Alumni Ass'n, Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan

• Decision Date: 29 December 1987
• Citation: 369 Pa.Super. 596,535 A.2d 1095
• Court: Pennsylvania Superior Court
• Parties: ALUMNI ASSOCIATION, DELTA ZETA ZETA OF LAMBDA CHI ALPHA FRATERNITY v. Van Kingsley SULLIVAN and Ronald C. Unterberger v. KAPPA CHAPTER OF SIGMA CHI FRATERNITY Sigma Chi Fraternity and Bucknell University. Appeal of Ronald C. UNTERBERGER.

Page 1095

535 A.2d 1095

369 Pa.Super. 596

ALUMNI ASSOCIATION, DELTA ZETA ZETA OF LAMBDA CHI ALPHA FRATERNITY v. Van Kingsley SULLIVAN and Ronald C. Unterberger v. KAPPA CHAPTER OF SIGMA CHI FRATERNITY Sigma Chi Fraternity and Bucknell University.

Appeal of Ronald C. UNTERBERGER.

Superior Court of Pennsylvania.

Argued Sept. 23, 1987.

Filed Dec. 29, 1987.

F. Lee Shipman, Harrisburg, for appellant.

Jonathan E. Butterfield, Williamsport, for KAPPA Chapter, appellee.

Robert J. Menapace, Sunbury, for SIGMA CHI fraternity, appellee.

David R. Bahl, Williamsport, for Bucknell, appellee.

Before CAVANAUGH, BROSKY and WATKINS, JJ.

BROSKY, Judge.

This is an appeal from an order sustaining the preliminary objections, in the nature of a demurrer, of three additional defendants (herein appellees) to the joinder complaint filed by the original defendant (herein appellant), without leave to amend. Appellant now contends that the joinder complaint stated a viable cause of action as to all three appellees, and should not have been dismissed.

Upon review of the record and the briefs of counsel, we affirm the trial court's dismissal of appellees Sigma Chi Fraternity ("Sigma Chi") and Bucknell University ("Bucknell"), but reverse and reinstate the joinder complaint against appellee Kappa Chapter of Sigma Chi Fraternity ("Kappa Chapter").

This matter arises from a fire which occurred in the early morning hours of December 8, 1983, and which severely damaged the Lambda Chi Alpha fraternity house, located on the campus of appellee Bucknell University. Appellant, Ronald C. Unterberger, a then eighteen year old freshman at Bucknell, had attended two campus parties on the evening of December 7, at, respectively, the Trax Hall freshmen dormitory and the Kappa Chapter fraternity house. Appellant had consumed alcoholic beverages at both parties, despite his status as a minor, and had become visibly intoxicated. As a result, appellant and another student, Van Kingsley Sullivan, accidentally set, and were unable to put out, a fire at the nearby Lambda Chi Alpha house.

On August 16, 1985, a civil complaint was filed by the Alumni Association, Delta Zeta Zeta of Lambda Chi Alpha Fraternity, against appellant and Sullivan, claiming over four hundred thousand dollars ($400,000.00) in property damage as a result of their negligence in setting the December 8 fire. On October 18, 1985, appellant had writs of summons issued to join, as additional defendants, Kappa Chapter, Sigma Chi, and Bucknell. A joinder complaint followed on November 8, 1985. Appellant's complaint alleged that: (1) Kappa Chapter, in furnishing alcoholic beverages to appellant, had created a known foreseeable risk, in that minors are presumed incompetent to handle the effects of alcohol, and was therefore liable for the fire damage negligently caused by appellant while in an intoxicated state; (2) Sigma Chi, as owner of the Kappa Chapter house, had or should have known that alcoholic beverages were being served to minors at Kappa Chapter's fraternity parties, yet had permitted the practice to continue unabated, and was therefore liable for the fire damage caused by appellant; and (3) Bucknell, through its counselors, agents, and employees, had or should have known that alcoholic beverages were being served to minors at private dormitory parties, yet had permitted the practice to continue unabated, and was therefore liable for the fire damage caused by appellant. The trial court sustained demurrers as to all three additional defendants, and dismissed Unterberger's complaint with prejudice. This timely appeal followed.

In determining whether the factual averments of a complaint are sufficient to state a cause of action, all doubts must be resolved in favor of the sufficiency of the complaint. Slaybaugh v. Newman, 330 Pa.Super. 216, 479 A.2d 517, 519 (1984). A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Id.; see also Cianfrani v. Commonwealth, State Employees' Retirement Board, 505 Pa. 294, 479 A.2d 468, 469 (1984). If any theory of law will support the claim raised by the complaint, dismissal is improper. Slaybaugh, supra; Cianfrani, supra.

