HomeMy WebLinkAbout91-4119 CivilSEAN HUNT, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY I PENNSYLVANIA
V. CIVIL ACTION - LAW
KAPPA SIGMA, SHIPPENSBURG
UNIVERSITY CHAPTER, and its
TRUSTEE ad litem MITCHELL
B. WILSON and KAPPA SIGMA, NO. 4119 CIVIL 1991
an international fraternal
association and J. WILLIAM
CODDINGTON, .
Defendants JURY TRIAL DEMANDED
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
BEFORE HOFFER, BAYLEY and OLER, JJ
ORDER OF COURT
AND NOW, this 6t4 day of January, 1993, upon consideration of
Defendants' Preliminary Objections, as well as the briefs and
arguments of the parties, Defendants' Preliminary Objections are
DENIED.
BY THE COURT,
-", C/1
a
J.
John M. Glace, Esq.
STEFANON & GLACE
407 North Front Street
P.O. BOX 12027
Harrisburg, PA 17108-2027
Attorney for Plaintiff
Douglas B. Marcello, Esq.
THOMAS, THOMAS & HAFER
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorney for Defendant
SEAN HUNT, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
KAPPA SIGMA, SHIPPENSBURG
UNIVERSITY CHAPTER, and its
TRUSTEE ad litem MITCHELL
B. WILSON and KAPPA SIGMA, NO. 4119 CIVIL 1991
an international fraternal :
association and J. WILLIAM :
CODDINGTON,
Defendants JURY TRIAL DEMANDED
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
BEFORE HOFFER. BAYLEY, and OLER, JJ.
OPINION AND ORDER OF COURT
Oler, J.
At issue in the present case are preliminary objections filed
by Kappa Sigma, an international fraternal association,
(hereinafter National Fraternity) and Kappa Sigma, Shippensburg
University Chapter (hereinafter Local Chapter), to a complaint
filed by Sean Hunt (Plaintiff). The factual allegations, as
alleged in Plaintiff's Complaint, are as follows:
On February 3, 1990, Plaintiff, who was twenty years old,
attended a party on the premises of Local Chapter.' In order to
obtain entrance into this party, Plaintiff presented a printed
invitation, which was accepted by the members of the Local
Chapter.2 Once inside the premises, Plaintiff, along with other
fraternity members and social guests, were permitted to consume
alcohol from a keg of beer controlled by Local Chapter,
1 Plaintiff's Complaint, paragraph 6.
2 Plaintiff's Complaint, paragraph 7.
No. 4119 Civil 1991
irrespective of their age or degree of intoxication.'
While within the premises of the Local Chapter, Plaintiff was
struck about the face and upper body by J. William Coddington, a
member of the Local Chapter.° Subsequently, Plaintiff left the
fraternity house, but remained on the premises, where he was again
confronted by Mr. Coddington and several other unknown fraternity
members.5 At the time Plaintiff was "struck numerous times, and
after falling, was hit and kicked with great force until he was
unconscious.i6
Plaintiff also alleges that, as a result of this attack, he
has suffered extensive injuries which "caused immediate and intense
pain and suffering and required major facial surgery."'
Additionally, Plaintiff avers that "as a consequence of ... [this]
occurrence, [he] has undergone and will undergo pain and suffering,
facial disfigurement, anguish and humiliation, loss of life's
pleasures, inconvenience, and loss of earning capacity.ie
Plaintiff has filed the present action in negligence against
' Plaintiff's Complaint, paragraphs 8, 9.
' Plaintiff's Complaint, paragraph 10.
5 Plaintiff's Complaint, paragraph 11.
6 Plaintiff's Complaint, paragraph 11.
' Plaintiff's Complaint, paragraph 12.
8 Plaintiff's Complaint, paragraph 14.
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No. 4119 Civil 1991
Local Chapter and National Fraternity.9 Plaintiff alleges that
Local Chapter, "its officers and members had knowledge that J.
William Coddington ... became easily angered, confrontational
and/or violent and that such propensities occurred more often when
he consumed [alcohol].i10 Moreover, in addition to alleging that
Local Chapter knowingly furnished alcoholic beverages to underage
individuals, Plaintiff also avers that the Local Chapter had actual
or inferred knowledge that J. William Coddington had consumed
alcoholic beverages on February 3, 1990.11 Additionally, -Plaintiff
avers that the Local Chapter was negligent in that it:
(a) Failed to create, implement and maintain
a standard or procedure to recognize, prevent,
and/or immediately quell potentially violent
confrontations when alcohol was available.
