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HomeMy WebLinkAbout2013-1197 E.G. a Minor, : COURT OF COMMON PLEAS OF by J.G. and S.G., : CUMBERLAND COUNTY, PENNSYLVANIA Her Parents and Natural Guardians, : PLAINTIFFS : : v. : : SCOTT FARRELL, SR., : KATHLEEN FARRELL and : SCOTT FARRELL, JR. : DEFENDANTS : 13-1197 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS’ COMPLAINT BEFORE HESS, P.J., MASLAND, J., AND PLACEY, J. OPINION AND ORDER OF COURT Masland, J., September 20, 2013:-- Before the court are the Preliminary Objections filed by Scott Farrell, Sr., Kathleen Farrell, and Scott Farrell, Jr. (“Defendants”) to the Amended Complaint filed by E.G. and her parents and natural guardians, J.G. and S.G. (“Plaintiffs”). After briefing and argument by the parties, we now sustain Plaintiffs’ preliminary objections in accordance with the following opinion. I. Background On April 24, 2013, Plaintiffs filed an Amended Complaint, averring numerous claims of negligence relating to a series of incidents where Defendant, then sixteen year-old Scott Farrell, Jr., allegedly sexually assaulted then twelve year-old Plaintiff, E.G, at the Defendants’ residence. Plaintiffs made claims under twelve Restatement (Second) of Torts sections. Defendants then filed preliminary objections for legal insufficiency of the following Restatement sections: (1) Section 319 - Duty of Those in Charge of Persons Having Dangerous Propensities; (2) Section 320 - Duty of Persons 13-1197 CIVIL TERM Having Custody of Another to Control Conduct of Third Persons; (3) Section 324A – Liability to Third Person for Negligent Performance of Undertaking. Defendants request that these claims be stricken from the Amended Complaint with prejudice. II. Discussion A. Standard of Review Defendants’ objections are in the nature of a demurrer, which challenges the claims’ legal sufficiency. Lutz v. Springettsbury Twp., 667 A.2d 251, 253 (Pa. Cmwlth. 1995). In ruling on preliminary objections in the nature of a demurrer, all well-pleaded facts and all reasonable inferences that may be drawn from them are accepted as true. Id. However, legal conclusions and unjustified inferences are not deemed admitted. Id. A demurrer will be sustained only when the court is certain that no recovery may be had on the pleaded facts. Id. The court must resolve issues concerning preliminary objections solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the objection. Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994). With this standard in mind, we review Defendants’ preliminary objections. B. Defendants’ Preliminary Objection to Plaintiffs’ Claim for Violation of Restatement (Second) of Torts Section 319 - Duty of Those in Charge of Persons Having Dangerous Propensities Defendants object to the legal sufficiency of Section 319 on the basis that this section does not apply to parent-child relationships. Section 319 provides: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to -2- 13-1197 CIVIL TERM control the third person to prevent him from doing such harm.” Restatement (Second) of Torts § 319 (1965). Comment (a) to this section states: The rule stated in this section applies to two situations. The first situation is one in which the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal. The second situation is one in which the actor has charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or otherwise knows or should know. Id. Pennsylvania case law has limited the application of this section to mental health providers, group homes, schools, youth centers and management companies and has not expressly included parent-child relationships and the like. See Emerich v. Philadelphia Ctr. for Human Dev., 720 A.2d 1032 (Pa. 1998) (applying duty of those in charge of persons having dangerous propensities to healthcare providers); Brisbine v. Outside in Sch. Of Experiential Educ., Inc., 799 A.2d 89 (Pa. Super. 2002) (applying duty of those in charge of persons having dangerous propensities to schools and youth centers). California is the only state to apply the duty of those in charge of persons having dangerous propensities to a parent-child relationship. See Robertson v. Wentz, 187 Cal. App. 3d 1281, 1288 (Cal. App. Ct. 1st Dist. 1986). Therefore, there is no legal authority binding this Court to the application of Section 319 to a parent-child relationship and we decline to now create such law. Additionally, Plaintiffs have not alleged that any of the applicable relationships under this Section exist in their case. Accordingly, we conclude that Plaintiffs’ claim that Defendants’ violated Section 319 is insufficient and Defendants’ first preliminary objection is sustained. -3- 13-1197 CIVIL TERM C. Defendants’ Preliminary Objection to Plaintiffs’ Claim for Violation of Restatement (Second) of Torts Section 320 - Duty of Persons to Control Conduct of Third Persons As with Section 319, Defendants object to the legal sufficiency of Section 320 on the basis that this section does not apply to parent-child