Rogers, G. v. Thomas, L. ( 2023 )

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2023 PA Super 31GEORGE ROGERS, ADMINISTRATOR : IN THE SUPERIOR COURT OF
OF THE ESTATE OF JOSHUA ROGERS : PENNSYLVANIA
:
Appellant :
:
v. :
:
LLOYD THOMAS, HAYDEN THOMAS :
AND/OR THE OUTDOORSMAN INC. : No. 1915 MDA 2018
Appeal from the Judgment Entered November 21, 2018
In the Court of Common Pleas of Susquehanna County Civil Division at
No(s): 2016-1244
SUZETTE BENET, ADMINISTRATOR : IN THE SUPERIOR COURT OF
OF THE ESTATE OF GILBERTO : PENNSYLVANIA
ALVAREZ :
:
Appellant :
:
v. :
:
LLOYD THOMAS, HAYDEN THOMAS : No. 1916 MDA 2018
AND/OR THE OUTDOORSMAN INC. :
Appeal from the Judgment Entered November 21, 2018
In the Court of Common Pleas of Susquehanna County Civil Division at
No(s): 2016-00869
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE,
J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J.
CONCURRING OPINION BY KUNSELMAN, J.: FILED: MARCH 2, 2023
I agree with the Majority that the Estates are not entitled to a new trial.
However, I disagree with its analysis to the extent that it holds that the crime
of voluntary manslaughter conclusively establishes two elements of the tort
of negligence — the existence of a duty and a breach of that duty. I do not
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believe the intentional action and mental state required to prove voluntary
manslaughter establish any of the elements of negligence. Therefore, I do
not join Parts III.A and III.B, of the Majority Opinion; I join the remainder of
the Opinion, and I concur in the result.
The operative complaints in these two cases alleged liability through
wrongful death and survival actions under a theory of negligence. The
complaints lump all the defendants together and allege that all three acted
carelessly. Because this is the only basis the Estates allege for liability, they
are limited to only a negligence cause of action. Under our rules of civil
procedure, plaintiffs are required to set forth each of their causes of action in
a separate count, so defendants can respond accordingly. See Pa.R.C.P.
1020.1
As the cases proceeded, the Estate of George Rogers moved for partial
summary judgment against all defendants, claiming that Defendant Lloyd
Thomas’ conviction for voluntary manslaughter conclusively established
liability for negligence, as a matter or law. Senior Judge Peter O’Brien from
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1 Judge Terry Nealon of Lackawanna County sustained preliminary objections
to the Complaint filed by the Estate of George Rogers on the basis that
plaintiffs grouped all defendants under one count and did not separate the
theories of liability against each. See Trial Court Order, 5/10/13. The order
allowed plaintiffs to file an amended complaint to correct this error. Id. at ¶5.
We could not find a subsequent amended complaint in the record, so it is
unclear whether the Estates ever filed one. The Complaint filed by the Estate
of Gilberto Alvarez in Luzerne County alleges virtually identical claims against
the same defendants, and similarly groups all allegations together under one
cause of action for negligence. As the Majority notes, both Complaints were
later transferred and consolidated for trial in Susquehanna County. See
Majority at 5.
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Lackawanna County granted partial summary judgment, only as to Defendant
Lloyd Thomas, agreeing that Lloyd’s criminal conviction barred him from
challenging the intent of his actions in the civil case. Trial Court Opinion,
10/1/14. After the case was transferred to Susquehanna County, the trial
court there adopted Judge O’Brien’s ruling under the coordinate-jurisdiction
rule.
The case proceeded to trial, and the jury slip presented the question of
whether each of the defendants2 was negligent, and whether the decedents
who Lloyd shot on that fatal day, were also negligent. As the Majority noted,
the jury found the defendants not negligent and decedents 100% negligent.
The Estates then appealed to this Court.
In their first two issues, the Estates argue that the trial court erred with
respect to negligence and comparative negligence. First, they claim that the
trial court should have instructed the jury to conclude that Lloyd was negligent
based on his conviction for voluntary manslaughter. Second, they claim that
the trial court should not have allowed the defendants to present evidence of
comparative negligence, because any comparative negligence of a plaintiff is
not a factor when a defendant acts with intent to harm. The Majority rejects
both claims and affirms the judgment for the defendants, which I agree is the
correct result.
