R.W. and C.W., Individually and as the Parents and Natural Guardians of L.W., Appellants v. Scott MANZEK, Personally and in his Capacity as the Owner of 84 Services, 84 Services, Cookbook Publishers, Inc. and Giftco, Inc., Appellees.
888 A.2d 740
Supreme Court of Pennsylvania.
Argued March 7, 2005. Decided Dec. 28, 2005.
John Vincent DeMarco, Pittsburgh, for Cookbook Publishers, Inc.
David Benson White, Pittsburgh, for Giftco, Inc.
Thomas Paul Birris, Pittsburgh, for 84 Services.
OPINION
Justice BAER.
In September, 1999, L.W., the ten-year-old daughter of R.W. and C.W. (Parents) was brutally raped and beaten by Timothy S. Fleming while attempting to sell him candy as part of a school fundraiser. Parents first brought an action (the federal case) in federal district court (the district court) against the Punxsutawney Area School District and its superintendent (the School District defendants) seeking liability under
As this Court sits in review of the trial court‘s grant of the Fundraising Entities’ preliminary objections in the nature of a demurrer, we derive the salient facts solely from the allegations in Parents’ complaint. We accept as true all material facts as set forth in the complaint, as well as all inferences reasonably deducible therefrom. See Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270, 272 (2005); Estate of Witthoeft v. Kiskaddon, 557 Pa. 340, 733 A.2d 623, 624 n. 1 (1999).
L.W. was determined to win a green, inflatable chair, which required at least fifty sales. Parents instructed her not to enter any stranger‘s house in the course of fundraising. On September 18, 1999, L.W. needed only four more sales to
On the way to her friend‘s home, L.W. noticed a man, Fleming, mowing the yard of a nearby house and spontaneously decided to stop at this house and attempt to make a sale. L.W. approached Fleming and, consistent with the instructions given by Frank Manzek, introduced herself and asked him whether he would like to buy some candy for a school fundraiser. In response, Fleming indicated that his mother would be home shortly and asked to look through the brochures. He invited L.W. into his house, where she sat on a chair while he looked at the brochures. When L.W. asked if she could use the bathroom, Fleming showed her where it was. Shortly thereafter, while L.W. was in the bathroom, Fleming entered and proceeded violently to assault L.W. physically and sexually.4
Parents filed the federal case in district court asserting claims against the School District defendants under
As earlier stated, the first element of the state-created danger action required that the harm befalling L.W. as the victim was “foreseeable and fairly direct.” To support their assertion that the injuries suffered by L.W. were foreseeable by the School District defendants and the fairly direct result
After considering the four elements necessary for a state-created danger cause of action to Parents’ claim against the School District defendants, the district court found that Parents had not set forth a claim under
a reasonable trier of fact could not find that the [School District defendants] placed [L.W.] in danger by merely allowing a fundraiser to take place in her school. Rather, the catalysts for [L.W.‘s] injuries were her mother‘s unfore-
seeable act of permitting [L.W.] to walk a mile alone to a friend‘s house, and [L.W.‘s] unforeseeable act of walking down a dirt road, talking to a stranger and entering a stranger‘s house, despite the apparent warnings of her parents not to approach strangers to sell fundraising products. Simply put, the tragic harm that [L.W.] sustained as a result of Fleming‘s assault is too attenuated from the actions of the [School District defendants] to support liability under the state-created danger theory.
R.W. and C.W. v. Punxsutawney Area School District et al, Civil Action No. 00-861, at 15 (W.D.Pa., February 28, 2001), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902 (3d Cir.1997) (finding that the defendant school district and day-care operator, which leased a classroom from the district, did not use their authority to create an opportunity for harm by unlocking a back entrance to the school in order to admit contractors, where a third party entered the building and murdered a teacher).
Regarding the second element, whether the School District defendants acted with a willful disregard of or deliberate indifference to L.W.‘s safety, the district court concluded that the School District defendants could not have been aware of the danger posed by Fleming to L.W., nor could they have foreseen it. Similarly, regarding the fourth element, whether the School District defendants used their authority to create an opportunity that otherwise would not have existed for Fleming‘s crime to occur, the district court found that the School District defendants did not place L.W. in a foreseeably dangerous position.
