J-A04033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANDREA SIRES, ADMINISTRATRIX OF IN THE SUPERIOR COURT OF
THE ESTATE OF JAMES E. SIRES, JR., PENNSYLVANIA
DECEASED
Appellant
v.
THE DRAWBAR & GRILLE, INC.
Appellee No. 953 WDA 2013
Appeal from the Order entered May 7, 2013
In the Court of Common Pleas of Mercer County
Civil Division at No: CV-2011-3698
BEFORE: BOWES, WECHT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 20, 2014
Appellant Andrea Sires, Administratrix of the estate and mother of
deceased James E. Sires, appeals the order of the Court of Common Pleas of
Mercer County granting Appellee The Drawbar & Grille, Inc.’s preliminary
objections. Upon review, we affirm.
The relevant factual and procedural background of the case is as
follows. On May 11, 2011, at approximately 10 p.m., James E. Sires (Sires)
and Ben Lyle Loutzenhiser (Loutzenhiser) entered The Drawback & Grille
(Drawbar) together and played pool. Later, Loutzenhiser began to act
“erratically” upon which an employee of Appellee directed him to leave the
establishment. Sires and Loutzenhiser left the premises and got in
Loutzenhiser’s truck. Within two miles of the establishment, Loutzenhiser
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lost control of the truck and travelled off the right side of the roadway. Sires
died in the accident.
Appellant filed a wrongful death and a survival action against Drawbar.
Drawbar filed preliminary objections to Appellant’s complaint, averring
Appellant failed to state a legally sufficient claim against Drawbar.
Specifically, Drawbar argued Appellant failed to plead that Drawbar served
alcohol to a visibly intoxicated Loutzenhiser.1 As such, under the
Pennsylvania Dram Shop Act, 47 P.S. § 4-497, Drawbar, a Liquor Control
Board licensee, was not liable for Appellant’s injuries. Section 4-497
provides as follows:
No licensee shall be liable to third persons on account of
damages inflicted upon them off of the licensed premises
by customers of the licensee unless the customer who
inflicts the damages was sold, furnished or given liquor or
malt or brewed beverages by the said licensee or his
agent, servant or employe[e] when the said customer was
visibly intoxicated.
47 P.S. § 4-497.
The trial court agreed with Drawbar,2 granted the preliminary
objections, but permitted Appellant to file an amended complaint. The
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1
Loutzenhiser was later added as an additional defendant. See Stipulation
of Consent to Joinder of Additional Defendant, 5/9/13, at 1.
2
In addition, in response to Appellant’s allegation that a duty to provide
proper safeguards against unruly patrons existed independently of the Dram
Shop Act (i.e., general negligence grounds), the trial court noted Appellant
provided no authority “for the proposition that a business is somehow a
(Footnote Continued Next Page)
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amended complaint again contains two causes of actions: a wrongful death
action and a survival action, and “both actions contain Count I and II with
Counts I under each of the aforesaid actions being based upon averments of
general negligence and Count II of both above actions being based on the
Dram Shop [Act].” Trial Court Opinion, 7/19/13, at 2 (footnote omitted).
The Appellant pled theories of liability in the alternative. Appellant pled
general negligence under Count I to each action that did not aver visible
intoxication, and at Count II to each action Appellant pled Dram Shop Act
liability based upon service of alcohol to Loutzenhiser while visibly
intoxicated.3 In his general negligence counts, Appellant, in sum, alleges
Drawbar is liable to Appellant for premises liability in that Drawbar’s
employee took no reasonable steps to prevent Sires from leaving the bar in
Loutzenhiser’s vehicle knowing of Loutzenhiser’s erratic actions and for not
having security in the bar to prevent Loutzenhiser’s criminal conduct.
Drawbar filed preliminary objections again, “particularly challenging the
general negligence counts in Count I of each of the two causes of action.”
Id. According to Drawbar, pursuant to section 4-497, a bar owner is not
liable for injuries inflicted by a customer to patrons off the premises, unless
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(Footnote Continued)
guarantor of its patrons’ safety on the patrons’ way back to their homes.”
Trial Court Opinion, 1/3/13, at 4.
3
Apparently, as noted by the trial court, Drawbar does not have insurance
coverage for Dram Shop Act liability.
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the bar owner provided alcohol to said customer while visibly intoxicated.
The trial court agreed with Drawbar, granted the preliminary objections
again, and struck with prejudice the general negligence counts (Count I of
the wrongful death action and Count I of the survival action) because “they
[were] barred by [Section 4-497].” Trial Court Order, 5/7/13, at 1.4 This
appeal followed.5
Appellant raises the following issue for our review:
Should an action for premises liability be dismissed at the
[p]reliminary [o]bjection stage based upon a [L]iquor [C]ode
exemption when the facts are not yet established as to whether
or not the person inflicting the harm is even a “customer” and
when there are allegations of harm occurring on the licensed
premises?
Appellant’s Brief at 5.
Our review of the issue is governed by the following standard:
When reviewing the dismissal of a complaint based upon
preliminary objections in the nature of a demurrer, we treat as
true all well-pleaded material, factual averments and all
inferences fairly deducible therefrom. Where the preliminary
objections will result in the dismissal of the action, the objections
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4
With regard to the Dram Shop Act counts (Count II of the wrongful death
and Count II of the survival action), the trial court struck with prejudice
paragraphs 29(b), 49(b), 29(c), and 49(c) because “plaintiff’s counsel
conceded at argument court that these paragraphs were not averred as
alternative grounds for recovery under the Dram Shop Act.” Trial Court
Order, 5/7/13, at 1.
