Welc v. Porter

Decision Date19 April 1996
Citation450 Pa.Super. 112,675 A.2d 334
PartiesRobert W. WELC, Administrator of the Estate of Kerri Ann Welc, Deceased; and Robert W. Welc and Mary Ann Welc, as Individuals and Parents of Kerri Ann Welc, Deceased, Appellants, v. Christopher Ryan PORTER and Julie Porter and Danny Book McGee.
CourtPennsylvania Superior Court

William M. Radcliffe, Uniontown, for appellants.

Monica Maghrak, Pittsburgh, for McGee, appellee.

Before CIRILLO, TAMILIA and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from the final order of the trial court which sustained appellee's preliminary objections in the nature of a demurrer and dismissed him from the case. The sole issue presented for our review is whether a minor passenger owes a duty of care to a third-person who is injured as a result of the negligent conduct committed by the driver of the vehicle in which the passenger is riding. For the reasons set forth below, we affirm.

Before addressing this issue, it is necessary to briefly recount the pertinent facts giving rise to this appeal. This case has its genesis in an automobile collision which occurred on April 1, 1994. Two vehicles were involved in the accident; one was operated by Christopher Porter, the other by George Bortz, IV. Appellee, Danny McGee, was a passenger in Porter's truck. 1 Shelley Bortz and Kerri Ann Welc were passengers in Bortz' car and were severely injured in the crash. Welc's injuries were ultimately fatal.

Appellants, Robert and Mary Ann Welc, thereafter instituted wrongful death and survival actions against Christopher and Julie Porter. 2 The Welcs later amended their complaint to include separate causes of action against McGee. McGee filed preliminary objections in the nature of a demurrer. The trial court sustained the objections and dismissed the complaint against McGee.

The Welcs appealed the trial court's interlocutory order; this appeal was later discontinued. The Welcs thereafter requested that the trial court amend its order to include the express determination of finality in accordance with Pa.R.A.P., Rule 341, 42 Pa.C.S.A., so that the order could be appealed. The trial court granted the application and entered an amended order on May 15, 1995. Appellants timely appealed therefrom. 3

Appellants challenge the trial court's decision to grant the demurrer. In determining whether the objections were properly sustained:

We must accept all material facts set forth in the complaint as well as all the inferences reasonably deducible therefrom as true. The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 (1995) (citations omitted). Accord Clayton v. McCullough, 448 Pa.Super. 126, 128-129, 670 A.2d 710, 712 (1996). We will evaluate appellant's arguments and the trial court's decision with this standard in mind.

Appellants' causes of action sound in negligence. To adequately set forth a cause of action in negligence appellants must demonstrate, inter alia, that appellee owed the decedent a duty of care which is recognized by law and that he breached this duty. Alumni Association v. Sullivan, 524 Pa. 356, 360, 572 A.2d 1209, 1210-1211 (1990); Clayton v. McCullough, 448 Pa.Super. at 129, 670 A.2d at 712. With regard to the question of whether a recognized duty of care exists, appellants have not referred us to any Pennsylvania cases, nor has our own research uncovered any such authority, in which a minor passenger of a vehicle has been held liable for injuries sustained by a third-person as a result of the driver's negligent operation of the vehicle.

We are not wholly bereft of guidance in this matter, however, as there are a few appellate decisions which have considered the duties owed by adults and minors to third-persons. This court has also had the opportunity to consider the duty which a passenger owes to a third-person. A review of these cases is therefore instructive.

Our Supreme Court has held that there can be no liability on the part of an adult social host who serves alcoholic beverages to his or her adult guests even though the host may know that the guest will drive while intoxicated. Klein v. Raysinger, 504 Pa. 141, 148, 470 A.2d 507, 510-511 (1983). This holding was subsequently applied to situations involving minors. Consequently, the Supreme Court has determined that a minor does not owe a duty to another minor regarding the furnishing or consumption of alcohol. Kapres v. Heller, 536 Pa. 551, 557, 640 A.2d 888, 891 (1994). The Court has further indicated that a minor who furnishes alcohol to another minor is not liable to third-parties injured by the intoxicated minor. See Sperando v. Commonwealth, Department of Transportation, 537 Pa. 352, 352, 643 A.2d 1079, 1079 (1994) (reversing, based on Kapres v. Heller, the Commonwealth Court's decision that a minor was liable to a third-person who was injured as a result of his provision of alcohol to the minor driver). This court has also recognized that an adult passenger does not owe a duty to a third-person where the driver of the vehicle in which he is riding is intoxicated. Clayton v. McCullough, 448 Pa.Super. at 130-131, 670 A.2d at 713.

