Construction Risk

Engineer Did not have Duty to Report to the Public the Environmental Findings it Produced for its Client

Where engineering firm was retained by the owner of a beryllium plant to perform “stack testing”, it found that beryllium emissions significantly exceeded allowable limits of the EPA, and the engineer so advised its client.  It did not report the findings to any government agency or to the community.  A woman in the community became ill with chronic beryllium disease and sued the engineer on the theory that it had a duty to inform the public of its findings.  Summary judgment was granted for the engineer and affirmed on appeal.  The court held that to have a duty to the public under section 324 of the Restatement of Torts, or otherwise, the engineer would have had to have expressly undertaken a duty to protect the public and performed it negligently, and in this case the engineer undertook no such duty but instead undertook the duty to test the emissions and report correctly the results to the owner of the plant.  It undertook no responsibility for the maintenance or safe design of the facility.

This decision sets forth an excellent review of case law, explaining the very limited duty of an engineer or contractor to the public under section 324A of the Restatement of Torts which provides as follows:

“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 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.”

As explained by the court, quoting case precedent, the scope of the rule “is measured by the scope of the defendant’s undertaking.  Even if a particular injury is foreseeable … a defendant must still have a specific duty to prevent the injury.”   And, says the court, quoting from yet another decision, “This ‘undertaking’ can be established by contract or by affirmatively assuming responsibility for the safety of third persons … Likewise, the scope of the contract or undertaking both ‘defines and limits’ the defendant’s duty.”

In the final clincher to the courts decision, the court concluded that to allow a plaintiff to bring an action like this one would be contrary to the public interest since this would inhibit owners from hiring consultants and learning whether a dangerous condition exists.  In the words of the court:

“The result sought by Appellant would require that an independent consultant, hired to conduct testing and report the results to an owner of a facility, must report the results to the public if there is a need for remedial relief.  Such a rule would inhibit owners of such a facility from hiring qualified, independent consultants to learn whether a dangerous condition exists.  Thus, it would impede discovery and corrective action.  Section 324A [Restatement of Torts] does not impose such a duty.”

Sharon Reeser v. NGK North American, Inc., 2011 PA Super 17 (Jan 2011)


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