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2 The only Defendants on the verdict slip were Lloyd and Outdoorsmen, Inc.;
judgment was entered in favor of Defendant Hayden as a matter of law before
the case was submitted to the jury.
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However, I disagree with the analysis. The Majority agrees that Lloyd
acted negligently and equates a criminal conviction for voluntary
manslaughter with two of the elements of a civil claim for negligence. In doing
so, the Majority conflates the separate legal bases underlying intentional and
negligent torts.
The fundamental basis of tort liability is divided into three types,
because every case in which civil liability has been imposed has rested upon
one of three distinct grounds for imposing it. These bases for liability are
negligence, intentional torts, and strict liability. See Monroe v. CBH20, LP,
___ A.3d ____, ____, 2022 PA Super 197, 2022 WL 17087072, at *8 (Pa.
Super. 2022) (en banc) (citing PROSSER & KEETON ON TORTS, § 7 at 32 (5th ed.
1984)). Each of these three doctrines imposes liability based on the state of
mind of the actor. For negligence, the actor does not intend the harm from
his actions but instead acts carelessly. For intentional torts, the actor intends
“to bring about a result which will invade the interests of another in a way that
the law does not sanction.” Prosser, THE LAW OF TORTS, § 8 at 31 (4th ed.
1971). For strict liability, the actor’s state of mind is irrelevant; liability is
imposed merely for undertaking an extremely risky or ultrahazardous activity
that causes harm to another.
With those theories in mind, it becomes clear that the crime of voluntary
manslaughter equates to an intentional tort, because one who commits such
a crime has acted with intent to bring about the result of shooting the victim.
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Intentionally shooting people invades their bodily “interests in a way that the
law does not sanction.” Id. It creates the intentional tort of battery.
Battery is defined by law as harmful or offensive
contact with the person of another. A “battery” is an
intentional offensive bodily contact. More technically,
“battery” is defined as an actor’s harmful or offensive
contact with another person, resulting from the actor’s act,
which is committed with the intent to cause the plaintiff or
a third person to suffer such a contact . . . Thus, the notion
of battery includes an act that impinges upon an individual’s
sense of physical dignity or inviolability, such as occurs
when a defendant throws a substance, such as water, or
sets a dog upon the plaintiff even though the defendant and
the plaintiff have not physically touched each other.
1 Summ. Pa. Jur. 2d Torts § 11:8 (2d ed.) 3
“The intent required [for battery] is only the intent to bring about the
contact; and given that, liablity will depend on whether there is a privilege,
because of the plaintiff’s individual consent, or otherwise.” Prosser § 8 at 37.
In fact, the tort of battery is the classic example to which the doctrine
of transferred intent applies. “If the defendant shoots . . . at A, intending to
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3 Voluntary manslaughter may also equate to the intentional tort of assault, if
the victims were in fear of a battery or were aware that a battery was
imminent. “An assault is an intentional attempt by force to do injury to the
person of another. An "assault" occurs when (1) a person acts without
privilege, intending to cause harmful or offensive bodily contact upon
another or to put another in reasonable and immediate apprehension of
harmful or offensive contact; and (2) the action does cause such an
apprehension. In other words, an assault is an act intended to put another
person in reasonable apprehension of an immediate battery, which act
succeeds in causing an apprehension of that battery.” 1 Summ. Pa. Jur. 2d
Torts § 11:1 (2d ed.)
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wound or kill him, and unfortunately hits B instead, he is held liable to B for
an intentional tort.” Id. at 32 (emphasis added). “The intent to commit a
battery upon A is pieced together with the resulting injury to B; it [(the intent)]
is ‘transferred’ from A to B.” Id. “The intention follows the bullet.” Id.
(quoting State v. Batson, 96 S.W.2d 384, 389 (Mo. 1936)). The doctrine of
transferred intent only applies when the actor intends to contact one person
but misses and hits another person. Clearly under Professor Prosser’s
hypothetical, if an actor shoots A outright, then he is liable to A for his
intentional battery. The actor is not liable for negligence.
