The opinion of the court was delivered by: HUYETT
Presently before me in this products liability suit is defendant National Loss Control Services Corporation's ("NATLCO's") motion for summary judgment. For the reasons set forth below this motion will be denied.
Plaintiff sued the manufacturer of the forging machine in question, the manufacturer of the foot switch in question, and the supplier of the foot switch under a strict liability theory premised upon Section 402A of the Restatement (Second) of Torts. Plaintiff also sued NATLCO under a negligence theory. He alleges that NATLCO undertook to perform safety inspections of the Phoenix plant, that it did not exercise reasonable care in the performance of those inspections, and that he suffered injuries as a result of that negligence.
It is uncontested that NATLCO did, in fact, enter into some form of contract with the parent corporation of Phoenix. It is also uncontested that pursuant to this contract, NATLCO conducted a number of inspections of the Phoenix plant and made recommendations concerning safety improvements. The parties dispute most of the other aspects of NATLCO's relationship to Phoenix.
The question presented in the present motion is whether plaintiff can proceed against NATLCO under Section 324A of the Restatement (Second) of Torts given the undisputed facts of this case. All parties apparently agree that Pennsylvania law should govern.
Under the Federal Rules of Civil Procedure, summary judgment is appropriate only where there exists no genuine issue of material fact and the movant is entitled to judgment as a matter of law. The burden is on the party seeking summary judgment to prove that no genuine issue of fact exists. For the purposes of considering such a motion, all questions of fact are resolved against the movant.
Plaintiff is relying on what is sometimes known as the "good samaritan rule" in his action against NATLCO. The foundation of the rule is that the defendant specifically has undertaken to perform the task that he or she is charged with having performed negligently. Patentas v. United States, 687 F.2d 707, 716 (3rd Cir.1982). Pennsylvania courts have recently adopted the statement of this rule contained in section 324A of the Restatement (Second) of Torts, Cantwell v. Allegheny County, Pa., 506 Pa. 35, 483 A.2d 1350 (1984), although it was clear that the rule was part of the law of the Commonwealth long before that. See Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961). Section 324A provides:
§ 324A. Liability to Third Person for Negligent Performance of Undertaking
One 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 ...