The basic elements of a cause of action founded on negligence are: (1) a duty on the part of the defendant to conform to a certain standard of conduct with respect to the plaintiff; (2) a breach of that duty by the defendant; (3) a reasonably close causal connection between the conduct of the defendant and the resulting injury to the plaintiff; and (4) actual loss or damage to the plaintiff's interests. Casey v. Geiger, 346 Pa.Super. 279, 499 A.2d 606, 612 (1985); Cummins v. Firestone Tire and Rubber Co., 344 Pa.Super. 9, 495 A.2d 963, 967 (1985); Prosser, Law of Torts, § 30 at 143 (4th Ed. 1971).

Duty, in any given situation, is predicated upon the relationship existing between the parties at the relevant time. Zanine v. Gallagher, 345 Pa.Super. 119, 497 A.2d 1332, 1334 (1985). Where the parties are strangers to each other, such a relationship may be inferred from the general duty imposed on all persons not to place others at risk of harm through their actions. Id. The scope of this duty is limited, however, to those risks which are reasonably foreseeable by the actor in the circumstances of the case. Id.

Only when the question of foreseeability is undeniably clear may a court rule as a matter of law that a particular defendant did not have a duty to a particular plaintiff. Migyanko v. Thistlewaite, 275 Pa.Super. 500, 419 A.2d 12, 14 (1980); also see Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928). Moreover, the question of foreseeability is not to be confused with the question of legal or proximate causation. Little v. York County Earned Income Tax Bureau, 333 Pa.Super. 8, 481 A.2d 1194, 1197 (1984). Even where harm to a particular plaintiff may be reasonably foreseeable from the defendant's conduct, and that conduct is the cause-in-fact of the plaintiff's harm, the law makes a determination that, at some point along the causal chain, liability will be limited. The term "proximate cause", or "legal cause" is applied by courts to those considerations which limit liability, even where the fact of causation can be demonstrated. Because of convenience, public policy, or a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point, as no longer a "proximate" or "legal" consequence naturally flowing from the wrong-doer's misconduct. See Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 516 A.2d 672, 676 (1986); see also Palsgraf, supra, 162 N.E. at p. 103. To put it simply, at a certain point, negligent conduct will be viewed as too remote from the harm arising to the plaintiff, and thus not a substantial factor in bringing about the plaintiff's harm.

Clearly, reasonable minds will often differ as to where to draw a cut-off line. Thus, whether in a particular case the plaintiff has demonstrated, by a preponderance of the evidence, that the defendant's negligent conduct was a substantial factor in bringing about the plaintiff's harm, is normally a question of fact reserved for the jury, and should only be removed from the jury's consideration where it is clear, as a matter of law, that reasonable minds could not differ on the issue. Little, supra, 481 A.2d at p. 1198.

Applying these basic principles to the matter sub judice, the trial court held that: (1) Sigma Chi and Bucknell could not be held liable in the absence of allegations that they had acted as social hosts, in actually furnishing or serving alcoholic beverages to minors; and (2) Kappa Chapter, while alleged to have acted as a social host, had no duty to protect the neighboring Lambda Chi Alpha house from an unforeseeable risk, i.e. the negligent setting of a fire by an intoxicated minor, and, even in the presence of a duty, had not proximately caused, by furnishing alcohol to Unterberger, the setting of the fire. We are in accord with the trial court's resolution in (1), but reject its analysis in (2).

As all parties have agreed, the controlling case in this matter is the Supreme Court's decision in Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983). Prior to the Congini decision, only licensed dispensers of alcohol could be civilly liable for furnishing alcoholic beverages to minors. See 47 P.S. § 4-493(1). In Congini, the Supreme Court extended the scope of liability to include social hosts, who knowingly serve or furnish alcoholic beverages to a minor. As minors are deemed legally incompetent to handle the effects of alcohol, ¹ a social host is now negligent per se when knowingly furnishing or serving alcoholic beverages to a minor, and may be held civilly liable for harm proximately resulting from the minor's intoxication. Congini, supra, 470 A.2d at pp. 517, 518.

Sigma Chi and Bucknell contend, and the trial court agreed, that Congini articulated a narrow exception only to the general rule against social host liability, and only intended to extend liability to those persons who knowingly serve or furnish alcohol to minors, thereby breaching the general duty imposed on all persons not to place others at a foreseeable risk of harm. In support of their position, both have cited McCrery v. Scioli, 336 Pa.Super. 455, 485 A.2d 1170 (1984), a post-Congini decision in which our Court refused to extend vicarious civil liability, under the Liquor Code, to a landlord of a corporate liquor licensee. While appellees concede that McCrery is arguably distinguishable in that liability was predicated upon a violation of the Liquor Code, as opposed to the Crimes Code, both maintain that the two decisions, read in conjunction, indicate that liability under either Code was intended to be predicated upon the actual furnishing of alcohol by the party sought to be...