Moranko, F. v. Downs Racing ( 2015 )

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2015 PA Super 137FAYE M. MORANKO, ADMIN. OF THE IN THE SUPERIOR COURT OF
ESTATE OF RICHARD L. MORANKO, PENNSYLVANIA
DECEASED
Appellant
v.
DOWNS RACING, LP, D/B/A MOHEGAN
SUN AT POCONO DOWNS
Appellee No. 192 MDA 2013
Appeal from the Order January 4, 2013
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 2011-CV-10312
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
PANELLA, J., DONOHUE, J., SHOGAN, J., MUNDY, J., OLSON, J.,
and OTT, J.
DISSENTING OPINION BY MUNDY, J.: FILED JUNE 10, 2015
I respectfully dissent. I agree with the esteemed Majority that the
issue in this case is whether Appellee (Mohegan Sun) owed a duty of care to
Richard Moranko (Decedent). Majority Slip Opinion at 1-2. However, I
disagree that the trial court properly concluded, as a matter of law for the
purpose of summary judgment, that no duty was owed under the facts of
this case. I do not believe we need to reach the issue of first impression
articulated by the Majority, i.e., what inherent duty, if any, a valet service
owes to a visibly intoxicated patron when returning that person’s vehicle.
Rather, under the particular facts of this case, construed in a light most
favorable to Appellant, Faye Moranko, the non-moving party, as our
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standard of review requires, I conclude Mohegan Sun assumed such a duty
as part of its internal organizational and operational policies. See E.R.
Linde Constr. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013). I
reach my conclusion based on this Commonwealth’s adoption of Section 323
of the Restatement (Second) of Torts (1965) (recognizing the existence of a
duty to others for voluntarily assumed undertakings).
I believe the Majority’s determination that Moranko waived her
argument relative to Mohegan Sun’s duty on the theory described in Section
323 of the Restatement is unwarranted. In her answer and brief in
opposition to Mohegan Sun’s motion for summary judgment, Moranko raised
and argued the substance of this claim. In her response to the motion,
Moranko stated the following. “Given the facts and circumstances of this
case, which include but are not limited to, the Mohegan Sun Casino having
its own policies and procedures with regard to visibly intoxicated guests, a
duty exists in this matter and the same was breached.” Plaintiff’s Response
to Defendant’s Motion for Summary Judgment, 8/16/12, at 2, ¶ 10.
Furthermore, in her brief in opposition to the motion, Moranko related facts
from deposition testimony supporting the existence of a duty based on this
theory. Brief in Support of Plaintiff’s Response to Defendant’s Motion for
Summary Judgment, 8/16/12, at 6-12. Moranko concluded, “[d]espite all of
the aforementioned polices [sic] and procedures regarding visible
intoxication, the employees of the Mohegan Sun on the night in question
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failed to implement any of them ….” Brief in Support of Plaintiff’s Response
to Defendant’s Motion for Summary Judgment, 8/16/12, at 6-12.
When advancing this argument on appeal before the prior panel of this
Court, Moranko cited, albeit mistakenly, to Section 324A of the Restatement
(Second) of Torts, which, as the Majority notes, pertains to the duty of care
owed by a principal to third persons, resulting from the principal’s voluntarily
undertaken policy or action. Majority Slip Opinion at 5-6. The substance of
Moranko’s argument, however, was clearly relevant to an application of
Section 323. See Moranko’s Brief at 15-17.
Thus, the essence of Moranko’s argument, that Mohegan Sun owed
Decedent a duty of care based on its own internal policies, has been
consistently presented to both the trial court and this Court with full
opportunity for Mohegan Sun to respond. Our Supreme Court has held that
a mere erroneously labeled claim will not require waiver on appeal.
However, [mistitling] does not change the fact that
[Appellant’s] theory, under whatever name one
might assign to it, was one it never abandoned nor
from which it ever retreated. As a result, all parties
were aware of the claim and had an opportunity to
litigate it. Therefore, [Appellant] has preserved its
right to have its claim … reviewed on appeal. To
hold otherwise would be to elevate form over
substance.
Thatcher's Drug Store of W. Goshen, Inc. v. Consol. Supermarkets,
Inc., 636 A.2d 156, 159 n.5 (Pa. 1994). For these reasons, I do not
consider the argument waived and will proceed to address its merits.
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The Majority states, “[t]his internal policy of Mohegan Sun is aimed
not at preventing their valets from withholding an automobile from a visibly
intoxicated patron, but from keeping visibly intoxicated patrons from
gambling on the casino gaming floor.” Majority Slip Opinion at 7. From this,
the Majority concludes the policies cannot create a duty on Mohegan Sun
toward Decedent. Id. I disagree that the policies at Mohegan Sun were so
circumscribed.
