Paliometros v. Loyola

DISSENTING OPINION BY

POPOVICH, J.:

¶ 1 The majority states that “Appellants, as innkeepers, knowing that a fraternity party was going to take place where there undoubtedly would be underage drinking going on, owed to Appellee the affirmative duty to exercise reasonable care under the circumstances, and to take precautions by having some supervisory personnel physically present on the premises to monitor both the premises and the conduct occurring upon the same in order to prevent any possible injury to Appellee, as a business invitee on their premises.” Majority opinion, at 10. From this, the majority concludes that Appellants breached their duty of care under the circumstances and in their position as an innkeeper. I respectfully disagree.

¶ 2 Negligence has four elements: duty, breach of the duty, a causal connection between the breach and the resulting injury, and actual damages. T.A. v. Allen, 447 Pa.Super. 302, 669 A.2d 360 (1995). In the present case, I would find that Appellee failed to establish a causal connection between Appellants’ breach of duty and her injury.

¶ 3 In analyzing section 344 of the Restatement of Torts (Second), this Court stated that a business owed a duty to any business invitee, namely, that it would take reasonable precaution against harmful third party conduct that might be reasonably anticipated. Rabutino, Administratrix of the Estate of William Impagliazzo v. Freedom State Realty Co., Inc., et. al., 809 A.2d 933, 939 (Pa.Super.2002) (emphasis added). I believe that Appellee failed to prove that Appellants should have reasonably anticipated a sexual assault at the fraternity party based on the conduct of the partygoers. While there were underage persons consuming alcohol, their conduct, along with the persons of age, could not, in my mind, have caused Appellants to reasonably anticipate Diego Loyola’s sexual assault of Appellee. Further, the sexual assault occurred in an unoccupied room that had been rented by the fraternity. It did not occur in an area in which Appellants’ personnel would have been patrolling. These factors, I believe, distinguish it from Rabutino, in which the business could have reasonably anticipated a shooting where racial tensions were readily observable and gunshots were previously heard.

¶4 Accordingly, I do not find a causal connection between Appellants’ failure to supervise the premises during the party and the sexual assault of Appellee by Diego Loyola in a room at the motel rented by the fraternity. For this reason, I respectfully dissent.