Metropolitan argues that there is no evidence to show that it was "in any way negligent" in conducting its survey. See Metropolitan's motion for summary judgment at 10. It then describes some of the methodology which Dr. Lanza employed in conducting the surveys and concludes with a review of his credentials. From this, and selected excerpts of the reports, Metropolitan asserts that it was not negligent in its conduct, did not increase the risks to plaintiff and, finally, that it did not undertake to perform RM's duty of providing a safe workplace for its employees.
The facts adduced by plaintiff tell a different story, however, one presenting a multitude of contested material facts which only a jury can properly determine. Plaintiff's proofs, assuming their veracity, cast doubt upon the bona fide nature of a number of Metropolitan's "empirical" studies. For example, plaintiff has produced correspondence between Dr. Lanza, an attorney for co-defendant Johns-Manville and RM which shows that some of Dr. Lanza's "empirical" studies were generated on behalf of the asbestos industry in an effort to minimize public perception regarding the dangers of asbestos exposure. True, this correspondence does not relate specifically to the preparation of the studies of RM's plant. However, it concerns studies by Dr. Lanza of the effects of asbestos exposure during the same time frame in which he studied RM's plant. Hence, a jury could infer that the "empirical" studies conducted by Dr. Lanza and now relied upon by Metropolitan, were, in fact, inaccurate and skewed by industry representatives in order to avoid the legal effect of asbestos exposure among workers. Therefore, plaintiff's assertion that he "relied" upon Metropolitan's study which indicated some, but perhaps not all, of the disorders incident to prolonged asbestos exposure brings Metropolitan within the scope of liability for breach of the duty imposed by § 324A(c). Accord, Toppi v. United States, 327 F. Supp. 1277, 1279 (E.D.Pa.1971) ("plaintiff may be able to establish that the government in fact undertook inspection, that such undertaking was negligently performed, and that plaintiff reasonably relied upon such inspection thereby causing his injuries").
Upon reviewing applicable case law the court in Blessing v. United States, 447 F. Supp. 1160, 1191 (E.D.Pa.1978) observed that § 324A liability is properly imposed for negligent inspection and the resulting harm where the defendant, inspector, "undertakes an inspection of the very instrumentality at issue". Where, as here, plaintiffs have alleged that Metropolitan "failed to exercise the standard of skill it was obliged to exercise by reason of (their) undertaking" and have adduced facts in support of that contention, summary judgment is inappropriate.
Metropolitan's argument that RM did not rely on its studies and hence did not forego the opportunities to sanitize its production facilities also misses the mark. Again, the letter to Dr. Lanza from Johns-Manville's attorney on December 10, 1934, states that he "shall endeavor to persuade them (RM) not to insist upon an examination" of the report then being prepared. Two weeks later he wrote to RM that he needed the galley proof returned immediately, "before you ha(ve) the opportunity to examine it". Hence, it appears that Metropolitan may have failed to fully disclose all of Dr. Lanza's findings to RM. Therefore, RM could have relied upon the incomplete studies provided to it; had it received all of Dr. Lanza's reports, it might have increased its safety procedures. The completeness and accuracy of the studies which RM received from Metropolitan and their degree of reliance thereon are all material issues of fact obstructing summary judgment.
Metropolitan also urges summary judgment on the ground that there is no causal link between its asserted negligence and plaintiff's injuries. It correctly asserts that plaintiff must show that Metropolitan's actions were a substantial factor in bringing about plaintiff's harm. Estate of Flickinger v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973). However, a jury could infer from the record facts that Metropolitan's acts and omissions were, indeed, a "substantial factor" in bringing about plaintiff's injuries. Finally, the issue of proximate cause is ordinarily determined by a jury. The fact that so much time has elapsed between Metropolitan's asserted negligent conduct and the filing of plaintiff's complaint does not break the causal chain where plaintiff complains of diseases, the severity of which is dependent upon the length and degree of exposure, and which have incubation periods of many years. If, in fact, Metropolitan was negligent in its conduct, but that negligence was superseded by RM's subsequent negligence, Metropolitan would still be liable for the harm to plaintiff up until the time that RM's negligence became a superseding cause. Consequently, if the jury finds that Metropolitan's negligence was a substantial factor, for only five years, in causing plaintiff's injuries, then Metropolitan will be liable for whatever illness plaintiff suffers as a result of the inhalation of asbestos fibers for these five years.
Metropolitan's motion also inveighs against plaintiff's attempt to hold it liable under theories of strict liability since it only provided a service to RM. It did not sell a product. Plaintiff, disagreeing with this characterization of the RM-Metropolitan transaction, argues that there was a "sale" sufficient to satisfy the requirements of § 402A. It was the purchase of "knowledge, expertise and dust surveys". Plaintiff's motion in opposition to Metropolitan's motion for summary judgment at 18. However, plaintiff's characterization of the transaction fails to satisfy the requirements of § 402A which admits of "no general judicial expansion ... to include persons who supply a service". Lemley v. J. & B. Tire Co., 426 F. Supp. 1378, 1379 (W.D.Pa.1977). In Lemley, plaintiff sought recovery against a tire company which had allegedly negligently repaired the brakes on plaintiff's car. The court held that in a "hybrid sales-service transaction" § 402A liability is "limited to defects in the product supplied and does not include non-negligent mistakes in the service". Id. Accord, Abdul-Warith v. Arthur G. McKee and Co., 488 F. Supp. 306, 310-11 n.3 (E.D.Pa.1980) (where an architect of engineer supplies a design or "merely supervises" strict liability is inappropriate). See also, Johnson v. William C. Ellis & Sons Iron Works, Inc., 604 F.2d 950, 954 (5th Cir. 1979). Even generously assuming that the case at bar involves a "hybrid" sales-service transaction, and we are not convinced that it does, the evidence adduced is insufficient to permit a jury to consider allegations based upon strict liability. We will, therefore, grant Metropolitan's motion as to plaintiff's strict liability claims.
We have carefully examined the remainder of Metropolitan's contentions in support of plaintiff's motion and find them lacking in merit. An appropriate order will issue.
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