(b) Knowingly permitted alcohol to be served
and/or distributed to minors in contravention
of Pennsylvania law and with knowledge that
consumption of alcohol could cause its
members, guests and invitees to suffer
consequences directly or indirectly related to
alcohol consumption.
(c) Failed to protect its guests and invitees
including Plaintiff from the reasonably
foreseeable consequences arising from the
violent and/or confrontational propensities of
Defendant J. WILLIAM CODDINGTON.
9 Plaintiff has also filed an action against J. William
Coddington. However, for purposes of this Opinion, this claim is
not at issue.
10 Plaintiff's Complaint, paragraph 18.
11 Plaintiff's Complaint, paragraphs 19, 20.
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No. 4119 Civil 1991
(d) Failed to prevent other fraternity
members from participating in the occurrence
described above.
(e) Failed to contact the campus police,
borough police, Pennsylvania State Police or
any other law enforcement agency in order to
protect Plaintiff during the assault by
Defendant J. WILLIAM CODDINGTON and/or to
abate the incurrence of Plaintiff's injuries.
(f) Failed to act reasonably and prudently
when Plaintiff entered the Defendant's
premises and thereby knowingly allowed the
incident described herein to occur. 12
With respect to the National Fraternity, Plaintiff avers that,
in addition to being vicariously liable for the actions of the
Local Chapter, the National Fraternity is negligent for the
following reasons:
(a) Failure to inspect the leased premises of
Defendant KAPPA SIGMA, Shippensburg University
Chapter, and ascertain that alcohol
consumption was unrestricted as to age,
condition and personality of consumer.
(b) Failure to recognize the obvious physical
signs of unrestricted alcohol consumption
including but not limited to discarded alcohol
receptacles including beer cans, beer bottles,
kegs, and by smelling the obvious beer smell
of the premises.
(c) Failure to control and/or stop alcohol
consumption within premises of Defendant KAPPA
SIGMA, Shippensburg University Chapter,
including the failure to curtail serving
and/or furnishment of alcohol to underaged,
obvious intoxicated, and/or physically or
verbally confrontational individuals.
12 Plaintiff's Complaint, paragraph 21.
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No. 4119 Civil 1991
(d) The per se negligent knowing furnishment
to minors who are legally incompetent to
handle the effects of alcohol.
(e) Failure to curtail and/or stop placing
social guests within a position of reasonably
foreseeable risk of assault and/or
confrontation by an individual or individuals
who are known to be assaultive including but
not limited to Defendant J. WILLIAM
CODDINGTON.
(f) Authorization or ratification by
acquiescence of serving or furnishing alcohol
to underaged persons, intoxicated persons,
and/or verbally and/or physically assaultive
persons.
(g) Failure to educate and otherwise instruct
members of Defendant KAPPA SIGMA, Shippensburg
University Chapter of the negative and
dangerous consequences of consumption of
alcohol by social guests and invitees
especially minors."
As a consequence of the injuries which resulted from the
alleged negligence of the Local Chapter and the National
Fraternity, Plaintiff is seeking general, special and punitive
damages in an amount in excess of $20,000.00.11
National Fraternity and Local Chapter have filed the present
preliminary objections in the form of a demurrer and a motion to
strike scandalous and impertinent matter. More specifically,
National Fraternity and Local Chapter have demurred to Plaintiff's
complaint, contending that:
13 Plaintiff's Complaint, paragraph 27.
11 Plaintiff's Complaint, ad damnum clauses.
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No. 4119 Civil 1991
(a) Plaintiff's Complaint fails to state a
cause of action against the National
Fraternity;
(b) Plaintiff's Complaint fails to state a
cause of action against the Shippensburg
Chapter;
(c) Plaintiff's Complaint fails to state that
either of the alleged participants in the
altercation were intoxicated;
(d) Plaintiff's Complaint fails to allege
that either person was served while visibly
intoxicated;
(e) Plaintiff's Complaint fails to state a
cause of action for punitive damages;
(f) Plaintiff's Complaint fails to state a
cause of action with regard to either
Shippensburg Chapter or the National
Fraternity. 15
Additionally, National Fraternity and Local Chapter have made a
motion to strike the references to alcohol contained in Plaintiff's
complaint, contending that such references constitute scandalous
and impertinent matter.16
For the reasons set forth in the following Opinion, National
Fraternity's and Local Chapter's demurrers are denied.
Furthermore, Defendants' motion to strike the references to alcohol
in Plaintiff's complaint is also denied.