5
Although the order dismissing Appellant’s general negligence counts is
interlocutory, the order comes to us as a final order from the trial court
under Pa. R.A.P. 341(c).
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may be sustained only in cases that are clear and free from
doubt. To be clear and free from doubt that dismissal is
appropriate, it must appear with certainty that the law would not
permit recovery by the plaintiff upon the facts averred. Any
doubt should be resolved by a refusal to sustain the objections.
Moreover, we review the trial court’s decision for an abuse of
discretion or an error of law.
Lovelace v. Pa. Property & Cas. Ins. Guar. Ass’n, 874 A.2d 661, 664
(Pa. Super. 2005) (citation omitted).
Appellant posits three arguments in support of the issue presented.
First, the reference in 4-497 to “damages” inflicted upon third persons off
the licensed premises must refer to “harm”, since it is only harm that can
occur on the licensed premises that can lead to damages, i.e.,
compensation. It is Appellant’s contention the harm that caused Sires’ death
was not the roadway accident, but rather Drawbar’s actions that occurred on
the licensed premises. Second, Section 4-497 does not apply, since
Loutzenhiser was not a Drawbar customer. Third, even if section 4-497 is
applicable, Drawbar may still be liable under Section 344 of the Restatement
(Second) of Torts, since “damages” were inflicted upon Sires while he was
on Drawbar’s premises. We find that we need not resolve the statutory
construction arguments over the civil immunity granted under section 4-497
to affirm the trial court granting preliminary objections to dismiss the
general negligence counts of the amended complaint. We arrive at this
conclusion because the alternative facts pled in Appellant’s general
negligence counts do not, in any event, state viable causes of action for
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premises liability even if the civil immunity from damages under 4-497 was
not applicable here.6
Section 344 of the Restatement (Second) of Torts provides:
A possessor of land who holds it open to the public for entry for
his business purposes is subject to liability to members of the
public while they are upon the land for such a purpose, for
physical harm caused by the accidental, negligent or
intentionally harmful acts of third persons and animals, and by
the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be
done, or
(b) give a warning adequate to enable the visitors to avoid
the harm, or otherwise protect them against it.
Restatement (Second) of Torts § 344 (1965) (emphasis added).
For the present purposes, we note that among the necessary criteria
for liability to attach under Section 344, are the requirements that a member
of the public be on a possessor’s land and physical harm be caused by the
acts of a third person while the member is on that land. Neither of these
elements to a cause of action under Section 344 are pled in the general
negligence claims averred by Appellant. The averments of Appellant’s
amended complaint, which we must accept as true for the present purposes,
do not plead that Sires’ physical harm occurred while on Drawbar’s
premises. The amended complaint expressly pleads that Sires’ accidental
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6
We do not hold or determine here whether any such immunity applies to
the facts of this case.
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death occurred while a passenger in Loutzenhiser’s vehicle on a public
roadway off Drawbar’s property. For this reason alone we affirm the trial
court’s order dismissing Appellant’s general negligence claims, as Appellant
cannot state a viable cause of action for negligence against Drawbar under
section 344. Accordingly, it matters not whether the civil immunity under 4-
497 applies here in affirming the trial court’s dismissal of the negligence
claims to Appellant’s amended complaint.
Appellant nonetheless, principally argues this case is similar to
Morgan v. Bucks Associates, 428 F. Supp. 546 (E.D. Pa. 1977).
According to Appellant, in Morgan “a [d]efendant was held to be liable for
negligence and failing to exercise reasonable care to protect the [p]laintiff,
who was assaulted in the parking lot outside the [d]efendant’s premises.”
Id. at 14. Appellant however, does not accurately consider the
distinguishing facts in Morgan. In Morgan, the plaintiff sued for injuries
she sustained when, after leaving work, she was attacked while walking to
her car parked nearby in a parking lot owned by the defendant. The issue in
Morgan was whether the defendant had taken reasonable steps to provide
adequate security in its parking lot. It was not disputed the defendant
owned the premises where the attack occurred. Possession of the premises,
as stated above, is essential to liability under Section 344. Here, Sires’
physical harm did not occur on Drawbar’s premises, a fact that readily
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distinguishes this case from Morgan for purposes of imposing liability under
Section 344.
Other cases cited by Appellant similarly are distinguishable from the
present matter. Both Rommel v. Schambacher, 11 A. 779 (Pa. 1887),
and Corcoran v. McNeal, 161 A.2d 367 (Pa. 1960), concerned suits where
the plaintiffs sued for injuries sustained when they were injured by other bar
patrons while on a defendant’s premises. Gray Horse Tavern v. United
States Fidelity and Guarantee Company, 5 Pa. D. & C. 3d 5 (Com. Pl.
1977), while not binding on this Court, only determined that an insurer was
obligated to provide insurance defense coverage to a plaintiff who was sued
by an injured customer for both Dram Shop Act liability and for negligence.
The allegations of negligence in Gray were sufficient to trigger the insurer’s
duty to provide a defense to plaintiff. Therefore, while the Appellant
correctly notes that the law recognizes both Dram Shop liability claims and
claims of negligence for failing to provide proper safeguards against unruly
patrons, the above cases do not assist in remedying the fatal flaws in
Appellant’s negligence claims, those being that Appellant’s physical harm by
a third person did not occur while on Drawbar’s premises.
In light of the foregoing, we conclude the trial court did not abuse its
discretion or commit an error of law in sustaining Drawback’s preliminary
objections.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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