Lobozzo v. Adam Eidemiller, Inc.

*370 Dissenting Opinion by

Mb. Chief Justice Bell:

The Majority of this Court sustains a verdict for the plaintiffs for damages resulting from blasting by an independent contractor, who was working for the Government under and as required by the plans and specifications of the Commonwealth. The Court reached this result despite the fact (we repeat) that (1) the blasting was done pursuant to the Commonwealth’s contract and specifications; and (2) without any proof that the independent contractor was in any way negligent or at any time departed from the highest degree of care; and (3) in spite of the clear and controlling language to the contrary in Valley Forge Gardens, Inc., hereinafter quoted.

It is the general rule that with the exception of the Government or a Governmental Agency, one who carries on an ultrahazardous activity, such as blasting, has an absolute liability for damages resulting from that ultrahazardous activity. See Federoff et ux. v. Harrison Construction Company, 362 Pa. 181 , 66 A. 2d 817 , and Section 519 of the Restatement of Torts. This general rule applies when the contractor whose blasting operation caused the damage was employed by a private party to perform a contract which necessitated blasting. However, there is also a well-recognized exception, namely, that neither the Government nor a Governmental Agency, nor a contractor performing work for the Government or for a Governmental Agency in accordance with its plans and specifications, is liable for damages caused by his ultrahazardous activity in the' absence of negligence or a willful tortious action on his part. There is no liability on the part of-the Government because of the principle of Governmental or Sovereign immunity, and this doctrine has been wisely extended to cover a contractor who performs work for the Government under a contract according to plans and specifications mandated by the *371 Government or its Agency. Valley Forge Gardens, Inc. v. James D. Morrissey, Inc., 385 Pa. 477 , 123 A. 2d 888 ; Section 521 of the Restatement of Torts.

In Valley Forge Gardens, Inc., the Court said (pages 481-482): “In every jurisdiction in this Country where the question has been passed upon (and that includes the Supreme Court of the United Statés, other Federal courts and courts of approximately half of the States), it has been uniformly held that in the absence of negligence or wilfully tortious conduct * on the part of an independent contractor, he is not liable for injury to another’s property which is: caused by the performance of his contract with a governmental instrumentality in accordance with its plans and specifications. There has not been cited to us, nor has our independent research disclosed, a single case holding to the contrary.” (Footnotes excluded.) This language and this test are in practical effect repudiated and annihilated by the Majority.

Probably the persuasive or controlling reason for extending ■ this immunity to independent contractors employed by the Government is that if it were not so extended, bidding on such jobs would be made more difficult and complicated and far more expensive than it already is. This Court pertinently said in Valley Forge Gardens, Inc., 385 Pa., supra (page 484) : “The rule could not be otherwise. As recognized by the Supreme Court of Washington in Muskatell v. Queen City Construction Co., 3 Wash. 2d 200 , 100 P. 2d 380, 381 , if the rule were otherwise, ‘the bidding on contracts with a [governmental instrumentality] would be somewhat hazardous, because the contractor could never know what the amount of damages which he might have to pay to abutting property would be.’ Also, as stated by the Supreme Court of Appeals of Virginia in Tide *372 water Construction Corp. v. Manly, 194 Va. 836 , 75 S.E. 2d 500, 502 ,—‘The contractor’s bid is based upon the theory that the public agency has a legal right to submit its plans and specifications for the work to be performed, and that if he performs the work in accordance with the plans and specifications he will incur no liability in the absence of negligence.’ ”

It is undisputed in this case that the damage suffered by plaintiffs was not caused by any negligence or intentional or willful wrongdoing on the part of the defendant, and their recovery is predicated solely upon the doctrine of absolute liability without fault for all damages resulting from an ultrahazardous activity.

This is made clear by the Majority’s Opinion, which states that the privilege and duty of the Commonwealth to have highways constructed “insulates a contractor who complies with the Commonwealth’s plans and specifications from liability for damage caused by such construction, unless the contractor performs his work tortiously. . . . Blasting, an ultrahazardous activity, is, of course, necessaiy in many construction projects, public as well as private. But if blasting, even though carefully performed, causes damage, it by that fact becomes ‘tortious’ and actionable, and one whose property is injured or destroyed may have recovery. Thus under our present holding the insulation rule of Talley Forge Gardens applies in the absence of negligence, willfully tortious conduct, or activities, such as blasting, for which liability without fault is imposed.” In other words, the Court holds that blasting, while it may be wise and often necessary in many Governmental construction projects, is nevertheless conduct which becomes tortious, not if negligently performed, but merely and solely if damage is caused thereby. This is obviously and clearly an erroneous, unwarranted interpretation of the test and the meaning of tortiousness, and, no matter how disguised, or how camouflaged the *373 attempted distinction, substitutes “absolute liability without fault” for tortiousness—a self-contradictory non sequitur.

Since the Majority admit that no tortious or negligent blasting was proved, but merely damage without fault, I dissent. I do not find it necessary to discuss the other points raised.

Italics throughout, ours, unless otherwise noted.