T.A. v. Allen , 447 Pa. Super. 302 ( 1995 )

WIEAND, Judge.

Does a tenancy by the entireties of a residence create a special relationship which, under Restatement (Second) of Torts § 315, imposes a duty upon a wife to protect the husband’s minor licensees against the husband’s criminal or tortious conduct? The trial court held that a wife owed a duty of reasonable care to protect her husband’s grandchildren (by a prior marriage) from sexual abuse by the children’s grandfather, and a jury awarded damages against the wife for the husband’s conduct. This is a difficult issue. After careful consideration, however, we reverse.

In February, 1989, Eugene Allen was convicted of offenses involving the serial abuse of his three grandchildren: T.A., born June 17,1973; B.A., born September 15,1979; and H.A., born October 31, 1980. The offenses were committed in a residence, in Wilkinsburg, Allegheny County, and a cottage in Crawford County, both of which were owned jointly by Allen and his second wife, Elizabeth Ann Allen.

The three grandchildren, by their natural mother, Debbie Allen, commenced a civil action against Eugene Allen and Elizabeth Ann Allen to recover damages for the abuse committed by Allen upon his grandchildren. The complaint charged Eugene Allen with counts of battery, intentional infliction of emotional distress and negligent infliction of emotional distress. The cause of action against Elizabeth Ann Allen was based on an alleged failure to exercise due care to protect the children against the misconduct of their grandfather. Eugene Allen also caused Debbie Allen, his daughter and the mother of the children, to be joined as an additional defendant.¹ The case was tried in September, 1992, after which the jury found in favor of the children. The jury apportioned liability as follows: Eugene Allen, eighty percent (80%); Debbie Allen, fifteen percent (15%); and Elizabeth Ann Allen, five percent (5%). The jury awarded compensatory damages in the amounts of $2,500,000 for H.A.; $1,800,000 for T.A.; and $800,000 for B.A. Punitive damages were awarded against Eugene Allen in the amount of $10,000,000 for each of the plaintiffs and against Elizabeth Ann Allen in the amount of $230,000 for each plaintiff.

Following announcement of the verdicts, the defendants filed post-trial motions seeking judgments notwithstanding the verdicts or, in the alternative, a new trial. The plaintiffs filed a motion for delay damages pursuant to Pa.R.C.P. 238. The trial court awarded delay damages and denied the motions of the defendants for post-trial relief. The verdicts were molded to reflect the award of delay damages, and judgments were entered thereon. From the entry of judgment, Elizabeth Ann Allen, filed a timely appeal.² After argument before a three judge panel of the Superior Court, the appeal was certified for argument before the Court En Banc.³

“Our standard of review of an order denying judgment n.o.v. is limited: we must determine whether there was sufficient competent evidence to sustain the verdict.” Ludmer v. Nernberg, 438 Pa.Super. 316, 321, 640 A.2d 939, 941 (1994). “In reviewing a motion for judgment n.o.v., ‘the evidence must be considered in the light most favorable to the verdict winner, and he [or she] must be given the benefit of every reasonable inference of fact arising therefrom; [] any conflict in the evidence must be resolved in his favor.’ ” Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992), quoting Broxie v. Household Finance Co., 472 Pa. 373, 380, 372 A.2d 741, 745 (1977). See also: Scarborough v. Lewis, 523 Pa. 30, 36, 565 A.2d 122, 124 (1989). “[J]udgment notwithstanding the verdict may be entered only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds could fail to agree that the verdict was improper.” Murray v. Philadelphia Asbestos Corp., 433 Pa.Super. 206, 212, 640 A.2d 446, 449 (1994). See also: DiFrancesco v. Excam, Inc., 434 Pa.Super. 173, 177-178, 642 A.2d 529, 531 (1994); Armstrong v. Paoli Memorial Hospital, 430 Pa.Super. 36, 41-42, 633 A.2d 605, 608 (1993).

In order for liability to be imposed upon a defendant in a negligence action, the plaintiff must establish:

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. See Morena v. South Hills Health System, 501 Pa. 634, 642 fn. 5, 462 A.2d 680, 684 fn. 5 (1983).

Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987). See also: Burman v. Golay and Co., Inc., 420 Pa.Super. 209, 213, 616 A.2d 657, 659 (1992). “ ‘Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time.’” Pittsburgh National Bank v. Perr, 431 Pa.Super. 580, 584, 637 A.2d 334, 336 (1994) (emphasis deleted), quoting Morena v. South Hills Health System, 501 Pa. 634, 642, 462 A.2d 680, 684 (1983).

