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February 3, 1982

Eugene R. KOHR and Elaine M. Kohr, his wife, et al.

The opinion of the court was delivered by: TROUTMAN


Defendant, Metropolitan Life Insurance Company (Metropolitan) moves for summary judgment pursuant to Fed.R.Civ.P. 56(b) and asserts that a series of gratuitous inspections performed a half century ago of co-defendant Raybestos Manhattan's (RM) asbestos plant cannot form the predicate for imposition of liability to plaintiffs, all employees of RM, who charge that the inspections were negligently performed and otherwise form the basis of liability. We need not detail all the allegations of all of the parties in this case; rather, we shall concentrate only on those raised by Metropolitan's motion. This Court's prior opinions set forth a more complete factual and legal context within which the instant motion arises. See Kohr v. Raybestos-Manhattan, Inc., 522 F. Supp. 1070 (E.D.Pa.1981) (panel opinion); Kohr v. Raybestos-Manhattan, Inc., 505 F. Supp. 159 (E.D.Pa.1981); Kohr v. Johns-Manville Corp., 87 F.R.D. 750 (E.D.Pa.1980).

 Motions pursuant to Fed.R.Civ.P. 56, described as "drastic weapon(s)", Wire Mesh Products, Inc. v. Wire Belting Association, 520 F. Supp. 1004, 1005 (E.D.Pa.1981), are aimed at cutting off a litigant's right to trial by jury; hence, they are properly granted only where there is no genuine issue of any material fact and the movant is accordingly entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). A "material fact" is one which affects the outcome of the litigation. Goodman v. Mead, Johnson & Co., 534 F.2d 566 (3d Cir. 1976). The stringent standard which courts apply to Rule 56 motions includes the requirement that documents, filed in support of the motion, seeking to establish material facts as to which there is no genuine issue, must be of such a quality as to be admissible at trial. First National Bank Co. v. Insurance Company of North America, 606 F.2d 760, 766 (7th Cir. 1976); Sims v. Mack Truck Corp., 488 F. Supp. 592, 602 (E.D.Pa.1980).

 In the case at bar, plaintiff resists Metropolitan's motion on a number of grounds, one of which is the suggestion that the exhibits filed by Metropolitan in support of its motion are probably not admissible at trial. Hence, plaintiff argues, Metropolitan cannot meet its burden of foreclosing the existence of material facts and the motion must be denied. The exhibits at issue purport to be studies conducted by Metropolitan of the dangers associated with inhalation of asbestos fibers in the work place. To conduct these studies, Metropolitan formed the Industrial Health Service (IHS), headed by Dr. Lanza, the members of which visited RM's plant in 1930, 1935, 1938 and 1939. At the conclusion of each visit, the IHS issued a report of its inspection and, on occasion, apparently suggested to RM's management that they take additional steps to minimize worker exposure to asbestos dust. Metropolitan asserts that plaintiff's accusation that it failed to exercise the appropriate standard of care in its inspections of the plant fails because the studies themselves evidence the fact that they were competently and gratuitously conducted. The problem with this argument is that the admissibility of the reports is contested, and one judge in this district has apparently ruled that they are, in fact, inadmissible. Since the admissibility of these documents is contested, and it appears, without the benefit of full briefs by counsel on this point, that some of the documents relied upon to foreclose material facts may be inadmissible, we deny defendant's motion.

 We do not, however, end our analysis there. Assuming for present purposes, but not deciding, the veracity and admissibility of the reports submitted by Metropolitan and correspondence relating to the preparation of various studies by Dr. Lanza submitted by plaintiff, we nevertheless deny the motion.

 Metropolitan asserts, inter alia, that the studies conducted of the RM plant were done gratuitously, presumably with an eye toward generating empirical data on asbestos-related health disorders. Since there was no contract requiring Metropolitan to do the study, Metropolitan asserts that plaintiff cannot claim any breach thereof under a third-party beneficiary theory. Hence, whether liability may be properly imposed requires reference to ยง 324A of the Restatement (Second) of Torts, recognized by federal courts as the law of Pennsylvania in Evans v. Liberty Mutual Insurance Company, 398 F.2d 665, 667 (3d Cir. 1968). It provides that

(o)ne 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
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

 Comment b further provides in relevant part that:

This section applies to any undertaking to render services to another, where the actor's negligent conduct in the manner of performance of his undertaking ... results in physical harm to the third person .... It applies to ... undertakings ... which are gratuitous.

 In order to defeat Metropolitan's motion, plaintiff must adduce facts tending to show that Metropolitan, recognizing the study as necessary to protect RM workers, produced it with a lack of reasonable care in drawing its conclusions, thereby increasing risk of harm to plaintiff. If plaintiff can make that showing, the fact that the study was purportedly gratuitous is of no moment.

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