Wilson v. PECO Energy Co.

DISSENTING OPINION BY

FITZGERALD, J.:

I respectfully dissent. To the extent Appellant contends that PECO failed its contractual duty to West Norriton Township to maintain the streetlight by providing electricity and changing the light bulbs, and that such failure resulted in Appellant’s harm, see Appellant’s Brief at 11-12, I would hold that proximate cause *236is lacking for her negligence cause of action under Section 323 of the Restatement (Second) of Torts, also known as the “Good Samaritan” rule. To the extent Appellant contends that PECO had a duty to “update and modernize” the streetlight in question because of increased traffic, see id. at 22,1 would hold that she has not identified material issues of fact regarding PECO’s knowledge of such a duty. Even assuming PECO had knowledge of such a duty, I would similarly conclude Appellant failed to identify material issues of fact regarding PECO’s failure to perform that duty. A finding of liability under Section 323, I suggest, requires PECO’s effort to “update and modernize” the streetlight.1

The record reflects that West Norriton Township made the decisions regarding the type, location, and installation of the streetlights. Ex. D. to Appellant’s Mem. of Law in Support of the Mot. for Summ. J. of Appellee; R. 47a-48a. PECO had no involvement designing the lighting system for West Norriton Township and never engaged in lighting design for any township. Id.; R. 47a-48a. Undisputed is that PECO did not decide where to install the streetlights. Id. PECO, however, installed the streetlights based on West Norriton Township’s requirements. Id. West Norri-ton Township requested the streetlight in question. Id.; R. 44a, 48a.

Further, West Norriton Township — and not PECO — decided how bright the streetlights are. Id.; R. 48a-49a. If someone from West Norriton Township contacted PECO to complain about the lighting, PECO would refer that person to the township for further action. Id.; R. 52a. Indeed, a West Norriton Township commissioner contacted PECO about installing brighter lights at a particular intersection and PECO responded by providing a cost estimate. Id.; R. 50a-51a.

“It is axiomatic that the elements of a negligence-based cause of action are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and actual loss.” Minnich v. Yost, 817 A.2d 538, 541 (Pa.Super.2003) (citing Campo v. St. Luke’s Hosp., 755 A.2d 20, 23-24 (Pa.Super.2000)).

While the existence of a duty is a question of law, whether there has been a neglect of such duty is generally for the jury. However, the issue of whether an act or a failure to act constitutes negligence may be removed from consideration by a jury and decided as a matter of law when the case is free from doubt and there is no possibility that a reasonable jury could find negligence.

Emerich v. Phila. Ctr. for Human Dev., Inc., 554 Pa. 209, 233, 720 A.2d 1032, 1044 (1998) (affirming judgment on pleadings because facts as pleaded established defendant did not breach duty).

When considering the question of duty, it is necessary to “determine whether a defendant is under any' obligation for the benefit of the particular plaintiff ... and, unless there is a duty upon the defendant in favor of the plaintiff which has been breached, there can be no cause of action based upon negligence.”

Minnich, 817 A.2d at 541 (quoting J.E.J. v. Tri-County Big Brothers/Big Sisters, Inc., 692 A.2d 582, 584 (Pa.Super.1997)).

With respect to duty:

Duty, in any given.situation, is predicated upon the relationship existing between the parties at the relevant time. Where the parties are strangers to each other, such a relationship may be in*237ferred from the general duty imposed on all persons not to place others at risk of harm through their actions. The scope of this duty is limited, however, to those risks which are reasonably foreseeable by the actor in the circumstances of the case.
Only when the question of foreseeability is undeniably clear may a court rule as a matter of law that a particular defendant did not have a duty to a particular plaintiff. Migyanko v. Thistle [th]waite, 275 Pa.Super. 500, 419 A.2d 12, 14 (1980); [see also] Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928). Moreover, the question of foreseeability is not to be confused with the question of legal or proximate causation. Even where harm to a particular plaintiff may be reasonably foreseeable from the defendant’s conduct, and that conduct is the cause-in-fact of the plaintiffs harm, the law makes a determination that, at some point along the causal chain, liability will be limited. The term “proximate cause”, or “legal cause” is applied by courts to those considerations which limit liability, even where the fact of causation can be demonstrated.... To put it simply, at a certain point, negligent conduct will be viewed as too remote from the harm arising to the plaintiff, and thus not a substantial factor in bringing about the plaintiffs harm.

Alumni Ass’n, Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 369 Pa.Super. 596, 535 A.2d 1095, 1098 (1987) [hereinafter Sullivan ] (some citations omitted). To reiterate: “a duty arises only when one engages in conduct which foreseeably creates an unreasonable risk of harm to others.” Campo, 755 A.2d at 24.

[I]f 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.

T.A. v. Allen, 447 Pa.Super. 302, 669 A.2d 360, 362 (1995) (en banc) (citing Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 8, 564 A.2d 1244, 1248 (1989)).

Upon establishing a duty, the plaintiff must first demonstrate legal causation and then cause-in-fact. See Reilly v. Tiergarten, Inc., 430 Pa.Super. 10, 633 A.2d 208, 210 (1993) (“Proximate cause is a question of law to be determined by the judge, and it must be established before the question of actual cause may be put to the jury.” (some punctuation omitted)).

