Jamison v. City of Philadelphia ( 1986 )

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent from the majority’s decision to affirm the demurrer. The majority correctly stated that the demurrer can only be sustained if the law says with certainty that no recovery is possible and if there are any doubts, they should be resolved in favor of refusing it. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). That is precisely what must be done here. The law does not clearly preclude recovery in this situation and the demurrer should therefore have been refused.

My decision is based upon the Supreme Court opinion in Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A.2d 771 (1961). The Anderson Court extensively quoted from the Restatement, Torts (1934) concerning the liability of one as the result of some other’s actions. The key element, however, is forseeability. The Court then went on to hold that it is foreseeable to a parking garage owner that a car in its charge could be stolen, resulting in injury to an innocent person.

Finally, the question of proximate cause of an accident is almost always one of fact for the jury As stated in Nelson v. Duquesne L. Co., supra., [338 Pa. 37] at pp. 54, 55 [12 A.2d 299]: “In section 453 of Pennsylvania Annotations to the Restatement of Torts, the following appears “It is not uncommon to have a situation where there may be a reasonable difference of opinion as to whether the actor’s conduct was a substantial factor in bringing about the harm, and it frequently occurs that where intervening forces have come into operation there may be a reasonable difference of opinion as to whether they were extraordinary or normal. If there is room for such a reasonable difference of opinion, the question of legal cause is for the determination of the jury (citing 14 Pennsylvanlia cases.)”

Anderson, supra, 404 Pa. at 391, 171 A.2d at 775.

The law, then, does not allow for a sustaining of a demurrer in this case, but rather supports the right of a jury to determine the cause and ensuing liability.