of § 447 in
[ 493 Pa. Page 94]
jury verdict, which imposed liability on all the defendants, is reinstated.*fn5
NIX, Justice, concurring.
In this case the majority correctly states the question to be whether an intervening negligent act of a second actor will discharge a first actor's liability for antecedent negligence. The basic question is whether the first tortfeasor's action was in fact a legal cause of the resultant injury. If in fact it was, as is the case here, the fact that a second actor may also have contributed to the injury does not relieve the initial tortfeasor of responsibility.
In determining whether an act of negligence is a legal cause, we have stated the test to be whether it is a substantial factor in bringing about this injury. Ross v. Vereb, 481 Pa. 446, 392 A.2d 1376 (1978); Miller v. Checker Yellow Cab Co., 465 Pa. 82, 348 A.2d 128 (1975); Estate of Flickinger v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973). Under these circumstances, this Court has stated that the Restatement (Second) of Torts, § 447 (1965) provides the criteria to be employed in ascertaining whether the actor's negligent conduct is a substantial factor. Miller v. Checker Yellow Cab Co., supra.
I agree with the majority that applying § 447 to the instant facts requires a conclusion that the appellees, M. O'Herron Co. and Peoples Natural Gas Co. can also be held accountable for the injuries sustained.
It is for that reason that I join in the mandate of the majority opinion.