Rather, the district court found that L.W.‘s harm came about solely through the acts of Fleming, without the level of intermingling of state conduct with private violence that creates liability under the state-created danger theory. See Mark, 51 F.3d at 1152 (finding that the cases in which the state-created danger theory was applied were based on discrete, grossly reckless acts committed by state actors in their peculiar positions, that rendered a discrete plaintiff vulnerable to foreseeable injury); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989) (holding that a genuine issue of material fact existed as to whether a state trooper, who arrested the driver of a car, impounded the car, and left the female passenger stranded alone in a high-crime neighborhood at 2:30 a.m., where she was subsequently raped, acted with deliberate indifference to the plaintiff‘s interest in personal security under the Fourteenth Amendment); Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir.1989), cert. denied, 494 U.S. 1066 (1990) (finding that the state affirmatively created a dangerous situation when it allowed a prisoner with a history of violence to participate in a work-release program at a town hall where he had access to axes and knives and was supervised by one unarmed civilian, where the prisoner abducted the town clerk at knife point and held her hostage for three days); Morse, 132 F.3d at 915.
Accordingly, the district court granted the School District defendants’ motion to dismiss the
Parents then “shifted gears,” filing a state negligence claim against the Fundraising Entities, as opposed to the School District defendants, in the Court of Common Pleas (trial court) premising the assertion of Fundraising Entities’ liability upon the contention that they encouraged and instructed L.W. to solicit strangers to purchase fundraising products (hereafter, the state negligence action).10
- a duty or obligation recognized by the law requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks;
- defendant‘s failure to conform to the standard required;
- a causal connection between the conduct and the resulting injury;
- actual loss or damage resulting to the plaintiff.
Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003); Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218 (2002); Morena v. S. Hills Health System, 501 Pa. 634, 462 A.2d 680, 684 n. 5 (1983).
The initial element in any negligence cause of action is the first: that the defendant owes a duty of care to the plaintiff. See Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1168 (2000); see also Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 890 (1994) (“Any action in negligence is premised on the existence of a duty owed by one party to another“). The existence of a duty is a question of law for the court to decide. See Emerich v. Phila. Center for Human Dev., Inc., 554 Pa. 209, 720 A.2d 1032, 1034 (1998); Huddleston v. Infertility Center of Am., Inc., 700 A.2d 453, 457 (Pa.Super.1997). In negligence cases, a duty consists of one party‘s obligation to conform to a particular standard of care for the protection of another. See Atcovitz, 812 A.2d at 1222. This concept is rooted in public policy. See Bilt-Rite Contractors Inc., 866 A.2d at 280. In Althaus, we summarized the traditional considerations of public policy involved in any assessment of the existence of a duty of care as follows:
In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than “the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection” from the harm suffered.... To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times. The late Dean
Prosser expressed this view as follows: “These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, ‘always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.‘”
Althaus, 756 A.2d at 1168-69 (quoting William L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 14-15 (1953)).
In deciding whether to impose a duty, we have adopted a five-factor test, focusing upon:
- the relationship between the parties;
- the utility of the defendant‘s conduct;
- the nature and foreseeability of the risk in question;
- the consequences of imposing the duty; and
- the overall public interest in the proposed solution.
See Bilt-Rite Contractors, Inc., 866 A.2d at 281; Atcovitz, 571 Pa. 580, 812 A.2d 1218 (declining to impose a duty upon a tennis club to maintain a defibrillator on its premises, principally on the ground that the legislature has carefully regulated the use of such devices without imposing a duty on business operators to maintain such equipment); Althaus, 756 A.2d at 1169 (listing cases).
Before the trial court, Parents and Fundraising Entities focused on the first and third factors in the five-factor test.