In light of the above decisions, it is clear that liability cannot be imposed against appellee based on his participation in the procurement and ingestion of alcoholic beverages with Christopher Porter. See Kapres and Sperando, supra. Moreover, it would be anomalous for this court to find that appellee, who was a minor at the time of the accident, owed a duty to appellant based on his status as a passenger in the vehicle when a similar duty has been deemed lacking on the part of an adult passenger. We thus conclude that appellee owed no duty to the decedent. Our holding is consistent with the decisions of our sister states which have generally acknowledged that absent the existence of a special relationship, joint enterprise, joint venture or a right to control the vehicle, a passenger owes no duty to protect third-persons or other passengers from the negligent acts of the driver. See, e.g., Dennison v. Klotz, 12 Conn.App. 570, 578, 532 A.2d 1311, 1317 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988); Akins by and through Akins v. Hamblin, 237 Kan. 742, 743, 745-746, 703 P.2d 771, 773-774, 776 (1985); Sanke v. Bechina, 216 Ill.App.3d 962, 963-964, 160 Ill.Dec. 258, 259, 576 N.E.2d 1212, 1213 appeal denied, 142 Ill.2d 665, 164 Ill.Dec. 928, 584 N.E.2d 140 (1991); Danos v. St. Pierre, 383 So.2d 1019, 1022 (La.App.1980), affirmed, 402 So.2d 633, 637 (La.1981); Brown v. Jones, 200 Mich.App. 212, 215-216, 503 N.W.2d 735, 736-737, appeal denied,444 Mich. 909, 512 N.W.2d 318 (1993); Olson v. Ische, 343 N.W.2d 284, 288 (Minn.1984); Lind v. Slowinski, 450 N.W.2d 353, 356-357 (Minn.App.), review denied (2/21/90); Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn.1978); Hale v. Allstate Insurance Co., 639 P.2d 203, 205 (Utah 1981); Price v. Halstead, 177 W.Va. 592, 597, 355 S.E.2d 380, 385-386 (1987).

Appellants nonetheless urge us to hold appellee liable pursuant to the concert of action theory set forth in the Restatement (Second) of Torts § 876(a) and (b) (1977). Although these provisions have been addressed by this court, see, e.g., Goldberg v. Delta Tau Delta v. Goldberg, 418 Pa.Super. 207, 215-216, 613 A.2d 1250, 1254-1255 (1992), allocatur denied, 534 Pa. 639, 626 A.2d 1158 (1993) and Jefferis v. Commonwealth, 371 Pa.Super. 12, 18-19, 537 A.2d 355, 358-359 (1988), these pronouncements are not controlling as the discussions either did not command a majority or constituted dicta. Moreover, these sections heretofore have not been expressly adopted. Clayton v. McCullough, 448 Pa.Super. at 130-131, 670 A.2d at 713; Cummins v. Firestone Tire & Rubber Co., 344 Pa.Super. 9, 22, 495 A.2d 963, 970 (1985). We need not decide whether to adopt section 876 of the Restatement because appellants have failed to set forth sufficient facts which justify the imposition of liability on this basis.

The Restatement provides, in relevant part:

§ 876 Persons Acting in Concert

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he: (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so conduct himself....

Restatement (Second) of Torts, § 876(a) and (b) (1977). Several other states have had the opportunity to consider whether to impose liability upon a minor or adult individual under section 876(b). In those jurisdictions which permitted recovery, all involved situations where the plaintiff pled or proved facts which clearly demonstrated that the passenger or defendant actively encouraged the driver to commit the tortious conduct. See, e.g., Cobb v. Indian Springs, Inc., 258 Ark. 9, 17, 522 S.W.2d 383, 387 (1975) (substantial encouragement or assistance in the driver's tortious conduct could be found where the defendant was respected as an authority figure by the minor driver and he encouraged him to demonstrate the vehicle's performance ability); Sanke v. Bechina, 216 Ill.App.3d at 964-965, 971, 160 Ill.Dec. at 260-261, 264, 576 N.E.2d at 1214-1215, 1218 (passenger's encouragement that driver ignore a stop sign and exceed the posted speed limit fell squarely within the conduct contemplated by section 876); Cooper v. Bondoni, 841 P.2d 608, 611-612 (Okl.Ct.App.), cert. denied (11/17/92) (minor passengers gave substantial assistance and encouragement to minor driver's negligent operation of his vehicle where they provided him with alcoholic beverages and urged him to pass a truck while climbing...

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