Kerns v. Methodist Hosp.
| Decision Date | 02 May 1990 |
| Citation | 393 Pa.Super. 533,574 A.2d 1068 |
| Parties | William KERNS and Denise Kerns, Appellant, v. METHODIST HOSPITAL and California Plant Protection, Inc., Appellee. |
| Court | Pennsylvania Superior Court |
Page 1068
v.
METHODIST HOSPITAL and California Plant Protection, Inc., Appellee.
Filed May 2, 1990.
Page 1069
[393 Pa.Super. 536] Theodore C. Forrence, Jr., Philadelphia, for appellant.
Melvin R. Shuster, Philadelphia, for Methodist Hosp., appellee.
William C. McGovern, Philadelphia, for Cal. Plant Protection, appellee.
Before CIRILLO, President Judge, and KELLY and CERCONE, JJ.
KELLY, Judge:
In this case we are called upon to determine whether a hospital and a security firm may be held liable for injuries to a pizza deliveryman suffered in an armed robbery by unknown assailants on hospital property guarded by a private security firm, based upon a theory of a negligent undertaking to provide adequate security. We affirm the order granting summary judgment in favor of the hospital and the security firm.
We are also asked to determine whether the trial court abused its discretion in proceeding to the merits of the summary judgment motion when an order extending the time for discovery had been signed the day before the motion for summary judgment was filed, and specific discovery requests were pending at the time the summary judgment motion was considered and decided. We find no abuse of discretion.
I. Standard of Review
In this case we are called upon to determine the propriety of an order granting summary judgment. The standard for granting summary judgment is well settled:
A motion for summary judgment may properly be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. In passing
Page 1070
on a motion for summary judgment, the court must examine the record in [393 Pa.Super. 537] the light most favorable to the non-moving party. [However], it is clear that to survive a motion for summary judgment, the non-moving party may not rely merely upon the allegations of the contested pleadings, but must set forth specific facts by way of affidavit, or in some other way as provided by the rule, demonstrating that a genuine issue exists.Salerno v. Philadelphia Newspapers, 377 Pa.Super. 83, 88, 546 A.2d 1168, 1170-71 (1988) (collecting cases, citations omitted); see also Pa.R.C.P. 1035.
II. Facts and Procedural History
On March 18, 1985, appellants, William and Denise Kerns (the Kerns), filed a civil complaint against appellees Methodist Hospital (the Hospital) and California Plant Security (the Security Firm). The complaint contained three counts; it claimed that the Hospital's and the Security Firm's negligence in failing to adequately warn or protect William Kerns caused William Kerns to suffer a violent criminal assault by unknown third parties and injuries incident thereto, Denise Kerns suffered a loss of consortium as the result of William Kerns' injuries, and the negligence involved was so egregious as to warrant imposition of punitive damages. The factual allegations underlying the complaint may be summarized as follows.
On April 2, 1984, Mr. Kerns was employed by Giovanni's Pizza to deliver pizzas throughout South Philadelphia, including the area where the Hospital is located. Sometime prior to 7:00 p.m. his employer gave him a single pizza to deliver at the nurses' residence on the grounds of the Hospital. The drive to the Hospital took four or five minutes.
On four or five prior occasions, Mr. Kerns had delivered pizzas to the nurses' residence. The residence is located in a private area on the Hospital grounds, and there is a gate across the access road to the nurses' residence to keep out unauthorized vehicles. On each of the prior occasions, Mr. Kerns would drive to the gate and sound his horn. A [393 Pa.Super. 538] security guard would come to the gate, Mr. Kerns would state his purpose, and the gate would then be raised to permit him to drive up to the entrance of the nurses' residence and deliver his pizzas.
On April 2, 1984, no guard came to the gate when Mr. Kerns sounded his horn. Because Mr. Kerns saw no guard and decided he could not wait, he backed his car onto the street, and parked on a nearby side street. It was dusk by then. Mr. Kerns walked around the gate and to the nurses' residence in about a minute or a minute and a half. He was inside the nurses' residence about 30 seconds, where he delivered the pizza, was paid, and left.
Mr. Kerns had counted the money and put it in his pocket before leaving the nurses' residence. Mr. Kerns explained, "from making deliveries, you don't count your money on the outside or anything." (R.R. at 149a). About 25 feet from the building, Mr. Kerns was assaulted by two unknown assailants. One poked a gun in his ribs, the other stood in front of him and demanded his valuables. Mr. Kerns delivered his wallet, and was then kicked in the groin and punched as he went down to the ground. The entire assault took only "30 seconds" though "it felt like an eternity." (R.R. at 141a-151a).
Between March 18, 1985, and November 14, 1988, pleadings and counterpleadings were filed and discovery was conducted. On November 14, 1988, an order was signed extending the discovery period until February 28, 1989. The next day, however, the Hospital and the Security Firm filed for summary judgment. On December 5, 1988, the Kerns filed a subpoena on the Philadelphia Police Department for police documents pertaining to criminal assaults in the area of the Hospital for a three year period prior to April 2, 1984. On December 8, 1988, the Kerns sent a letter to the Hospital's counsel requesting production of the security log, from which excerpts had been provided previously, and all similar logs for prior years. On December 22, 1988, the Kerns filed their answer in opposition to the motion for summary
Page 1071
judgment. On January 3, 1989, the trial court [393 Pa.Super. 539] granted summary judgment to the Hospital and the Security Firm. This timely appeal follows.On appeal, the Kerns contend that the trial court abused its discretion in proceeding on the motion for summary judgment despite the prior entry of an order extending the discovery period, in light of actually outstanding discovery requests at the time summary judgment was granted. The Kerns also contend that there was sufficient evidence of a voluntary assumption of a duty by the Hospital and the Security Firm to withstand summary judgment. We find no merit in either contention.
III. 1035(e) Continuance/Outstanding Discovery
The Kerns contend that the trial court erred in proceeding to rule on the motion for summary judgment because an order extending the period for discovery had previously been entered, and two proper discovery requests remained outstanding at the time summary judgment was granted. We find no merit in the contention.
The Hospital and the Security Firm respond initially that we need not reach this issue, as the Kerns failed to file the affidavits of necessity for further discovery required to trigger consideration of a continuance pursuant to Pa.R.C.P. 1035(d) and Pa.R.C.P. 1035(e):
(d) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the signer is competent to testify to the matters stated therein. Verified or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not [393 Pa.Super. 540] so respond, summary judgment, if appropriate, shall be entered against him.
(e) Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(Emphasis added).
In this case, the Kerns responded to the motion for summary judgment by filing an answer and memorandum of law in opposition to the motion for summary judgment which asserted, among other...
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