Lead Opinion
OPINION
In
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,
Pursuant to a complaint filed in the Court of Common Pleas of Indiana County, Parents allege that on September 10, 1999, all students in grades kindergarten through fifth of the Banks-Canoe Elementary School of the Punxsutawney Area School District (the School District) were instructed by Ms. Neal, the head teacher, to go to the school’s all-purpose room for a fundraising meeting.
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 reach her goal. Parents permitted her to walk to a friend’s home approximately one mile away to sell something to her friend’s mother.
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 fund-raiser. 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.
Parents filed the federal case in district court asserting claims against the School District defendants under 42 U.S.C. § 1983,
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 of their conduct, Parents cited the policy of numerous parent-teacher associations and other such organizations that children should not take part in fundraisers.
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 § 1983. The district court assumed that the third element, which requires the existence of some relationship between the School District defendants as the state actors and L.W., was satisfied. It found, however, that Parents had failed to establish the first, second, and fourth elements. As to the first element, the requirement that the harm be foreseeable and fairly direct, the district court found that:
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 unforeseeable 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 at, Civil Action No. 00-861, at 15 (W.D.Pa., February 28, 2001), citing Morse v. Lower Merion Sch. Dist.,
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,
Accordingly, the district court granted the School District defendants’ motion to dismiss the § 1983 claim and declined to exercise pendent jurisdiction over the state-law negligence claims against the Flmdraising Entities and the state-law assault claim against Fleming. R.W. and C.W. v. Punxsutawney Area School District et al, Civil Action No. 00-861 (W.D.Pa., February 28, 2001). The dismissal of the complaint was without prejudice to Parents’ right to pursue the state-law negligence claims against the Fundraising Entities, as well as the assault
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).
In Pennsylvania, the elements of a cause of action based upon negligence are:
(1) 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;
(2) defendant’s failure to conform to the standard required;
(3) a causal connection between the conduct and the resulting injury;
(4) actual loss or damage resulting to the plaintiff.
Phillips v. Cricket Lighters,
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,
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; beyondthat 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,
In deciding whether to impose a duty, we have adopted a five-factor test, focusing upon:
(1) the relationship between the parties;
(2) the utility of the defendant’s conduct;
(3) the nature and foreseeability of the risk in question;
(4) the consequences of imposing the duty; and
(5) the overall public interest in the proposed solution.
See Bilt-Rite Contractors, Inc.,
Before the trial court, Parents and Fundraising Entities focused on the first and third factors in the five-factor test. Regarding the first factor, duty is predicated on the relationship that exists between the parties at the relevant time. See Althaus,
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
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.
Parents appealed to the Superior Court.
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,
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 regarding the School District defendants in the federal case as justification for finding the lack of foreseeability equating to a lack of duty resulting in dismissal of Parents’ action against the Fundraising Entities in state court:
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.,
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,
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
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 regarding 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.
Resolution of this case turns on whether the harm that befell L.W. was sufficiently foreseeable to the Fundraising Entities to establish the requisite duty from them to L.W. Parents argue that when their well-pleaded facts are assessed in light of the noted and oft-stated standard for determination of the merits of preliminary objections and distinct from the shadow of the federal case, which Parents rightfully point out was against different defendants, they clearly establish such duty and therefore set forth a cause of action.
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 Fund-raising 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, Parents assert that these inherent dangers were exasperated by the Fundraising Entities when they enticed the children, including L.W., into dangerous activity by offering prizes and classrooms parties; whetting the children’s appetite and thereby encouraging dangerous activity by showing the prizes and handing out gel pens to each student. Accepting these facts and all inferences drawn therefrom, as we must, we believe it evident, and indeed obvious, that Parents have stated a cause of action against the Fundraising Entities. Whether these facts will survive discovery and motions for summary judgment, and, if so, whether Parents can meet their burden before a jury and obtain recovery is for another day. It was, however, error to dismiss this case on preliminary objections.
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.
Notes
. Parents assert that it is the School District’s annual custom and practice to conduct similar fund-raisers in all of its elementary schools to raise money for the School District.