It is well settled in Pennsylvania that in the trial court's
consideration of whether to grant a demurrer, "all material facts
is Defendants' PreliminaryObjections, ObjJ , paragraph 5.
16 Defendants' Preliminaryobjections, ObjJ , paragraph 7-12.
No. 4119 Civil 1991
set forth in the complaint as well as all inferences reasonably
deducible therefrom are admitted as true .... The question
presented by the demurrer is whether, on the facts averred, the law
says with certainty that no recovery is possible .... A demurrer
should be sustained only in cases where the plaintiff has clearly
failed to state a claim on which relief may be granted." Eckell v.
Wilson, 409 Pa. Super. 132, 135, 597 A.2d 696, 698 (1991)
(citations omitted). Furthermore, "[i]f there is any doubt as to
whether a claim for relief has been stated, the trial court should
resolve it in favor of overruling the demurrer." Creeger Brick and
Building Supply v. Mid -State Bank and Trust Co., 385 Pa. Super. 30,
33, 560 A.2d 151, 152 (1989).
With respect to Defendants' contention that Plaintiff's
complaint fails to state a cause of action against National
Fraternity and Local Chapter, it has been noted that the necessary
elements for an action in negligence are: "the existence of a duty
or obligation recognized by law; a failure on the part of the
defendant to conform to that duty, or a breach thereof; a causal
connection between the defendant's breach and the resulting injury;
and actual loss or damage suffered by the complainant." Orner v.
Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987). Upon
examination of Plaintiff's complaint, we believe that Plaintiff has
pled the elements necessary to establish a cause of action against
the National Fraternity and the Local Chapter.
rA
No. 4119 Civil 1991
It has been held in Pennsylvania that a social host is
"negligent per se in serving alcohol to the point of intoxication
to a person less than twenty-one years of age, and (he or she] can
be held liable for injuries proximately resulting from the minor's
intoxication." Congini v. Pottersville Valve Co., 504 Pa. 157,
162-163, 470 A.2d 515, 518 (1983) (footnotes omitted).17
Furthermore, the duty which a social host owes to his or her minor
guests is breached "with the service of any alcohol to a minor, not
just an amount sufficient to intoxicate the minor." Orner v.
Mallick, 515 Pa. 132, 137, 527 A.2d 521, 524 (1987).
This imposition of social host liability has been extended to
include fraternal organizations. See Alumni Assn. v. Sullivan, 524
Pa. 356, 572 A.2d 1209 (1990); Jefferis v. Commonwealth, 371 Pa.
Super. 12, 537 A.2d 355 (1988). In Jefferis, the Superior Court of
Pennsylvania enumerated the following elements as necessary to
impose social host liability for a situation involving an
intoxicated minor:
(1) the defendant must have intended to act
in such a way so as to furnish, agree to
furnish or promote the furnishing of alcohol
to the minor, and
17 This "finding of negligence per se does no more than
satisfy plaintiff's burden of establishing that a defendant's
conduct was negligent.... However, the burden remains on the
plaintiff to establish that his injuries were proximately
caused by the statutory violations. Congini v. Pottersville
Valve Co., 504 Pa. 157, 163 n.4, 470 A.2d 515, 518, n.4 (1983)
(citations omitted).
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No. 4119 Civil 1991
(2) the defendant must have acted in a way
which did furnish, agree to furnish, or
promote the furnishing of alcohol to the
minor, and
(3) the defendant's act must have been a
substantial factor in the furnishing,
agreement to furnish, or the promotion of
alcohol to the minor.
Jefferis v. Commonwealth, 371 Pa. Super. 12, 18-19, 537 A.2d 355,
358 (1988). Based upon this test, the question is "whether ...
[the fraternity] intentionally rendered substantial assistance to
the minor [plaintiff] in his consumption of alcohol." Id. at 19,
537 A.3d at 358-59. Furthermore, in discussing the issue of social
host liability in reference to a national fraternity, the
Pennsylvania Supreme Court has held that in order to be held
liable, the "social host must have 'knowingly furnished' alcoholic
beverages to a minor. The 'knowingly furnished' standard requires
actual knowledge on the part of the social host as opposed to
imputed knowledge imposed as a result of the relationship [between
the host and the minor]." Alumni Assn. v. Sullivan, 524 Pa. 356,
364, 572 A.2d 1209, 1212 (1990).18
In the present action, Plaintiff has averred that the National
Fraternity and the Local Chapter knowingly furnished alcoholic
18 In Alumni Assn., the Court granted the National
Fraternity's demurrer to the plaintiff's complaint, stating that
the complaint failed to allege that the defendant knowingly
furnished alcohol to a minor. In the present case, however,
Plaintiff does aver that both the National Fraternity and the Local
Chapter knowingly furnished alcohol to minors. See Plaintiff's
Complaint, Paragraphs 20, 21, 27, 28.
