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HomeMy WebLinkAbout01-6641 CIVILMARGARET STILL and IN THE COURT OF COMMON PLEAS OF RICHARD STILL, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs 01-6641 CIVIL VS. CALVIN F. MULLER and CIVIL ACTION - LAW HERTZ CORPORATION, Defendants IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT. HERTZ CORPORATION BEFORE BAYLEY AND HESS, J.J. OPINION AND ORDER Before the court are the preliminary objections of the defendant, Hertz Corporation, to the plaintiffs' amended complaint. This action arises from a motor vehicle accident which occurred on December 17, 1999. Plaintiff, Margaret Still, alleged in her complaint that she was traveling on exit ramp No. 17 of Interstate 81, attempting to merge onto SR11, when her vehicle was rear-ended by the defendants' vehicle. The plaintiff claims to have suffered serious injuries from the accident at issue and claims, further, that such injuries were proximately caused by the defendants' negligence. The applicable portion of Count II of plaintiff' s amended complaint is as follows: 26. The occurrence of the aforementioned collision and the resultant injuries to the Plaintiff, Margaret Still, were caused directly and proximately by the negligence, carelessness or recklessness of Defendant, Hertz Corporation, acting solely and/or in conjunction with Defendant Calvin F. Muller, generally, and more specifically, as set forth below: (a) In allowing Defendant, Calvin F. Muller, to fail to keep a proper lookout for vehicles on the exit ramp 17 west, offI-81 waiting to merge on SR 01-6641 CIVIL 11 south in Middlesex Township, Cumberland County; (b) In allowing Defendant, Calvin F. Muller, to fail to operate his vehicle at such a speed, and under such control, so as to avoid striking Plaintiffs' vehicle; (c) In allowing Defendant, Calvin F. Muller, to fail to properly observe the traffic conditions then and there existing; and (d) In allowing Defendant, Calvin F. Muller, to fail to operate his vehicle at a speed and under such control, so as to be able to stop within the assured clear distance in violation of 75 Pa. C.S.A. 3361. 27. At all times material to the action, Defendant, Hertz Corporation, was negligent by and through the careless and/or reckless conduct of their agent, employee, servant, and/or representative, Calvin F. Muller. Plaintiff' s Amended Complaint, '[1 26, 27. The defendant's preliminary objections to plaintiffs' amended complaint seeks dismissal of Count II of plaintiffs' amended complaint for failure to state a claim upon which relief can be granted. This count alleges a cause of action against Hertz Corporation based upon a theory of negligent entrustment. Pursuant to Pa. R.C.P. 1028(a) (4), a preliminary objection in the nature of a demurrer is an appropriate means of challenging the legal insufficiency of a pleading. A preliminary objection in the nature of a demurrer can be sustained and a complaint dismissed when the complaint is clearly insufficient on its face to establish the pleader's right to relief. Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 584 A.2d 403 (1990). 2 01-6641 CIVIL A negligent entrustment occurs where one permits "a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others." Restatement (Second) of Torts {}308; Christiansen v. Silfies, 446 Pa. Super. 464, 472-473,667 A.2d 396 (1995). In Count II of plaintiff' s amended complaint, plaintiff attempts to state a claim of negligent entrustment against the defendant, Hertz Corporation. The amended complaint alleges that plaintiff' s injuries were caused by the "negligence, carelessness or recklessness of defendant, Hertz Corporation, acting solely and/or in conjunction with defendant, Calvin F. Muller." The amended complaint makes no factual averments with regard to whether the Hertz Corporation knew or should have known that Calvin F. Muller, the operator of the vehicle involved in the accident with plaintiff, intended to or was likely to use the Hertz vehicle in such a manner as to create an unreasonable risk of harm to others. In fact, the complaint fails to even make such an allegation. In short, the complaint is void of any of the elements of negligent entrustment. Count II fails to state a claim upon which relief can be granted. ORDER AND NOW, this day of November, 2002, the preliminary objections of defendant, Hertz Corporation, to Count II of the plaintiffs' amended complaint is SUSTAINED, and said count is DISMISSED. BY THE COURT, Kevin A. Hess, J. 01-6641 CIVIL Gregory M. Feather, Esquire For the Plaintiffs Kevin E. Osborne, Esquire For Defendant Hertz Corporation :rlm 4 MARGARET STILL and IN THE COURT OF COMMON PLEAS OF RICHARD STILL, her husband, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs 01-6641 CIVIL VS. CALVIN F. MULLER and CIVIL ACTION - LAW HERTZ CORPORATION, Defendants IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANT. HERTZ CORPORATION BEFORE BAYLEY AND HESS, J.J. ORDER AND NOW, this day of November, 2002, the preliminary objections of defendant, Hertz Corporation, to Count II of the plaintiffs' amended complaint is SUSTAINED, and said count is DISMISSED. BY THE COURT, Kevin A. Hess, J. Gregory M. Feather, Esquire For the Plaintiffs Kevin E. Osborne, Esquire For Defendant Hertz Corporation :rlm