“Where there is no duty of care, there can be no negligence.” Maxwell v. Keas, 433 Pa.Super. 70, 73, 639 A.2d 1215, 1217 (1994). See also: Boyce v. United States Steel Corp., 446 Pa. 226, 230, 285 A.2d 459, 461 (1971); Zanine v. Gallagher, 345 Pa.Super. 119, 123, 497 A.2d 1332, 1334 (1985). In Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244 (1989), the Supreme Court said:

Before a person may be subject to liability for failing to act in a given situation, it must be established that the person has a duty to act; if no care is due, it is meaningless to assert that a person failed to act with due care. Certain relations between parties may give rise to such a duty. Although each person may be said to have a relationship with the world at large that creates a duty to act where his own conduct places others in peril, Anglo-American common law has for centuries accepted the fundamental premise that mere knowledge of a dangerous situation, even by one who has the ability to intervene, is not sufficient to create a duty to act.

Id. at 8, 564 A.2d at 1248. See: Restatement (Second) of Torts, § 314.

In this case, appellant did not cause injury to the grandchildren by her own, affirmative conduct. The allegation, rather, was that she had failed to protect her husband’s grandchildren from pedophilic tendencies of her husband of which she knew or should have known. At Section 315 of the Restatement (Second) of Torts, the applicable rule of law is recited as follows:

§ 315. General Principle

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts, § 315. Therefore, “[a]s a general rule, a person is not liable for the criminal conduct of another in the absence of a special relationship imposing a pre-existing duty.” Elbasher v. Simco Sales Service of Pennsylvania, 441 Pa.Super. 397, 398-400, 657 A.2d 983, 984 (1995), citing Feld v. Merriam, 506 Pa. 383, 392, 485 A.2d 742, 746 (1984).

Section 314A of the Restatement lists the following special relations which give rise to a duty to act affirmatively to protect another:

(1) A common carrier is under a duty to its passengers to take reasonable action

(a) to protect them against unreasonable risk of physical harm, and

(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

(2) An innkeeper is under a similar duty to his guests.

(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

(4) 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 opportunities for protection is under a similar duty to the other.

Our review of the record fails to disclose any special relationship between the grandchildren and appellant which would impose upon appellant a duty of exercising due care to protect the children from criminal abuse by their own grandfather. The children were not appellant’s grandchildren; she happened to be married to their grandfather. When the minor plaintiffs visited their grandfather, they were his guests. They were not in appellant’s custody, and there is no evidence that on such occasions appellant assumed any responsibility for or special relationship to the children. It is difficult under these circumstances to find any legal basis for imposing upon appellant an affirmative duty to protect the children. They were her husband’s grandchildren, and they had come to visit their grandfather. Appellant “was not present when the wrong was done and had in no way aided or abetted, counselled or encouraged its commission.” Hinski v. Stein, 68 Pa.Super. 441, 442 (1917). Cf. Community Federal Savings & Loan Ass’n v. Luckenbach, 436 Pa. 472, 476, 261 A.2d 327, 329 (1970) (“a husband is not responsible for the tortious acts of his wife committed outside his presence and without his actual or implied consent or direction.”).

The court in this case held and charged the jury that appellant had a duty to protect minors who came upon entire-ties property from others on the premises who were know to present a danger to the minors. In so doing, the trial court

failed to recognize the crucial distinction between the risk of injury from a physical defect in the property, and the risk from the criminal act of a third person. In the former situation the land[ower] has effectively perpetuated the risk of injury by refusing to correct a know and verifiable defect. On the other hand, the risk of injury from the criminal acts of third persons arises not from the conduct of the land[ower] but from the conduct of an unpredictable independent agent.

Feld v. Merriam, supra at 392, 485 A.2d at 746.

“The standard of care which a possessor of land owes to an entrant upon the land depends upon whether the entrant is a trespasser, licensee, or business invitee.” Trude v. Martin, 442 Pa.Super. 614, 624, 660 A.2d 626, 630 (1995). See: Carrender v. Fitterer, 503 Pa. 178, 184, 469 A.2d 120, 123 (1983). These classifications have been explained as follows:

The Restatement (Second) of Torts § 329 defines a trespasser as “a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” See also Oswald [v. Hausman], supra, 378 Pa.Super. 245, 253, 548 A.2d 594, 598 (1988). In contrast, a licensee is “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” § 330 of the Restatement; see also Oswald, 378 Pa.Super. at 254, 548 A.2d at 599. Finally, an invitee is described as follows:

(1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings with the possessor of the land.

Restatement (Second) of Torts § 332. Ott v. Unclaimed Freight Co., 395 Pa.Super. 483, 488, 577 A.2d 894, 896 (1990).