relationships. Section 320 provides: One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create and unreasonable risk of harm to him, if the actor: (a) knows or has reason to know that he has the ability to control the conduct of the third persons, and (b) knows or should know of necessity and opportunity for exercising such control. Restatement (Second) of Torts § 320 (1965). Furthermore, comment (a) to this section makes the rule applicable to “a sheriff or peace officer, a jailer or warden of a penal institution, officials in charge of a state asylum or hospital for the criminally insane, or to teachers or other persons in charge of a public school. It is also applicable to persons conducting a private hospital or asylum, a private school, and to lessees of convict labor.” Id. No Pennsylvania case law applies Section 320 to a parent-child relationship. The only case from Pennsylvania courts related to this section involves an interaction with a police officer. Ammlung v. Platt, 302 A.2d 491 (Pa. Super. Ct. 1973). In the absence of case law applying this section to a parent-child relationship and the absence of a parent-child relationship in the comment, we decline to extend the duty of persons to -4- 13-1197 CIVIL TERM control conduct of third persons to a parent-child relationship. Similarly to Plaintiff’s claim for Section 319, Plaintiffs do not allege any applicable relationship exists in their case to hold Defendants liable for violating this duty. Additionally, because Section 316, Duty of Parents to Control Conduct of Child, does apply to a parent-child relationship, holding Section 320 to the same standard would be duplicative. Accordingly, we conclude that Plaintiffs’ claim that Defendants’ violated Section 320 is insufficient and Defendants’ second preliminary objection is sustained. D. Defendants’ Preliminary Objection to Plaintiffs’ Claim for Violation of Restatement (Second) of Torts Section 324A - Liability to Third Persons for Negligent Performance of Undertaking Defendants object to Section 324A claiming Plaintiffs have not alleged that Defendants agreed to render any services to Plaintiffs. Plaintiffs counter that negligent performance of an undertaking is applicable where Defendants gratuitously render services. This section states: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Restatement (Second) of Torts § 324A (1965). Comment (b) to this section further provides, “[t]his Section applies to any undertaking to render services to another, where -5- 13-1197 CIVIL TERM the actor’s negligent conduct in the manner of performance of his undertaking, or his failure to exercise reasonable care to complete it or to protect the third person when he discontinues it, results in physical harm to the third person or his things. It applies both to undertakings for consideration, and to those which are gratuitous.” Id. Although gratuitous services are incorporated into this Section, Pennsylvania case law only addresses liability to third persons for negligent performance of undertaking in business relationships or relationships that involve rendering of services for many years. See Emerich v. Philadelphia Ctr. for Human Dev., Inc., 720 A.2d 1032, 1041 (Pa. 1998) (applying a similar duty to health care providers); Casselbury v. Am. Food Serv., 30 A.3d 510, 516 (Pa. Super. Ct. 2011) (applying liability to third persons for negligent performance of undertaking to a food service company); Troxel v. A.I. Dupont Inst., 675 A.2d 314, 316 (Pa. Super. Ct. 1996) (applying liability to third persons for negligent performance of undertaking to a doctor); Beury v. Hicks, 323 A.2d 788, 789 (Pa. Super. Ct. 1974) (applying liability to third persons for negligent performance of undertaking to a person providing tree maintenance for twenty-four years). In the instant case, no business relationship exists between Defendants and Plaintiffs. Additionally, there has been no long-term undertaking by Defendants to render services nor has there been any economic transfer or contractual relationship between Plaintiffs and Defendants. Therefore, we find that Section 324A does not apply to the relationship in this case and sustain Defendants’ third preliminary objection. III. Conclusion For the above stated reasons, Defendants’ preliminary objections are sustained and the claims relating to Sections 319, 320, and 324A are stricken from Plaintiffs’ -6- 13-1197 CIVIL TERM Amended Complaint with prejudice. Defendants are directed to file an Answer to Plaintiff’s Amended Complaint to the remaining claims within twenty (20) days of the entry of this opinion and order. ORDER OF COURT AND NOW, this 20th day of September 2013, the Preliminary Objections filed by SUSTAINED Defendants are with prejudice. Defendants are directed to file an Answer to Plaintiff’s Amended Complaint to the remaining claims within twenty (20) days of the entry of this opinion and order. By the Court, Albert H. Masland, J. Stephen J. Summers, Esquire For Plaintiffs Benjamin D. Andreozzi, Esquire For Defendants -7-