It is settled in the law that except in rare situations not here involved the mere occurrence of an injury does not prove negligence and that an admittedly negligent act does not necessarily entail liability; rather even when it is established that the defendant breached some duty of care owed the plaintiff, it is incumbent on a plaintiff to establish a causal connection between defendant’s conduct and the plaintiffs injury. Stated another way, the defendant’s conduct must be shown to have been the proximate cause of plaintiffs injury. Proximate cause is a term of art denoting the point at which legal responsibility attaches for the harm to another arising out of some act of defendant, ...; and it may be established by evidence that the defendant’s negligent act or failure to act was a substantial factor in bringing *238about the plaintiffs harm. The defendant’s negligent conduct may not, however, be found to be a substantial cause where the plaintiffs injury would have been sustained even in the absence of the actor’s negligence.

Hamil v. Bashline, 481 Pa. 256, 264-65, 392 A.2d 1280, 1284 (1978) (citations omitted).

It is well established in Pennsylvania that in order to find that defendant proximately caused an injury it must be found that his allegedly wrongful conduct was a substantial factor in bringing about plaintiffs injury even though it need not be the only factor. It is equally well established that defendant’s negligent conduct is not a substantial factor in bringing about plaintiffs injury if it would have been sustained even if the actor had not been negligent.

Majors v. Brodhead Hotel, 416 Pa. 265, 271-72, 205 A.2d 873, 877 (1965) (citations omitted).

The word “substantial” is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called “philosophic sense,” which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called “philosophic sense,” yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.

Restatement (Second) of Torts § 431 cmt. a (1965). In sum, “[wjhether the analysis proceeds in terms of ‘duty’, ‘foreseeability’, or ‘proximate cause,’ ” the essential inquiry is “some method of limiting liability to those consequences which have some reasonably close connection with the defendant’s conduct and the harm which it originally threatened, and are in themselves not so remarkable and unusual as to lead one to stop short of them.” Hoffman v. Sun Pipe Line Co., 394 Pa.Super. 109, 575 A.2d 122, 126 (1990) (quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts, § 43, at 300 (5th ed.1984)).

In order for a party to have a duty, the law requires a party to have knowledge. Morena v. S. Hills Health Sys., 501 Pa. 634, 642, 462 A.2d 680, 684 (1983) (holding, “Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time, ... and necessarily requires some degree of knowledge.” (citations omitted)). In Morena, the victim was shot and paramedics transported him to the nearest hospital. Id. at 639, 462 A.2d at 683. The hospital determined that thoracic surgery was required, and because it did not have a thoracic surgeon, the victim had to be transported to another hospital. Id. at 639-40, 462 A.2d at 683. The paramedics were asked to make an inter-hospital transfer of the victim. Id. at 640, 462 A.2d at 683. Because of the shortage of paramedics — they comprised one of the four teams responsible for Pittsburgh — the policy was not to make inter-hospital transfers. Id. The paramedics requested permission for the transfer from their supervisor, who denied permission. Id. The hospital never informed the paramedics that the transfer was of “an emergency nature.” Id. A private ambulance service ultimately transported the victim, who later died. Id. at 640, 462 A.2d at 683-84. The decedent’s estate sued the paramedics and the City of Pittsburgh under Section 323; the trial court granted nonsuit, and the Superior Court affirmed. Id. at 638, 462 A.2d at 682.

The Pennsylvania Supreme Court also affirmed the nonsuit, holding that “there was no basis upon which these defendants *239could have been found negligent.” Id. at 641, 462 A.2d at 684. The Morena Court refused to hold the paramedics responsible because the record did not establish the paramedics were aware that the requested transfer was an emergency. Id. at 643, 462 A.2d at 685. “The existence of any subsequent duty [beyond initial transportation],” the Court held, “necessarily rested upon some knowledge on the part of the paramedics that the requested transfer constituted an emergency.” Id. Absent record evidence of knowledge, the paramedics could not be found to have had a duty. Id. at 644, 462 A.2d at 685.

Based on the arguments preserved by Appellant, I would hold that she has not established, as a matter of law for Section 323 liability, that PECO’s performance of its contractual obligations to provide electricity and change light bulbs was a substantial factor of the cause of her injuries. See Hamil, 481 Pa. at 265, 392 A.2d at 1284; Majors, 416 Pa. at 271-72, 205 A.2d at 877. I would similarly conclude that Appellant has not identified material issues of fact with respect to PECO’s knowledge of an expanded duty to “update and modernize,” see Appellant’s Brief at 22, the streetlight at issue. See Morena, 501 Pa. at 642, 462 A.2d at 684. Absent knowledge of that expanded duty, I would opine PECO cannot be found to have negligently performed that duty. See id. Even assuming PECO had such knowledge, I am unaware of any material issues of fact that PECO failed to modernize the instant streetlight properly. See id. Accordingly, I would hold that Appellant has not established proximate cause and the applicability of the “Good Samaritan” doctrine to PECO, and thus would affirm the trial court’s order granting summary judgment in favor of PECO.

. The certified record is missing the documents associated with the first 150 docket entries.