During discovery, Appellant deposed Dennis Driscoll, the Director of
Security and Transportation for Mohegan Sun. Brief in Opposition to Motion
for Summary Judgment, 8/16/12, Exhibit I, N.T., 1/9/12. Appellant
questioned Driscoll about the training provided and policies pursued by
Mohegan Sun respecting intoxicated patrons. Id. at 15-30.
[Attorney for Appellant]. Do [Mohegan
Sun security guards] receive training as to spotting
an individual who is visibly intoxicated?
[Dennis Driscoll]. Yes.
Q. What kind of training do they receive and
who [sic] would they receive that from?
A. Well, they receive it from both, you
know, internally with a supervisor but also they
attend a class. It’s called a RAMP class, Responsible
Alcohol Management Program.
Q. So all of your security guards attend the
RAMP class?
A. To a degree. We maintained an over 50
percent staffing level that is trained in it. I would
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say it’s probably — it’s maintained probably about a
70 to 80 percent.
Q. And why is it important for security
guards to have an understanding of the RAMP
program and to spot patrons who are visibly
intoxicated?
A. The main responsibility -- the main
reason for that is because the gaming -- gaming
requires that w[e] deny individuals from entering or
remaining present on the gaming floor if they are
intoxicated. It’s one of the main responsibilities so
we have to remove the individual from the gaming
floor.
Id. at 15-16.
Driscoll further testified about the procedures security personnel are to
follow upon noticing an intoxicated patron and the purpose behind those
procedures. Driscoll testified specifically as follows.
[Attorney for Appellant]. And what are
they to do with a guest who is visibly intoxicated?
[Dennis Driscoll]. Well, the first thing
that they do is they will contact Security dispatch --
that’s the command center -- to report it, contact a
supervisor and also contact surveillance.
And at that point the officer, we make an
attempt to get the individual off the gaming floor,
wait for a supervisor to arrive and he will confirm
whether the individual appears to be intoxicated. At
that time --
…
And at that point we explain to the individual
that we feel that they are intoxicated and that we
would no longer allow them to the gaming floor and
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actually the house policy is that we try to get
the individual home safely.
Q. So is it fair to say that it doesn’t stop at
just telling them they can’t gamble anymore?
A. Oh, no.
Id. at 17-18 (emphasis added).
Driscoll testified that security personnel endeavor to dissuade
intoxicated patrons from driving, attempt to secure alternate transportation,
and, if unsuccessful, alert police. Id. at 18, 22, 27. Driscoll testified that
most instances are handled by security personnel before a patron proceeds
to the valet service. However, he also testified that the valet service
personnel are instructed to watch for signs of intoxication and report the
same to security. Id. at 29-30.
Q. When you say stall giving them their car,
is it fair to say that you have the -- within the valet
system you have the power to stall because you’re
ultimately bringing the car back; right?
A. That’s correct.
…
Q. Now, we have been talking about signs
of visible intoxication. What is your understanding
both in what you’ve been instructed and what you
personally instruct on for signs of visible
intoxication?
A. The basic signs are somebody who
staggers in their walk or somebody who slurs in their
speech.
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Q. And is it your understanding that the
valet runners and the hosts at the guest kiosk center
would be instructed on that?
A. They are.
Q. And why is that important for them to be
instructed on that?
A. Well, simply because we don’t want
someone to get in their car that seems to be
intoxicated.
Id. at 23-24.
In addition to the deposition of Driscoll, Nicholas G. Keeler, a valet
employed by Mohegan Sun, was deposed. Brief in Opposition to Motion for
Summary Judgment, 8/16/12, Exhibit J, N.T., 5/9/12. In his testimony,
Keeler related that he was trained to identify indications of intoxication and
to report any encounters to a supervisor. Id. at 8-10.
Q. At any point in time when you’re being
trained by the valet that you’re kind of shadowing
there, did they ever discuss with you what to do if
you encounter a visibly intoxicated patron trying to
get their vehicle?
A. Yes. We are supposed to inform our
supervisor via radio.
Q. Does that instruction that you just told
me, does that come from the valet who is training
you?
A. No.
Q. Who does that instruction come from?
A. That’s basically from Tecio [Baldoni, a
supervisor,] himself. If you see somebody that’s
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intoxicated or any kind of disturbances, you know, in
your surroundings, let one of us know.
Q. And that’s something that would have
been told to you in your initial meeting with Tecio?
A. Yes.
Q. After you were hired?
A. Yes.
Q. What types of things did Tecio tell you to
look for in terms of someone who is visibly
intoxicated?
A. Stumbling, slurred speech — what’s the
word I'm looking for — disoriented, you know.
Q. And can that be someone who is actually
getting their vehicle where you’re the runner and
you’re about to give the vehicle to them and you see
those signs?
A. Yeah.
Q. And your duty, then, is to call the
supervisor?
A. First of all, we would ask them, Are you
okay to drive? Do you want to come in for a cup of
coffee? We can give you a ride home, call a cab.
