Source: Lawyers USA, February 4, 2011
Posted on: http://envfpn.advisen.com
A toxic tort plaintiff could not sue an engineering firm for failing to make a public disclosure of beryllium contamination at a chemical plant near her home, a Pennsylvania appellate court has ruled in affirming a summary judgment.
The plaintiff lived near a beryllium plant for over fifty years. She alleged that she developed chronic beryllium disease as a result of exposure to beryllium particulate emitted from the plant.
In addition to suing the plant’s owner, the plaintiff sued an engineering firm that was hired by the owner to conduct emissions tests in 1971 and 1982.
Both tests showed that the beryllium emissions at the plant significantly exceeded the limits set by the U.S. Environmental Protection Agency. The engineering firm informed the plant’s owner of the test results, but did not report the findings to any government agency or to the members of the surrounding community.
The court concluded that the engineering firm was not liable for the plaintiff’s injuries.
In particular, the court decided that the engineering firm had no duty to make a public disclosure of the test results under [section]324A of the Restatement (Second) of Torts. The provision generally imposes liability when a party injures a third person due to the negligent performance of an “undertaking,”
The court explained that the engineering firm “undertook no duty with respect to performing remedial action to enhance safety. Rather, [the firm] undertook the duty to test the emissions and report correctly the results to the owner of the … plant; it did not undertake responsibility for the maintenance or safe design of the facility.”
Pennsylvania Superior Court. Reeser v. NGK North American, No. A23044. Jan. 24, 2011. Lawyers USA No. 993-2635.