Specifically, in support of their assertion that the Fundraising Entities owed L.W. a duty to warn of the dangers inherent in fundraising, Parents argued that the requisite relationship existed premised on the fact that L.W. was recruited for the fundraising effort from which the Fundraising Entities directly benefited. Further, Parents argued that the harm that befell L.W. while she was participating in the fundraiser fell within a general, broad class of risks which the Fundraising Entities’ fundraising activities foreseeably created. In response, the Fundraising Entities argued that they had no special relationship with L.W. and, additionally, that Fleming‘s assault was not a risk reasonably foreseeable in the fundraising activity at issue.
The state trial court initially disagreed with both of the Fundraising Entities’ arguments, finding that due to the students’ ages, and because the Fundraising Entities encouraged them to talk to strangers and even taught them several ways to do so, the Fundraising Entities owed a duty to warn L.W. about the dangers of selling goods to strangers. Additionally, the state trial court found that Fleming‘s attack was a foreseeable consequence of encouraging children to sell goods to strangers. Therefore, on January 15, 2002, the trial court rejected this aspect of the Fundraising Entities’ argument and found as a matter of law that they owed a duty to L.W. Further, the court specifically found that Giftco and Cookbook were not too far removed to be liable in this case because they furnished fundraising materials to Manzek and 84 Services that contained no written warning about the dangers of selling
The Fundraising Entities then filed a motion for reconsideration with the trial court, citing the analysis of the district court in the federal case against the School District defendants. The Fundraising Entities argued that if the School District defendants could not have foreseen the danger posed to L.W., the same was true for them. Upon review, the state trial court agreed, and found the foreseeability analysis of the district court (pertaining to the federal state-created danger action against the School District defendants) “logical and persuasive,” and applicable to the question of foreseeability in the state negligence action against the Fundraising Entities. Therefore, despite the contrary finding of the state trial court‘s prior assessment, upon reconsideration, it opined that “without foreseeability, [Parents] have not stated a valid cause of action against [the Fundraising Entities].” Accordingly, on July 30, 2002, the trial court vacated its January 15, 2002, order, granted the preliminary objections set forth by the Fundraising Entities, and dismissed the case with prejudice.11
Parents appealed to the Superior Court.12 Before the Superior Court, Parents raised one issue: whether the state trial court erred as a matter of law when it held that the district court‘s finding regarding foreseeability in the federal case against the School District defendants was applicable to the issue of foreseeability in the state negligence action against the Fundraising Entities, who were not defendants in the federal case, and whose actions, consequently, were never analyzed in that case. In response, 84 Services and Manzek contended that Parents were collaterally estopped from re-
Initially, the Superior Court rejected the claim that collateral estoppel applied to preclude Parents’ appeal. Specifically, the court noted that collateral estoppel applies if: (1) the issue decided in the prior case is identical to the one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment. Folino v. Young, 523 Pa. 532, 568 A.2d 171, 174 (1990). The Superior Court was unable to find the first, second, or fourth elements of collateral estoppel because the district court‘s decision in the federal case was rendered against the School District defendants and in no way implicated the Fundraising Entities. The Superior Court noted that in a negligence case, the harm suffered by the plaintiff must be foreseeable to the defendant, in light of that particular defendant‘s conduct. Huddleston, 700 A.2d at 457. Thus, the Superior Court reasoned that Parents “did not have a full and fair opportunity to litigate the issue of whether the harm suffered by L.W. was foreseeable to [the Fundraising Entities] in light of the respective conduct of each [the Fundraising Entities and the School District defendants].” R.W. v. Manzek, 838 A.2d 801, 804-05 (Pa.Super.2003).