If they argue, there’s nothing we can do. You
know, if it’s that bad where I – they’re visibly
intoxicated, I would call Tecio.
Q. You would call Tecio?
A. Tecio or another supervisor on duty.
Q. Would you call that supervisor before
letting the person get into the vehicle?
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A. Yes. If they were visibly intoxicated,
yes.
Id. (italics in original).
Based on the foregoing, I conclude that the internal policy of Mohegan
Sun was not limited to keeping intoxicated patrons from the gambling floor.
Rather, the policy was broader and encompassed its admitted goal to protect
intoxicated patrons from driving. To that end, Mohegan Sun employees,
including but not limited to valets, were trained and instructed, inter alia, to
look for indications of intoxication among patrons, advise intoxicated patrons
that alternative transportation could be arranged, and if unsuccessful in
persuasion, notify the appropriate police department. Thus, Mohegan Sun
voluntarily assumed to render security services designed to protect patrons
from the dangers of driving while intoxicated.
Pennsylvania, by adopting Section 323 of the Restatement (Second) of
Torts, recognizes that a duty may be found in a party who voluntarily
assumes an undertaking. Unglo v. Zubik, 29 A.3d 810, 813 (Pa. Super.
2011). Section 323 specifies as follows.
§ 323 Negligent Performance of Undertaking to
Render Services
One who undertakes, gratuitously or for
consideration, to render services to another which he
should recognize as necessary for the protection of
the other’s person or things, is subject to liability to
the other for physical harm resulting from his failure
to exercise reasonable care to perform his
undertaking, if
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(a) his failure to exercise such care increases
the risk of such harm, or
(b) the harm is suffered because of the other’s
reliance upon the undertaking.
RESTATMENT (SECOND) OF TORTS (1965) § 323. A plaintiff need not satisfy both
Subsections (a) and (b). Establishing either will suffice. Feld v. Merriam,
485 A.2d 742, 746 n.4 (Pa. 1984).
It is made clear at the outset of [] section
[323] that the duty to exercise care arises when ‘one
… undertakes, gratuitously or for consideration to
render services to another which he should recognize
as necessary for the protection of the other’s person
or things …’. The language of the subsections clearly
reveals they were intended not to apply to scope of
duty but to causal connection between the physical
harm and defendant’s failure to exercise reasonable
care. Subsections (a) and (b) permit that causal
connection to be proved by evidence that
defendant’s failure increased the risk of such harm
as was suffered by plaintiff or by evidence that the
harm was suffered because of reliance on the
defendant’s undertaking.
Hamil v. Bashline, 307 A.2d 57, 61 (Pa. Super. 1973) (Bashline I).1
We agree with the view of the Superior Court
majority expressed in Bashline I that the effect of
§ 323(a) is to relax the degree of certitude normally
required of plaintiff’s evidence in order to make a
case for the jury as to whether a defendant may be
held liable for the plaintiff’s injuries: Once a plaintiff
has introduced evidence that a defendant’s negligent
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1
Bashline I was overruled on other grounds by this Court in a subsequent
appeal at Hamil v. Bashline, 364 A.2d 1366 (Pa. Super. 1976) (Bashline
II). Our Supreme Court in turn reversed Bashline II while approving the
analysis of the Bashline I Court relative to its interpretation of Section
323(a). Hamil v. Bashline, 392 A.2d 1280, 1286 (Pa. 1978).
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act or omission increased the risk of harm to a
person in plaintiff’s position, and that the harm was
in fact sustained, it becomes a question for the jury
as to whether or not that increased risk was a
substantial factor in producing the harm.
Hamil v. Bashline, 392 A.2d 1280, 1286 (Pa. 1978).
“…Thus where it appears How an accident happened and also that the
victim Might have saved himself by taking advantage of a precaution which it
has been shown defendant negligently failed to afford, courts have generally
let a jury find whether the precaution would in fact have saved the victim.”
Id. at 1287, quoting F. Harper and F. James, The Law of Torts, Vol. 2,
§ 20.2, at 1113 (1956) (emphasis in original).
Of specific relevance to the facts in this case, our Supreme Court has
recognized that voluntarily providing a program of security may create a
duty under Section 323. Id. at 746 (holding that a landlord who voluntarily
established a security program for an apartment complex could create a
duty of care to tenants for the proper conduct of that program under Section
323, even though the landlord was not otherwise contractually bound to do
so under the lease with tenants).
For the foregoing reasons, I would reverse the trial court’s January 4,
2013 order granting summary judgment to Mohegan Sun. I express no
opinion relative to the issue of first impression addressed by the Majority,
concerning the duty of valet services in general to intoxicated patrons, as I
deem the issue moot under the particular facts of this case.
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PJE Bender and Judge Donohue join this Dissenting Opinion.
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