In Pennsylvania, the crime of voluntary manslaughter involves an actor
who shoots someone intentionally. In such cases, the actor thinks he is
justified in the killing, but the basis for the justification is unreasonable.4 For
example, if an actor shoots someone in self-defense, because he thinks the
victim is going to shoot him first, but it later turns out that the victim was
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4 The relevant section of the Crimes Code provides:
A person who intentionally or knowingly kills an individual
commits voluntary manslaughter if at the time of the killing he
believes the circumstances to be such that, if they existed, would
justify the killing under Chapter 5 of this title (relating to general
principles of justification), but his belief is unreasonable.
18 Pa.C.S.A. § 2503(b). The elements of this crime are (1) an intentional
killing (2) “committed as a result of an unreasonable belief in the need for
deadly force in self-defense.” Commonwealth v. Washington, 692 A.2d
1024, 1029 (Pa. 1997) (citing Commonwealth v. Mehmeti, 462 A.2d 657,
661 (Pa. 1983), and Commonwealth v. McNeil, 439 A.2d 664, 669 (Pa.
1981)).
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unarmed, that is voluntary manslaughter. Notably, the privilege of self-
defense is available to claims for the intentional torts of assault and battery,
but not for claims of negligence. See id. § 16 at 98-99.
“The privilege to act in self-defense arises, not only where there is real
danger, but also where there is a reasonable belief that it exists.” Id. § 19 at
109. “The belief must, however, be one which a reasonable man would have
entertained under the circumstances.” Id. It “is not enough that [the
defendant] really believes that he is about to be attacked, unless he has some
reasonable ground for the belief . . . the issue of what was reasonable . . . is
frequently one for the jury . . . .” Id.
Here, Lloyd claimed he shot the decedents in self-defense, but the jury
found that this belief was unreasonable. This finding negated his privilege of
self-defense. In the absence of any privilege, Lloyd intended to contact his
victims with the bullets; thus, he was liable to them for batteries.
In sum, the crime of voluntary manslaughter equates to the intentional
tort of battery. Compare that crime with involuntary manslaughter, where
the actor does not intend to shot the victim, but undertakes a reckless or
grossly negligent act that accidentally kills the victim. The crime of
involuntary manslaughter equates to the tort of negligence.5
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5 Notably, the state of mind of the actor for this crime is a higher degree of
negligence, i.e., recklessness or gross negligence, which may support a claim
for punitive damages, but it still equates to a civil cause of action for
negligence. It is not an intentional tort or strict liability.
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In this case, the parties, the trial court, and the Majority assume that
the Estates alleged the correct theory of liability in their complaints against
Lloyd. Hence, they begin their analysis with a faulty premise. The Majority’s
analysis regarding the collateral estoppel effect of a criminal conviction on the
civil claim for negligence would be correct if Lloyd was convicted of involuntary
manslaughter. See Majority at 10-20. However, that was not the case here.
Nonetheless, any errors that resulted from the applying negligence
concepts to this case are irrelevant, because the result is the same: Lloyd is
not liable to the Estates for negligence. Lloyd did not act negligently when he
shot at the decedents; his conviction for voluntary manslaughter did not
establish a civil claim for negligence, as a matter of law. Instead, Lloyd’s
criminal conviction established the intentional tort of battery, as a matter of
law. See Prosser, supra. However, the Estates’ alleged no cause of action
for battery.6 For this reason, the trial court did not err when it failed to
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6 I understand why the Estates attempted to frame this as a claim for
negligence. No doubt they hoped that the defendants’ insurance would cover
any damages they sustained. Such insurance policies typically do not cover
damages caused by intentional acts, and most defendants do not have
sufficient personal assets to pay a civil judgment entered against them. Thus,
if the Estates win on an intentional tort claim, they may not be able to collect
on the judgment. Yet, calling an action “negligence” does not make it so.
