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Contractor Owed No Duty to Warn Public of Emissions Exceedence

Siros_Steven_COLORBy Steven M. Siros

 

A Pennsylvania appellate court held that an environmental contractor hired to conduct air emission monitoring owned no duty to persons residing near an industrial facility to warn of excess beryllium emissions. In Reeser v. NGK North American, Inc., the plaintiff contracted chronic beryllium disease as a result of alleged exposure to beryllium emissions from a nearby industrial facility. The facility owners had retained an engineering firm to conduct stack testing at the plant. The results of that stack testing showed exceedences of beryllium from the facility. The plaintiff sued, among others, the engineering firm, on the basis that the engineering firm had breached a alleged duty to warm the public of the health risks posed by the excess emissions. The plaintiff argued that Section 324A of the Restatement (Second) of Torts imposed such a duty to warn on the engineering firm. The court rejected that argument, noting that in order for a duty to be imposed by Section 324A of the Restatement, the engineering firm needed to have undertaken a duty to protect the community. The court noted that there was no evidence that the engineering firm had undertaken such a duty nor was there any evidence that the testing had been conducted negligently. To hold otherwise, the court noted, would inhibit owners from hiring qualified consultants to investigate environmental conditions and would have been inconsistent with the purpose behind Restatement (Second) of Torts Section 324A. It should be noted that some states do impose an independent duty on environmental contractors to report certain conditions that are identified in the course of an environmental investigation so it is prudent to evaluate whether there are any state-specific reporting obligations as part of any environmental investigation.