. 84 Services is a Pennsylvania Corporation that specializes in packaging and selling fundraising projects and merchandise to individuals and organizations. Scott Manzek is the owner of 84 Services. Frank Manzek is Scott Manzek's father, and is not a party to this action. To eliminate confusion, Frank Manzek will be referred to by his full name while Scott Manzek is referred to simply as Manzek.
. Cookbook Publishers, Inc., and Giftco, Inc., are Kansas and Illinois corporations, respectively, which specialize in helping schools and nonprofit organizations raise money through consultation and research. They also provide fundraising products and materials to various school districts nationwide.
. Fleming was charged with attempted criminal homicide, aggravated assault, rape, aggravated indecent assault, unlawful restraint, and involuntary deviate sexual intercourse with regard to his attack on L.W. He eventually pleaded guilty to attempted criminal homicide and involuntary deviate sexual intercourse and was sentenced to seven and one-half to fifteen years' incarceration.
. 42 U.S.C. § 1983, entitled “Civil action for deprivation of rights'' provides:
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....
42 U.S.C. § 1983.
. See DeShaney v. Winnebago County Dept. of Social Servs.,
. It appears from the record that at the time Parents filed the action in district court, Fleming was incarcerated for the attack on L.W. Initially, the district court in the federal case entered a default judgment against him. Upon dismissing the federal state-created danger action against the School District defendants, the district court in the federal case also declined to exercise pendent jurisdiction over the state-law claims, dismissing the assault claim against Fleming, and vacating the default judgment entered against him without prejudice to Parents’ right to pursue the assault claim in state court.
. For example, Parents cited the following: The National Parent Teacher Association has a policy that “children should never be exploited or used as fund-raisers” and “children should not take part in fund-raising activities”; the Pennsylvania Congress of Parents and Teachers, Inc., has a policy that "children should never be exploited or used as fundraisers”; and the Director of Pennsylvania School Boards Association Insurance Trust has stated that Pennsylvania school districts are discouraged from engaging in fundraising activities that utilize children “because of all the publicity about kids getting hurt going door to door trying to raise money.”
. Specifically, Parents noted that Tiffany Holzer, nine years old, was killed by a tractor-trailer while selling candy for a school fundraiser, and Edward Werner, eleven years old, was sodomized and murdered while participating in a school fundraiser. The story of Werner’s death was carried in the October 2, 1997, issue of the local Punxsutawney Spirit newspaper, which is published and distributed in L.W.’s neighborhood.
. Parents also asserted an ad ion against Fleming for assault, seeking compensatory and punitive damages for physically attacking and sexually assaulting L.W.
. The case against Fleming was not dismissed.
. The Fundraising Entities initially sought to quash the appeal, arguing that the order was not final because Fleming remained an active defendant. (See Pa.R.A.P. 341, providing that “an appeal may be taken as of right from any final order of an administrative agency or lower court”). The Superior Court agreed and quashed the appeal. On January 3, 2003, the state trial court entered a default judgment against Fleming, rendering final the order of July 30, 2002, and Parents appealed.
. The following paragraphs quote verbatim from the complaint only where quotation marks are employed. Otherwise these paragraphs synthesize the complaint’s substantive factual averments.
. We recognize (hat an undercurreni of this appeal is how the "foreseeable and fairly direct” element of a state created danger cause of action compares to the foreseeability analysis necessary to establish a duty in a state negligence cause of action. While this is an interesting issue, because of ottr disposition of this case is based on the different parties to the state and federal cases, it is not before us and must consequently await another day.
Dissenting Opinion
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.
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 this matter. In a failure to warn case, a defendant will not be held liable, even in the absence of making a warning, when the plaintiff already knew of the danger which the missing warning allegedly should have cautioned and engaged in the dangerous activity anyway. See Phillips v. A-Best,
For these reasons, I disagree with the majority’s order reversing the order of the Superior Court and must respectfully dissent.
. This is in contrast to Emerich v. Philadelphia Center for Human Development, Inc.,