9
No. 4119 Civil 1991
beverages to minors, including Plaintiff.19 Moreover, Plaintiff
has also averred that the National Fraternity's and the Local
Chapter's furnishing of alcohol to minors caused the injuries
sustained by Plaintiff.20 Based upon the al lPRai-inne ,. -4 --A -'-
Plaintiff's
Plaintiff's complaint, we cannot say, as a matter of law, that
Plaintiff will not be able to recover from the National Fraternity
or the Local Chapter. Consequently, we cannot grant Defendants'
demurrer to Plaintiff's complaint for failure to state a cause of
action.
Defendants have also demurred to Plaintiff's complaint,
contending that the complaint fails to state a cause of action for
punitive damages. "In deciding whether to impose punitive damages
a court should not look to the third party's criminal conduct ...;
a court should not look to the end result ...; rather, the court
should examine the actor's conduct." Feld v. Merriam, 506 Pa. 383,
396, 485 A.2d 742, 748 (1984). Moreover, in order for a plaintiff
to recover for punitive damages, the defendant's conduct must be
"outrageous, because of the defendant's evil motive or his reckless
indifference to the rights of others." Id. at 395, 485 A.2d at 748
(quoting Restatement (Second) of Torts §908(2) (1968)).
19 Plaintiff's Complaint, paragraphs 20, 21, 27, 28. Since
Plaintiff has pled these facts, the demurrer must fail. However,
in order to prevail at trial, Plaintiff must prove that Defendants
knowingly served alcohol to minors.
20 Plaintiff's Complaint, paragraphs 22, 29.
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No. 4119 Civil 1991
Furthermore, in order to be held liable for punitive damages, the
defendant's "act, or the failure to act, must be intentional,
reckless or malicious." Id. at 396, 485 A.2d at 748.
In the present case, we believe that the allegations of
Plaintiff's complaint, if proven, could be sufficient to present an
issue as to punitive damages to a jury. Not only did Plaintiff
allege that the National Fraternity and Local Chapter knowingly
furnished alcoholic beverages to minors, 21 but he also averred that
the National Fraternity and the Local Chapter knew that J. William
Coddington "became easily angered, confrontational and/or violent
and that such propensities occurred more often when he consumed
alcoholic beverages. ,12 In light of these allegations, Plaintiff
has averred facts which, if proven, could be sufficient to permit
Plaintiff to recover punitive damages. Therefore, Defendants'
demurrer to Plaintiff's claim for punitive damages must be denied.
Finally, Defendants have filed a motion to strike the
references to alcohol contained in Plaintiff's complaint,
contending that such references constitute scandalous and
impertinent matter. In determining whether to grant a motion to
strike portions of a pleading, the court must keep in mind that
"allegations [that] do not appear to be wholly irrelevant ... will
21 Plaintiff's Complaint, paragraphs 20, 21, 27, 28.
22 Plaintiff's Complaint, paragraph 18. See also Plaintiff's
Complaint, paragraphs 27, 28.
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No. 4119 Civil 1991
not be stricken." Fromm v. Fromm, 42 Pa. D. & C.2d 77, 83 (Dauphin
Co. 1967). Applying this standard to the present case, we believe
that the references to alcohol contained in Plaintiff's complaint
are not wholly irrelevant. As mentioned above, a social host who
knowingly furnishes alcoholic beverages to a minor is per se
negligent. Given this rule of law, obviously the references to
alcohol do not constitute wholly irrelevant matter warranting a
motion to strike. Consequently, Defendants' motion must be denied.
ORDER OF COURT
AND NOW, thisZ$t4 day of January, 1993, upon consideration of
Defendants' Preliminary Objections, as well as the briefs and
arguments of the parties, Defendants' Preliminary Objections are
DENIED.
BY THE COURT,
S/ J. Wesley Oler, Jr
J.
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No. 4119 Civil 1991
John M. Glace, Esq.
STEFANON & GLACE
407 North Front Street
P.O. Box 12027
Harrisburg, PA 17108-2027
Attorney for Plaintiff
Douglas B. Marcello, Esq.
THOMAS, THOMAS & HAFER
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorney for Defendant
:rc
13