Indeed, like the trial court here, other courts have found that a conviction for
voluntary manslaughter conclusively establishes a defendant’s intent, for
purposes of a subsequent civil action. See, e.g., Baber v. Fortner by Poe,
412 S.E.2d 814, 822 (W. Va. 1991) (concluding, in the context of an insurance
claim, that the adjudication of a killing which results in a voluntary
manslaughter conviction conclusively establishes the intentional nature of that
same act for the purposes of any subsequent civil proceeding). A conviction
(Footnote Continued Next Page)
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instruct the jury that Lloyd was negligent, and therefore liable to the Estates
for his actions. The jury reached the correct result, i.e., that Lloyd was not
negligent. Instead, Lloyd was an intentional tortfeasor. Because the Estates’
first issue has no merit, I concur with the Majority that no appellate relief is
due.
Turning to the Estates’ second issue involving comparative negligence,
I start by separating the claims against Lloyd and those against the other
defendants, specifically the Outdoorsmen, Inc.7 With respect to Lloyd, I agree
with the Estates’ argument that comparative negligence does not apply to an
intentional act. See, e.g., Hairston v. Allen, 153 A.3d 999, 1004 (Pa. Super.
2016) (“Importantly, [the Comparative Negligence Act (now the Fair Share
Act)] specifically addresses comparative negligence and applies only in actions
to recover damages for negligence. Here, [the actor] was alleged an
intentional tortfeasor, and [the victim] was alleged a negligent tortfeasor.
Therefore, arguably [the law regarding comparative fault] should not even
apply in this case.”).8
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for voluntary manslaughter, however, does not conclusively establish
negligence.
7 As noted above, the trial court granted summary judgment against Hayden
in the Rogers Estate case and a nonsuit against Hayden in the Alvarez Estate
case. Thus, the only remaining defendant was Outdoorsmen, Inc.
8Returning to Professor Prosser: “The ordinary contributory negligence of the
plaintiff is to be set over against the ordinary negligence of the defendant, to
bar the action. But where the defendant's conduct is actually intended to
(Footnote Continued Next Page)
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The jury should not have considered the negligence of the decedents in
evaluating the liability of Lloyd. However, the error was harmless, again,
because the Estates did not allege an intentional tort against Lloyd. The only
cause of action they alleged in their Complaints was for negligence. For this
reason, I agree with the Majority that no relief is due with respect to the action
against Lloyd.
With respect to Outdoorsmen, Inc., comparative fault of the decedents
was a proper consideration for the jury. The cause of action against this
defendant sounded in negligence. In their Answer and New Matter, among
other defenses, the defendants claimed that the decedents were also
negligent. Thus, the jury was charged with proportioning the relative liability
of each of these actors in accordance with our law on comparative negligence.
See 42 Pa.C.S.A. § 7102. The jury concluded that the decedents were 100%
at fault. Because the comparative fault of the decedents was an appropriate
jury question for Outdoorsmen, Inc., I agree with the Majority that no relief is
due with respect to this claim.
In sum, a criminal conviction for voluntary manslaughter does not
establish a civil claim for negligence; it establishes a civil claim for the
intentional tort of battery. Thus, Lloyd’s criminal conviction for this crime had
no effect on the Estates’ civil claims for negligence. Therefore, I agree that
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inflict harm upon the plaintiff, there is a difference, not merely in degree but
in the kind of fault; and the defense never has been extended to such
intentional torts. Thus, it is no defense to assault and battery.” Prosser, THE
LAW OF TORTS § 65 at 426 (4th ed. 1971).
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the trial court did not err by failing to instruct the jury that Lloyd was
negligent, as a matter of law.
Additionally, the law of comparative negligence does not apply to
intentional torts. As such, the acts of the decedents were not relevant to
determining Lloyd’s liability for his intentional acts. However, any error in this
regard was harmless, because the Estates did not allege a cause of action for
battery against Lloyd. By contrast, comparative negligence does apply when
all the actors are alleged to have acted carelessly. Thus, the jury appropriately
compared the negligence of the decedents with Outdoorsmen, Inc., when it
concluded the decedents were 100% at fault.
Because the verdict in this case is sound based on the causes of action
that the Estates raised in their complaints, I agree with the Majority that no
appellate relief is due on the Estates’ first two appellate issues.
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