Before the court are plaintiff’s preliminary objections to counterclaim of defendant Sankovich. The issue dispositive of this matter is whether the counterclaim of the owner of a dune buggy, alleging the passenger of a dune buggy was involved in a common enterprise with the driver, sets forth a cause of action against the passenger for damages to the dune buggy pursuant to section 876 of the Restatement (Second) of Torts.
Plaintiff McConnell filed a complaint alleging causes of action in negligence against defendants Bara and Sankovich. The complaint alleged that plaintiff was injured on June 30, 2001, when the dune buggy made by defendant Sankovich, in which plaintiff was a passenger, was driven off the road by defendant Bara and struck a utility pole.
Defendant Sankovich filed a counterclaim alleging that plaintiff, a passenger in the dune buggy, and defendant Bara, the driver of the dune buggy, were engaged in a
The Restatement (Second) of Torts §876 sets forth the basis to proceed with a claim of common enterprise. Section 876 is as follows:
“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, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.” Restatement (Second) of Torts §876 (1977).
The Pennsylvania appellate courts have not expressly adopted section 876 of the Restatement. However, at least three appellate cases have addressed whether a cause of action pursuant to section 876 was stated, with the decision either being without a majority, or being dicta as to the issue of adoption, or finding no cause of action stated without deciding the issue of adoption. See Goldberg v. Delta Tau Delta v. Goldberg, 418 Pa. Super. 207, 215-16, 613 A.2d 1250, 1254-55 (1992), allocatur denied, 534 Pa. 639, 626 A.2d 1158 (1993), and Jefferis v. Com
Those jurisdictions which have permitted a cause of action under section 876(b) of the Restatement did so where the plaintiff pled or proved facts which clearly demonstrated that the passenger actively encouraged the driver to commit the tortious conduct. Welc v. Porter, 450 Pa. Super. 112, 120, 675 A.2d 334, 338 (1996). 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 962, 964-65, 971, 576 N.E.2d 1212, 1214-15, 1218 (1991) (passenger’s encouragement that driver ignore a stop sign and exceed the posted speed limit fell squarely within the conduct contemplated by section 876); Price v. Halstead, 177 W. Va. 592, 600, 355 S.E.2d 380, 389 (1987) (passenger’s conduct substantially assisted or encouraged the driver’s continued use of alcohol and drugs by providing these substances to him while he drove the vehicle). However, liability has not been imposed in those jurisdictions pursuant to section 876(b) of the Restatement (Second) of Torts where it was established that the passenger did nothing to substantially assist or encourage the driver in his voluntary consumption of alcohol and operation of the ve-
The Welc court went on to state that, according to the language of 876(b), as well as the authorities which have
In the case sub judice, the counterclaim does not aver that the passenger engaged in any conduct that substantially assisted or encouraged the driver to consume alcohol and operate the dime buggy in a negligent manner. Therefore, a claim has not been adequately presented which would permit recovery pursuant to section 876(b).
It is also apparent that a claim pursuant to 876(a) and/ or (c) has not been presented. In order to establish a claim under section 876(a) of the Restatement it must be shown that the driver and passenger acted in concert, i.e., that they acted in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. Id. Here, the counterclaim alleges that both parties voluntarily drank alcohol and that the driver operated the dune buggy in a negligent manner. These facts, if proven, are insufficient to allow the inference or finding that the driver and passenger acted in concert, or that they acted in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result in the doing of a tortious act.
Further, in regard to section 876(c), the counterclaim does not allege facts from which it could be inferred that Mr. McConnell provided substantial assistance to the
Defendant Sankovich has failed to specifically allege in what manner plaintiff acted in concert with, or provided substantial assistance or encouragement to, defendant Bara in his alleged negligent operation of the dune buggy or any other facts which could invoke any subsection of section 876 of the Restatement. However, since the court cannot at this juncture determine that it is impossible for defendant to allege a cause of action, the court will provide such defendant an opportunity to amend the counterclaim, if he can do so, to allege a cause of action pursuant to section 876 of the Restatement.
ORDER
And now, March 22,2005, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the counterclaim of defendant Jared Sankovich against the plaintiff, Russell McConnell, is dismissed and the preliminary objections of plaintiff to such counterclaim are granted. However, defendant Jared Sankovich shall have 20 days from the date this order is docketed to file an amended counterclaim if defendant is able to allege facts sufficient to state a cause of action in accordance with the foregoing opinion.