T.A. v. Allen

• Decision Date: 20 December 1995
• Citation: 669 A.2d 360,447 Pa.Super. 302
• Parties: T.A., Individually and B.A. and H.A., Minors, by their guardian Meryl Kramer v. Eugene ALLEN and Elizabeth Ann Allen, his wife, Debbie Allen. Appeal of Elizabeth Ann ALLEN.
• Court: Pennsylvania Superior Court

Page 360

669 A.2d 360

447 Pa.Super. 302

T.A., Individually and B.A. and H.A., Minors, by their guardian Meryl Kramer v. Eugene ALLEN and Elizabeth Ann Allen, his wife, Debbie Allen Appeal of Elizabeth Ann ALLEN.

Superior Court of Pennsylvania.

Argued Feb. 22, 1995.

Filed Dec. 20, 1995.

Cathie J. Fagan, Pittsburgh, for appellant.

Dennis St. J. Mulvihill, Pittsburgh, for T.A., B.A. and H.A., appellees.

Before ROWLEY, P.J., and CAVANAUGH, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, FORD ELLIOTT and SAYLOR, JJ.

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 sexual 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, 433 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...