As to appellant, the grandchildren’s status could only have been that of licensees. The record does not show an invitation by appellant to her husband’s grandchildren. In fact, it was an invitation by the grandfather to which the children responded. Moreover and in any event, it is apparent they were not there to engage in business relations with appellant and, therefore, were not business invitees.

“Generally, a landowner owes to a mere licensee a duty to avoid injuring him through active negligence.” 27 P.L.E., Negligence, § 43, at 73. Section 342 of the Restatement, which requires a possessor of land to warn his or her licensees of certain “conditions on the land,” does not have application to the risk of injury from criminal acts of third persons. See: Feld v. Merriam, supra. See also: Restatement (Second) of Torts, § 344, which imposes a duty upon a possessor of land, who holds it open to the public to enter for business purposes, to exercise reasonable care to protect or warn against “the accidental, negligent or intentionally harmful acts of third persons or animals.” The Restatement does not impose upon a landowner a similar duty as to licensees. There is no special relationship between a possessor of land and a licensee which creates a duty upon the possessor of land to protect or warn licensees, whether adult or minor,⁴ against criminal acts committed on the land by a third person.

The children in the instant case were the guests of their grandfather. Appellant did not acquire a duty to protect them from the grandfather’s criminal misconduct merely because she was a tenant by the entireties with the grandfather, her husband, of the real estate on which the visits occurred. Indeed, to impose such a duty would be to place appellant in an untenable position between her husband and his grandchildren and impose upon her an impossible burden of insuring the safety of her husband’s grandchildren during visits between grandfather and grandchildren.

We hold, therefore, that the decision in this case is controlled by the legal principle contained in Section 315 of the Restatement (Second) of Torts. Under this rule, there is no duty to control the conduct of a third person so as to prevent him or her from causing physical harm to another person unless a special relationship exists between the actor and the third person or the actor and the person injured. In this case, the minor plaintiffs failed to prove a special relationship that would create an exception to the general rule. Therefore, appellant had no duty to control her husband’s conduct so as to protect the children whom he invited to visit and whom he surreptitiously abused. Appellant did not take on liability merely because she happened to be a co-owner of the building in which the criminal misconduct occurred.

Judgment reversed and entered n.o.v. in favor of appellant.

OLSZEWSKI, J., liles a concurring and dissenting opinion in which TAMILIA, J., joins. FORD ELLIOTT, J., files a dissenting opinion in which SAYLOR, J., joins.

1 . Guardians were appointed to represent B.A. and H.A., but T.A., who had attained the age of 18 by the time of trial, was permitted tc proceed as a plaintiff in her own right.

2 . In an unpublished memorandum decision, the Superior Court rejected an appeal by Eugene Allen and affirmed the judgment against him. See: Allen v. Allen, 441 Pa.Super. 663, 657 A.2d 45 (1994). There is no indication in the record that Debbie Allen ever filed an appeal from the judgment entered against her.

3 . Because we agree with appellant that she was entitled to a judgment n.o.v., we find it unnecessary to address the remaining issues which she raised as follows:

2. Whether the lower court erred in permitting testimony and/or the introduction of other evidence of a third person’s abuse on minors other than the plaintiff-appellees during plaintiff-appellees’ case against a party other than the third person-abuser?

3. Whether ihe lower court erred in permitting testimony concerning evidence of criminal activity hidden or locked away by a third person and/or permitting the introduction of such evidence in the plaintiff-appellees’ case against a party other than the third person abuser?

4. Whether the lower court erred in permitting testimony concerning a third person’s diaries of criminal activity (e.g., the “criminal trial diaries”) and the introduction of said third person's diaries in the plaintiff-appellees' case against a party other than the third person author without proper authentication?

5. Whether the lower court erred in permitting testimony and/or evidence regarding defendant-appellant’s pre-marital relationship with a co-defendant, while excluding testimony regarding defendant-appellant’s childhood and personal family history?

6. . Whether the lower court erred in denying the disclosure of a pre-sentence report prepared in the criminal trial of a co-defendant during the discovery phase and/or trial of the within civil action?

7. Whether the defendant-appellant may properly be held liable for punitive damages?

8. Whether the lower court erred in instructing the jury regarding the proper measure of damages applicable to the instant matter?

9. Whether the lower court erred in granting plaintiff-appellees’ Motion to Add Damages for Delay for emotional injuries?

10. Whether the lower court erred in the manner in which it molded the compensatory damage award to include delay damages?

11. Whether the lower court erred in denying defendant-appellant's Motion to Disqualify plaintiffs’ law firm from the representation of the plaintiffs?

4 . "An owner or occupant of premises is under no higher duty of care and liability toward infant licensees than is imposed on him with respect to adult licensees.” 27 P.L.E., Negligence, § 49, at p. 97.