Next, the Superior Court addressed Parents’ argument that the state trial court erred in applying the district court‘s reasoning to find that the Fundraising Entities, non-parties in the federal case, were unable as a matter of law to foresee the harm befalling L.W., and consequently owed no duty of care to L.W. Notwithstanding its rejection of the applicability of collateral estoppel, the Superior Court found no error in the state trial court‘s adoption of the district court‘s analysis
Representatives of the school presumably solicited 84 Services for the fundraising effort, approved the fundraising materials and attended the fundraising meeting. The school must have been familiar with fundraising efforts since, as appellants allege, it was their custom and practice to conduct similar meetings at all of its elementary schools. The school district, moreover, has a closer nexus to its students than a fundraising company [does]. If, as the district court concluded, the school and its superintendent could not have foreseen the harm suffered by L.W., it is certainly reasonable to conclude the company the district solicited to give the fundraising presentation and its owner likewise could not have foreseen the harm. Moreover, it is clearly reasonable to conclude Giftco, Inc., and Cookbook, Inc., both of whom merely supplied fundraising brochures and products to 84 Services, could not have foreseen the harm.
R.W., 838 A.2d at 807 (internal citations omitted). Thus, the Superior Court affirmed the trial court’ dismissal of the complaint.
Parents sought allocatur asking us to decide whether the state trial court and Superior Court properly relied upon the district court‘s conclusions in the federal case against the School District defendants in granting the Fundraising Entities’ preliminary objections and dismissing the Parents’ state negligence action. We begin by reviewing the familiar standard of review applicable to assessing preliminary objections in the nature of a demurrer. In such an instance, all material facts as set forth in the complaint, as well as all inferences reasonably deducible therefrom, must be accepted as true. Bilt-Rite Contractors, 866 A.2d at 272. Cognizant of this factual bias in a plaintiff‘s favor, we must determine whether there is no potentiality of recovery. Small v. Horn, 554 Pa. 600, 722 A.2d 664 (1998). “Where a doubt exists as to whether
As we have explained multiple times, Parents’ complaint in the federal case was against the School District defendants; their complaint in the state negligence action is against the Fundraising Entities. In stating their claim for negligence against the Fundraising Entities, Parents’ averred in the designated paragraphs of their complaint the following:13
Paragraph 11: The fundraising meeting was conducted by Frank Manzek as an agent and employee of Manzek and 84 Services.
Paragraph 12: The students attending the fundraising meeting, including L.W., were of tender age and incapable of appreciating the dangers of fundraising activities and methods.
Paragraph 14: Frank Manzek at this meeting described the fundraising activities to L.W. and other students. He “belabored” the criteria for winning prizes, and displayed some of the available prizes. He primed the students’ enthusiasm for the fundraising competition. He gave each a free “gel pen.”
Paragraph 15: Fundraising materials prepared by defendants Cookbook and Giftco were distributed by Frank Manzek to the students, including L.W., that “specifically contradicted the warnings of L.W.‘s parents not to approach strangers to sell fundraising products”
Paragraph 16: No one told L.W. about the dangers inherent in the fundraising competition; notwithstanding that Manzek and 84 Services knew or should have known of the dangers “exploiting” children as fundraisers.
Paragraph 17: None of the materials distributed to L.W. contained any “warnings, guidelines or disclaimers regard-
ing the dangers inherent in the fundraising activities being promoted” by the Fundraising Entities.
Paragraph 18: As the result of the fundraising representations of Frank Manzek, L.W. was determined to win a prize. Although her parents warned her to not go to stranger‘s homes, “these general warnings could not compete with defendant Manzek‘s promises of specific prizes and classroom parties. By conducting the fundraising activities as a competition, defendants ... incited and encouraged [L.W.] ... to ignore the warnings and guidelines of their parents, and their zeal to secure bigger and better prizes for both themselves and for their classrooms at large.”
Paragraph 21: When L.W. approached Fleming‘s home, consistent with the instructions given by Frank Manzek, she approached Fleming, introduced herself and asked him to buy candy as part of the school fundraiser.
Paragraph 35: The dangers to which defendants exposed L.W. were foreseeable in that national groups recommended against children being used in fundraising and other children had been killed while participating in fundraising.
Paragraph 36: Notwithstanding the foreseeability of danger, defendants “evidenced a reckless disregard and deliberate indifference to the safety of L.W. and other students by structuring the fundraising as a prize winning competition; encouraging L.W. to solicit strangers; and not providing L.W. or her parents with sufficient warnings.”
Paragraph 39: Defendants had actual or constructive knowledge of the dangers inherent in conducting school fundraising activities as prize winning competitions and encouraging elementary school students to approach strangers to sell fundraising merchandise.
Paragraph 40: Defendants had actual or constructive knowledge that neither the fundraising meeting nor the fundraising materials warned L.W. of the dangers inherent in the fundraising activities and methods.
The Fundraising Entities, echoing the rationale of the Superior Court, note correctly that Parents pleaded that the School District held fundraisers annually in each of its elementary schools. From this well-pleaded and therefore accepted fact, the Superior Court presumed, and the Fundraising Entities argue, that the School District must have solicited the Fundraising Entities’ services and been familiar with their efforts. Moreover, again premised on the same factual foundation, the Fundraising Entities, once more following the Superior Court‘s lead, argue that there is a necessary inference in this case that the School District defendants maintained a closer relationship with L.W. than did they. Thus, the argument concludes, assuming the School District‘s superior familiarity with the fundraising activities and with L.W. personally, if her attack was not foreseeable to the School District defendants, it surely could not have been foreseeable to the more removed and unfamiliar Fundraising Entities.
We agree with Parents. As set forth in substantial detail above, they averred that the Fundraising Entities had actual or constructive knowledge of the dangers inherent in conducting school fundraising activities as prize winning competitions and in encouraging elementary school students to approach strangers to sell fundraising merchandise. Parents averred also that notwithstanding that the Fundraising Entities knew or should have known of the dangers of exploiting children as fundraisers, the Fundraising Entities nevertheless failed to warn the students or their parents, including Parents herein, either verbally or through the written materials distributed to direct the fundraising activities. Moreover, Par-
We believe that the trial and Superior courts erred in deferring to the district court‘s analysis notwithstanding a wholly distinct set of defendants in that case. We believe it unnecessary to engage in a comparative analysis of which set of defendants, the School District defendants of the Fundraising Entities, knew L.W. or understood the dangers inherent in employing children as fundraisers better. Whether the district court was correct in dismissing the case against the School District defendants in the federal state-created danger case is simply not before us. What is before us is whether the facts contained in the instant complaint set forth a cause of action for negligence against the Fundraising Entities pursuant to Pennsylvania law. Simply said, as explained above, they do. The attempt by the trial and Superior courts to look beyond the four corners of the complaint, to draw inferences from the district court‘s holding and to employ those inferences as support for dismissal of this case was improper. We decline to permit such extrinsically premised supposition. Accordingly, we respectfully reverse and remand for further proceedings consistent with this opinion.14
Justice NIGRO, Justice NEWMAN and Justice EAKIN join the opinion.
Justice CASTILLE did not participate in the consideration or decision of this case.
Chief Justice CAPPY files a dissenting opinion.
Justice SAYLOR dissents.
Chief Justice CAPPY, Dissenting.
Because I cannot agree with the reasoning or the conclusions drawn by the majority, I must respectfully dissent.
In my opinion, I do not believe that Appellees needed to provide a warning that there exist in the world evil people who could possibly cause intentional harm to minor students. Of course, it is an unfortunate fact that heinous acts are committed against small children by people such as Timothy Fleming (“Fleming“). And yet, this does not make it incumbent upon defendants such as Appellees to provide a warning of this generalized risk. Appellees had no specific knowledge that Fleming posed such a risk to L.W.1 In the absence of such particularized knowledge, I am chary of imposing on individuals and business enterprises a duty to warn that unknown third parties could potentially cause harm by engaging in criminal acts.
Furthermore, even if I were to agree that Appellees had such a duty, I do not see how Appellants will ultimately prevail in this matter. Although this issue has not been raised before this court, in my opinion, it is apparent that Appellants’ complaint has tacitly conceded that there is no causation in
For these reasons, I disagree with the majority‘s order reversing the order of the Superior Court and must respectfully dissent.
Notes
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer‘s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable....