Charlie, A. v. Erie Insurance Exchange

J.A31043/13
2014 PA Super 188ALBERT CHARLIE D/B/A : IN THE SUPERIOR COURT OF
RESTAURANT & PUB AND ZACHARY : PENNSYLVANIA
NEIDERT, :
:
v. :
:
ERIE INSURANCE EXCHANGE A/S/O :
JEFFREY DORN AND ROCHELLE DORN :
D/B/A EGYPT LAUNDROMAT, :
:
Appellant : No. 1807 EDA 2013
Appeal from the Order Entered May 30, 2013
In the Court of Common Pleas of Lehigh County
Civil Division No(s).: 2011-C-3496
BEFORE: BENDER, P.J., LAZARUS, and FITZGERALD,* JJ.
OPINION BY FITZGERALD, J.: FILED AUGUST 29, 2014
Appellant, Erie Insurance Exchange, as subrogee of Jeffrey Dorn and
Rochelle Dorn, doing business as Egypt Laundromat, appeals from the order
entered in the Lehigh County Court of Common Pleas granting summary
judgment in favor of Appellees, Albert Charlie, doing busin
Restaurant & Pub, and Zachary Neidert. Appellant contends the trial court
should have held that Appellees had an affirmative duty to prevent greasy
hold that Appellant has not met its burden for imposing a duty upon all
*
Former Justice specially assigned to the Superior Court.
J. A31043/13
laundromat customers to prevent laundered rags from spontaneously
combusting. Accordingly, we affirm.
We state the facts as set forth by the trial court:
This case is a property damage subrogation action
arising out of a fire that occurred on April 4, 2011, at the
Egypt Laundromat located at 4755 Main Street, Egypt,
business located at 4505 Main Street, Egypt, Pennsylvania.
During all relevant times, Zachery Neidert (Neidert) was
working in the course and scope of his employment as a
chicken wings, cheesesteaks, hamburgers, chicken
sandwiches, salads, clams, some entrees, french fries,
chicken fingers and jalapeno poppers. The food is
burners, a flat top grill and a deep fryer filled with oil used
to cook the french fries, chicken fingers and jalapeno
poppers.
down, clean and absorb excess food, debris, residue, dirt
and oils from areas including the bar top, stools, tables,
employees would use their common sense to determine
when a bar rag was ready to be cleaned, and the rag
would be put into some type of laundry bag. Every one to
two weeks, the dirty bar rags were taken to Egypt
employee of
2011. Neidert had noticed on prior occasions at Egypt
Laundromat that the rags did not really get cleaned after
being washed, that the washing machine did not get all the
stuff out of the rags. Neidert began using three washers
instead of two in an attempt to have the washing machines
clean the rags better.
On April 4, 2011, at 6:51 p.m., Neidert arrived at Egypt
gs into three
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washing machines and left. At approximately 9:49 p.m.,
Neidert returned to Egypt Laundromat and removed the
bar rags from the three washing machines. Neidert
testified that the bar rags were wet and kind of balled
together; he did not pay attention to whether or not they
looked clean. Neidert put all three loads of bar rags into a
single dryer, inserted nine quarters for a 63 minute drying
cycle, started the dryer, and then left the Laundromat.
The dryer stopped spinning at 10:50 p.m. At 12:25 a.m.,
the bar rags began to smolder. At 12:45 a.m., an
unidentified laundromat patron opened the door to the
subject dryer. Neidert returned to the laundromat at
12:49 a.m., observed flames inside the dryer and
unsuccessfully attempted to extinguish the fire. At
approximately 12:58 a.m., the Whitehall Volunteer Fire
Department personnel arrived at the laundromat and
extinguished the fire.
Trial Ct. Op., 5/20/13, at 2-3.
We also reproduce the following exchange from the deposition of Mr.
Neidert:
phenomenon where laundry can catch on fire if there is too
much grease or sediment within the laundry itself?
A. Like spontaneous combustion?
Q. Yes.
heard of spontaneous combustion where something can
just light on fire.
* * *
Q. Have you ever heard of that phenomenon where if there
is vegetable oil or something left within the linen, that it
can cause fire?
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asy rags causing fires in, like,
thought that was motor oil or gasoline and stuff like that?
party disputes that the rags at issue were used to clean up nicotine, spilled
drinks, and incidental grease from spilled food. See -8;
-4. We acknowledge, however, that the parties dispute
or nicotine and whether one
of the parties used laundry detergent or a degreasing solution in the
washers.1
On November 3, 2011, Appellant filed a complaint raising two counts
of negligence against Appellees. Appellees moved for summary judgment on
the basis that because spontaneous combustion by its very nature is not
typically viewed as a reasonably foreseeable risk, the law did not impose an
affirmative duty to prevent spontaneous combustion. Accordingly, Appellees
asserted they could not be held negligent as a matter of law.
1
We note
See, e.g.,
-
however, state that the rags were used to wipe up grease from spilled food,
see, e.g., id.view the record in the light most favorable to it. See Gutteridge v. A.P.
Green Servs., Inc., 804 A.2d 643, 651 (Pa. Super. 2002) (citations
omitted).
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J. A31043/13
judgment.2 The trial court applied the five factors set forth in Althaus ex
rel. Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000), for
establishing the existence of a duty. The court reasoned that Appellees were
business invitees, laundering bar rags had social value, spontaneous
combustion of washed rags left in a dryer was not a foreseeable risk, and
set forth below, were
unfeasible. Trial Ct. Op. at 6-10. Appellant timely appealed and the court
did not order Appellant to comply with Pa.R.A.P. 1925(b).
Appellant raises the following questions:
Did the trial court commit reversible error when it decided
as a matter of law that [Appellees], a bar owner and its
employee, did not owe a duty of ordinary care to Egypt
causing a fire in the laundromat?
Did the trial court commit reversible error in the manner in
which it analyzed the factors in Althaus [ex rel. Althaus]
v. Cohen, 756 A.2d 11[6]6, 11[69] (Pa. 2000) by
concluding, among other things, that the ability to clean
bar rags in a public laundromat without regard to the risk
of spontaneous combustion is of extreme social importance
and that the minimal burden of imposing a duty on a
commercial establishment to educate itself regarding the
risks of laundering its own bar rags outweighs the
important public interest in preventing fires?
Did the trial court commit reversible error when it weighed
conflicting evidence and made credibility determinations in
2
The order, which was dated and mailed on May 20, 2013, was docketed on
May 21, 2013.
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J. A31043/13
favor of . . . Appellees, the moving party, when deciding
We summarize Appellan
as they are interrelated. Appellant states the trial court erred by not
recognizing that the relationship between Egypt Laundromat and Appellees
was a bailment for mutual benefit.3 Appellant opines that Appellees, as
4
Id. at 19.
licensee/licensor, citing Garcia v. Halsett, 82 Cal. Rptr. 420 (Cal. Ct. App.
1970). By extension, Appellant suggests, the court misapplied the five-
factor Althaus test for identifying the existence of a duty. See
Brief at 21-
parties [by the trial court] would have compelled finding the existence of a
Althaus test, the trial court gave
spontaneous combustion is a reasonably foreseeable risk and imposing a
legal
3
relationship must be legally defined, e.g., bailment or licensee. That
supposition would be incorrect. See Lindstrom v. City of Corry, 563 Pa.
to driver fleeing said officer).
4
As explained below, Appellant misapprehends that it is a bailor.
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spontaneous combustion when laundering rags would result in minimal
public policy consequences. Id. at 33. We hold Appellant is due no relief.
The standard and scope of review for summary judgment is well-
established:
Pennsylvania law provides that summary judgment may
be granted only in those cases in which the record clearly
shows that no genuine issues of material fact exist and
that the moving party is entitled to judgment as a matter
of law. The moving party has the burden of proving that
no genuine issues of material fact exist. In determining
whether to grant summary judgment, the trial court must
view the record in the light most favorable to the non-
moving party and must resolve all doubts as to the
existence of a genuine issue of material fact against the
moving party. Thus, summary judgment is proper only
when the uncontr[o]verted allegations in the pleadings,
depositions, answers to interrogatories, admissions of
record, and submitted affidavits demonstrate that no
genuine issue of material fact exists, and that the moving
party is entitled to judgment as a matter of law. In sum,
only when the facts are so clear that reasonable minds
cannot differ, may a trial court properly enter summary
judgment. . . . With regard to questions of law, an
Court will reverse a grant of summary judgment only if the
trial court has committed an error of law or abused its
discretion.
Gutteridge
whether to impose affirmative common-law duties as a predicate to civil
Seebold v.
Prison Health Servs., Inc., 618 Pa. 632, 650, 57 A.3d 1232, 1243 (2012).
Brusis v. Henkels, 376 Pa. 226, 230, 102 A.2d 146, 148
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wrongdoer could have anticipated and foreseen the likelihood of harm to the
Id.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
Minnich v. Yost, 817 A.2d 538, 541
(Pa. Super. 2003) (quoting , 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
person failed to act T.A. v. Allen, 447 Pa. Super. 302, 307,
669 A.2d 360, 362 (1995) (en banc) (quoting Wenrick v. Schloemann-
Siemag Aktiengesellschaft, 523 Pa. 1, 8, 564 A.2d 1244, 1248 (1989)).
only when one engages in conduct which foreseeably
creates an unreasonable Campo, 755 A.2d at 24(emphases added). In Althaus, our Supreme Court set forth a non-
exclusive five-factor test for determining the existence of a duty, i.e.,
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whether, as a matter of law, a defendant is under any obligation for the
benefit of a plaintiff:
In determining the existence of a duty of care, it
must be remembered that the concept of duty
those considerations of policy which led the law
to say that the particular plaintiff is entitled to
give it any greater mystique would unduly
hamper our system of jurisprudence in adjusting
to the changing times. The late Dean Prosser
expressed this view as follows:
These are shifting sands, and no fit foundation.
There is a duty if the court says there is a duty;
the law, like the Constitution, is what we make
it. Duty is only a word with which we state our
conclusion that there is or is not to be liability; it
necessarily begs the essential question. When
we find a duty, breach and damage, everything
has been said. The word serves a useful
purpose in directing attention to the obligation
to be imposed upon the defendant, rather than
the causal sequence of events; beyond that it
serves none. In the decision whether or not
there is a duty, many factors interplay: The
hand of history, our ideas of morals and justice,
the convenience of administration of the rule,
and our social ideas as to where the loss should
fall. In the end the court will decide whether
there is a duty on the basis of the mores of the
that we endeavor to make a rule in each case
that will be practical and in keeping with the
general understanding of m
Thus, the legal concept of duty of care is necessarily
rooted in often amorphous public policy considerations,
which may include our perception of history, morals,
justice and society. The determination of whether a duty
exists in a particular case involves the weighing of several
discrete factors which include: (1) the relationship
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conduct; (3) the nature of the risk imposed and
foreseeability of the harm incurred; (4) the consequences
of imposing a duty upon the actor; and (5) the overall
public interest in the proposed solution. . . . See also
Bird v. W.C.W.
determining whether to impose a duty, this Court must
consider the risk, foreseeability, and likelihood of injury
the magnitude of the burden of guarding against the injury
and the consequences of placing that burden on the
Althaus, 562 Pa. at 552-53, 756 A.2d at 1168-69 (some citations omitted).
Courts are not required to weigh each factor equally. Id. at 553, 756 A.2d
at 1169.
t
Seebold, 618 Pa. at 653 & n.19, 57 A.3d at
1245 & n.19 (citation omitted). The Seebold Court emphasized that in
ascertaining the existence of a duty,
5
judicial decision- Id. at 653, 57 A.3d at 1245. In sum, the
5
Moreover, the Seebold Court observed,
the adjudicatory process premised on adversarial
presentations[,] which by their nature may be skewed in
favor of the individual interests at stake does not
consistently translate well into the field of broader
policymaking. Along these lines, we have often recognized
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Seebold Court reiterated that because our Legislature is in the best position
to establish public policy and impose affirmative duties,
the default position [of our courts is] that, unless the
justifications for and consequences of judicial policymaking
are reasonably clear with the balance of factors favorably
predominating, we will not impose new affirmative duties.
See [Cafazzo v. Cent. Med. Health Servs., Inc., 542
change in the law is made, a court, if it is to act
responsibly[,] must be able to [fore]see with reasonable
clarity the results of its decision and to say with reasonable
certainty that the change will serve the best interests of
Hoven v. Kelble, 79 Wis. 2d 444,
470, 256 N.W.2d 379, 391 (1977)6]).
Id. at 653-54, 57 A.3d at 1245 (emphasis added).7
As set forth above, the Althaus Court identified five non-exclusive
factors8 courts should consider before imposing a legal duty upon the public.
See Althaus, 562 Pa. at 552-53, 756 A.2d at 1168-69. With respect to the
the superior tools and resources available to the
Legislature in making social policy judgments, including
comprehensive investigations and policy hearings.
Seebold, 618 Pa. at 653, 57 A.3d at 1245 (citations and footnote omitted).
6
Because the Cafazzo Court slightly misquoted the Hoven Court, we
altered the quotation to reflect the original language.
7
The Seebold Court ultimately refused to impose a legal duty upon a
physician treating prison inmates to notify correctional officers that a
particular inmate has a communicable disease. Seebold, 618 Pa. at 661, 57
A.3d at 1250.
8
Neither party has suggested the trial court should have considered an
additional factor.
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Althaus factors regarding th
harm, this Court emphasized the limited scope of both:
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 inferred from the general duty
imposed on all persons not to place others at risk of harm
through their actions.
Sullivan, 369 Pa. Super. 596, 601, 535 A.2d 1095, 1098 (1987)
[hereinafter Sullivan] (citation omitted). The relationship between the
parties, therefore, does not have to be a specific, legally defined
relationship, e.g., bailor-bailee, licensor-licensee, or business invitee. See
id.Regardless, because the instant Appellant contends the trial court, as
invitee instead of bailor-bailee or licensor-licensee, we summarize the
tion of whether an individual is an
-
evidence is insufficient to support an issue, however, it may be appropriate
Palange v. City of
Phila., Law Dept., 433 Pa. Super. 373, 377, 640 A.2d 1305, 1307 (1994).
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Bailment § 1 (2009). Thus, a bailor-bailee relationship generally requires
the existence of a contract:
A bailment is a delivery of personalty for the
accomplishment of some purpose upon a contract,
express or implied, that after the purpose has been
fulfilled, it shall be redelivered to the person who delivered
it, otherwise dealt with according to his directions or kept
until he reclaims it[.] As a general rule, a bailor is not
liable for the negligence of the bailee in the operation of a
bailed chattel[.]
Smalich v. Westfall, 440 Pa. 409, 413, 269 A.2d 476, 480 (1970)
(citations omitted and emphasis added). Put differently:
To constitute bailment, there must be a delivery of
personal property to another, who accepts possession of
the property, and exercises custody and control over it.
While a contract of bailment may be implied, such contract
can arise only when the natural and just interpretation of
the acts of the parties warrants such a conclusion.
Riggs v. Com., Dept. of Transp., 76 Pa. Commw. 227, 230-31, 463 A.2d
1219, 1220-21 (1983) (citations omitted);9 see also 6 Pa. Law Encyclopedia
transfer of possession of personal property without the transfer of ownership
d)).
9
NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 308 n.7 (Pa.
Super. 2012) (citation omitted).
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A licensor-licensee relationship, however, unlike a bailor-bailee
relationship, does not involve a transfer of personal property. Oswald v.
Hausman, 378 Pa. Super. 245, 253-54, 548 A.2d 594, 598-99 (1988).
use of the
premises in question is by express or implied permission of
the owner or occupier. A licensee enters upon the land of
another solely for his own purposes; the invitation
extended to him is given as a favor by express consent or
by general or local custom, and is not for either the
business or social purposes of the possessor.
Id. at 253-54, 548 A.2d at 598-99 (citations omitted); accord T.A., 447 Pa.
Super. at 308, 669 A.2d at 363. Examples of licensees include the
following:
1. One whose presence upon the land is solely for his own
purposes, in which the possessor has no interest, and to
whom the privilege of entering is extended as a mere
personal favor to the individual, whether by express or
tacit consent or as a matter of general or local custom.
boarders or paying guests and servants, who . . . are
invitees.
3. Social guests. . . .
Restatement (Second) of Torts, § 330 cmt. h (1965).
s invited to enter or
remain on land for a purpose directly or indirectly connected with the
Torts, § 332 (1965); accord T.A., 447 Pa. Super. at 308, 669 A.2d at 363.
ed to a business invitee is the highest duty owed to any entrant
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upon land. The landowner is under an affirmative duty to protect a business
visitor not only against known dangers but also against those which might
Emge v. Hagosky, 712 A.2d 315,
317 (Pa. Super. 1998) (citation omitted).
Instantly, we examine the first Althaus factor. As reiterated above,
the trial court held that Appellees were business invitees. Trial Ct. Op. at 6.
With respect to a bailor-bailee10 relationship, Appellant has not established
the existence of a contract, either express or implied. See Smalich, 440
Pa. at 413, 269 A.2d at 480; see also 6 Pa. Law Encyclopedia 2d, Bailment
§ 1. Appellant did not demonstrate that Appellees delivered personalty to it
it. See Riggs, 76 Pa. Commw. at 230-31, 463 A.2d at 1220-21. Moreover,
we question whether Appellant would have agreed to possess and control
See id.
10
As noted above, Appellant appears to suggest it is the bailor. See
goods, not receiving them. 6 Pa. Law Encyclopedia 2d, Bailment § 1. If
Appellant successfully established a claim that it was the bailee, then it
would owe a duty to Appellees, i.e., bailors. See id. Furthermore, as
its interest in the alleged bailed goods, i.e., the rags. See generally 6 Pa.
are for damages to the laundromat not rags. See, e.g.
Compl., 10/3/11, at 3 (unpaginated).
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business purposes. See Oswald, 378 Pa. Super. at 253-54, 548 A.2d at
598-99; Restatement (Second) of Torts, § 330 cmt. h. Appellant, for
example, did not extend a personal favor to Appellees to enter the premises,
social guests. See Restatement (Second) of Torts, § 330 cmt. h. Appellees
did not enter the laundromat solely for their own purposes; Appellees had to
See Oswald, 378 Pa. Super. at 253-54,
548 A.2d at 598-99. Appellees were business visitors invited to enter
business: laundering. See T.A., 447 Pa. Super. at 308, 669 A.2d at 363;
see also Emge, 712 A.2d at 317. Appellant proffers no plausible
business invitee.11 In sum, Appellant failed to substantiate as a matter of
law or identify material issues of fact regarding a bailor-bailee or licensor-
licensee relationship.12 Nonetheless, a relationship does exist between the
11
We decline to consider Garcia, which was cited by Appellant, as it is a
non-binding California case.
Co. of Cent. Pa., 469 Pa. 188, 194, 364 A.2d 1331, 1335 (1976) (noting,
).
12
We reiterate that a legally defined relationship is not required for the first
Althaus factor. See Sullivan, 369 Pa. Super. at 601, 535 A.2d at 1098.
We also recognize that a particular, legally defined relationship may include
a duty of care. See, e.g., Gutteridge, 804 A.2d at 656; Emge, 712 A.2d
at 317. But to the extent Appellant argues that a legally defined relationship
ipso facto mandates the existence of a particular legal duty, see
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parties, as Appellees voluntaril
rags.13
We next examine the second Althaus factor: social utility. In
Althaus
treats a child for alleged parental sexual abuse owes a duty of care to the
14
Althaus, 562 Pa. at 549, 756 A.2d at
1167. The Althaus
abused children perform a valu Id. at
-patients, especially
where the non- Id. The Althaus
Brief at 22, that argument contradicts our obligation to weigh and consider
five factors of the Althaus test and not just the first factor. See Althaus,
562 Pa. at 552-53, 756 A.2d at 1168-69. We decline to hold that upon
establishing a legally defined relationship, e.g., bailor-bailee, it necessarily
follows that a party has a duty of care to, e.g., prevent spontaneous
combustion.
13
The parties do not discuss the duties a business invitee such as
Appellees would have to a business owner.
14
The case arose from a medical malpractice action in which the
parents sued the therapist for negligent diagnosis and treatment. Althaus,
the therapist appealed, arguing she did not owe a duty to the non-patient
parents. Id.- 17 -
J. A31043/13
Id. at 555, 756 A.2d at 1170.
In Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963), our
Supreme Court considered th
conduct in following an insurance claimant. Id. at 193, 189 A.2d at 148.
The investigator had followed and filmed the claimant in public to record her
laimant] has freedom
Id. at 194, 189 A.2d at 148. The Forster
investigations. It is in the best interests of society that valid [insurance]
clai Id. at 197, 189
A.2d at 150 (footnote omitted).
In Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003),
a young child obtained a butane lighter and started a fire that ultimately
killed him, his mother, and another child. Id. at 649, 841 A.2d at 1003.
conduct, namely, the production of a butane lighter without child safety
Id. at 659, 841 A.2d at 1009. The Phillips Court acknowledged
Id. Further, the record did not show that the li
utility increased without a child safety mechanism. Id. Given the nature of
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young children, the Phillips Court opined that child safety features on a
Id. at 660, 841 A.2d at 1009.
The instant trial court noted laundering bar rags had social value. Trial
Ct. Op. at 6. In comparison to treating children who have been sexually
abused, investigating potential insurance fraud, and manufacturing a lighter,
laundering rags has relatively
minimal societal impact. Cf. Phillips, 576 Pa. at 660, 841 A.2d at 1009;
Althaus, 562 Pa. at 554, 756 A.2d at 1170; Forster, 410 Pa. at 197, 189
advantage with an arguable, attenuated public interest in having clean
establishments. At best, this factor is in equipoise15 and we must weigh the
Althaus
combustion. See Althaus, 562 Pa. at 554, 756 A.2d at 1170.
Althaus] factor, duty arises only when one
engages in conduct which foreseeably creates an unreasonable risk of harm
R.W. v. Manzek, 585 Pa. 335, 348, 888 A.2d 740, 747 (2005)
15
Because the standard of review is de novo, we need not defer to the
determination of the trial court. See Seebold, 618 Pa. at 650, 57 A.3d at
1243.
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(citing, inter alia, Griggs v. BIC Corp., 981 F.2d 1429, 1435 (3d Cir.
1992));16 Campo, 755 A.2d at 24.
[T]he concept of foreseeability means the likelihood of the
occurrence of a general type of risk rather than the
likelihood of the occurrence of the precise chain of events
leading to the injury. Although it is true that a defendant
is not required to guard against every possible risk, he
must take reasonable steps to guard against hazards
which are generally foreseeable.
Huddleston v. Infertility Ctr. of Am., Inc., 700 A.2d 453, 460 (Pa.
Super. 1997) (citation and punctuation omitted).
For example, in Lindstrom, our Supreme Court examined whether a
pol Lindstrom, 563 Pa. at 581, 763 A.2d at 395. The
Lindstrom Court held, with respect to the third Althaus
16
In Griggs, the United States Court of Appeals for the Third Circuit
approvingly quoted the following:
No person can be expected to guard against harm from
events which are not reasonably to be anticipated at all, or
are so unlikely to occur that the risk, although
recognizable, would commonly be disregarded. . . . On the
other hand, if the risk is an appreciable one, and the
possible consequences are serious, the question is not one
of mathematical probability alone. . . . As the gravity of
the possible harm increases, the apparent likelihood of its
occurrence need be correspondingly less to generate a
duty of precaution.
Griggs, 981 F.2d at 1436 (quoting W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 31, at 170-71 (5th ed. 1984)); accord
Schmoyer ex rel. Schmoyer v. Mexico Forge, Inc., 437 Pa. Super. 159,
164, 649 A.2d 705, 708 (1994).
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evident that there is a risk of injury to the fleeing driver, and it is
foreseeable that drivers who refuse to pull over when alerted to do so may
Id. at 585, 763 A.2d at 397.
Our Supreme Court ultimately held that a police department has no such
duty of care to a fleeing driver. Id. at 580, 763 A.2d at 395.
Similarly, in , 573 Pa. 90, 821 A.2d 1215(2003), our Supreme Court held that with respect to drug testing,
Id. at 98, 821 A.2d at 1220.
Children playing with butane lighters lacking child safety devices, our
Supreme Court concluded, posed a substantial risk of injury and the
evidence established that the lighter manufacturer could reasonably foresee
that harm. Phillips, 576 Pa. at 660, 841 A.2d at 1009. The Althaus Court
also concluded that the harm in that case false accusation of sexual
abuse was substantial and foreseeable given the unique facts of that case.
Althaus, 562 Pa. at 554, 756 A.2d at 1170.
In the case at bar, as stated above, the trial court asserted that
spontaneous combustion of washed rags left in a dryer was not a
foreseeable risk. Trial Ct. Op. at 7. We agree with the trial court that fire is
an appreciable risk with serious potential consequences. See Griggs, 981
F.2d at 1436; Phillips, 576 Pa. at 660, 841 A.2d at 1009. Appellees were
also aware of the phenomena of spontaneous combustion, although they
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were unaware that grease could cause it. See
Resp. to Appe
risk of spontaneous combustion, however, does not result in a duty unless
See R.W., 585 Pa. at 348,
888 A.2d at 747; Huddleston, 700 A.2d at 460. Thus, we examine whether
17
specifically, leaving washed
rags in the dryer after the dryer completed its cycle foreseeably created an
unreasonable risk of spontaneous combustion.
As discussed above, in Lindstrom, our Supreme Court held a driver
fleeing from police foreseeably created an unreasonable risk of injury. See
Lindstrom, 563 Pa. at 585, 763 A.2d at 397. Similarly, the Sharpe Court
held that an inaccurate drug test result foreseeably created an unacceptable
risk of employment termination. See Sharpe, 573 Pa. at 98, 821 A.2d at
1220. A lighter manufacturer, the Phillips Court held, could reasonably
foresee that lighters without child safety devices could result in an
unreasonable risk of fire or other harm. See Phillips, 576 Pa. at 660, 841
A.2d at 1009. Finally, a false allegation of sexual abuse was both a
substantial harm and foreseeable under the circumstances of that case. See
Althaus, 562 Pa. at 554-55, 756 A.2d at 1170.
17
As noted supra, we view the record in the light most favorable to
Appellant.
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Unlike the conduct examined by those courts, however, we do not
specifically, not promptly
removing the rags from the dryer foreseeably created an unreasonable risk
of spontaneous combustion. See R.W., 585 Pa. at 348, 888 A.2d at 747.
Even given the gravity of the harm posed by spontaneous combustion, we
question whether Appellees, let alone the general public, would have
reasonably anticipated spontaneous combustion under these circumstances.
See id.; see also Griggs, 981 F.2d at 1436. After weighing the social
utility of laundering rags against the nature and foreseeability of
spontaneous combustion, we find that these factors weigh against imposing
the affirmative duties proposed by Appellant. See Althaus, 562 Pa. at 555,
756 A.2d at 1170.
The fourth Althaus factor is the consequences of imposing a duty
upon the actor. Althaus, 562 Pa. at 553, 756 A.2d at 1169. In Althaus,
our Supreme Court held that expanding -
patients would alter the therapeutic relationship of professional
confidentiality. Id. at 555-56, 756 A.2d at 1170-71. The consequences of
imposing such a duty, the Althaus Court noted, would deter victims of
sexual abuse from seeking treatment if therapists could not guarantee
confidentiality. Id. Thus, our Supreme Court held this factor weighed
against imposing a duty. Id. at 556, 756 A.2d at 1171.
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In Thierfelder v. Wolfert, 617 Pa. 295, 52 A.3d 1251 (2012), our
Suprem
professional negligence, a general practitioner who provides mental health
treatment to a patient is held to the same higher duty as a specialist in
lleged, entails a specific and
Id. at 311, 317, 52 A.3d
at 1261, 1264. With respect to the fourth Althaus factor, our Supreme
Court observed that
rs to
provide their patients with some form of front-line mental
or emotional care; and this care may go so far as to
include the prescription of medications to relieve stress-
induced anxiety and even antidepressants. The proffered
duty and tort would impose significant consequences on
general practitioners rendering such care who become
sexually involved with a patient, solely because of
incidental mental health treatment. Ours is a fluid and
complex society, where concepts of free will and personal
responsibility hold some sway. The prophylactic absolute
duty of avoidance of sexual contact proffered here excises
those concepts in one narrow situation deriving from the
special circumstances, vulnerability, and potential
exploitation that may arise from a course of mental health
treatment, based upon a phenomenon familiar to
specialists in the field. To hold general practitioners
providing incidental care to that same standard would have
the effect of discouraging general practitioners from
rendering what appears to have become, by now,
emotional well-being.
Id. at 337-38, 52 A.3d at 1277. The Thierfelder Court held that the effects
a question of
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Id.
at 338, 52 A.3d at 1277.
learn the
prompt removal of rags from the dryer, using a degreasing solution prior to
h[ing] the rags to ensure the removal of all
Id.
public laundromats, users of same, and commercial restaurant laundry
Id. As noted above, the trial court disagreed with Appellant. Trial
Ct. Op. at 9.
Cf. Phillips, 576
Pa. at 6
duty on the public including customers laundering bar rags in a public
laundromat based on the instant record, is less clear. Appellant has not
referred us to anything in the record substantiating its bald claim that the
Cf. Thierfelder, 617 Pa. at 337-38, 52
A.3d at 1277; Althaus, 562 Pa. at 555, 756 A.2d at 1170. We are,
therefore, reluctant to render a social policy judgment and impose a
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Commonwealth-
characterization of the burden on the public. Cf. Seebold, 618 Pa. at 653,
See Trial
Ct. Op. at 9-10; see also Seebold, 618 Pa. at 650, 57 A.3d at 1243
(recognizing de novo standard of review). At best, without more, this factor
Althaus factor. Althaus, 562 Pa. at 553, 756 A.2d at
1169. For example, in Althaus, our Supreme Court held that competing
public interests weighed against imposing a duty on a therapist treating a
child abuse:
There are certainly compelling arguments that a person
falsely accused of child abuse should have a remedy in law
and our decision today would not prevent all such actions
against liable parties. However, the societal interest in
encouraging treatment of child abuse victims and
maintaining the trust and confidentiality within the
therapist/patient relationship dictates against the
imposition of a duty of care beyond that owed to the
patient.
Id. at 556-57, 756 A.2d at 1171 (citation and footnote omitted). The
Althaus
of imposing a duty on a therapist to a non-patient was greatly outweighed
Id. In
Thierfelder, our Supreme examine
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involvement with patients to general practitioners who undertake some
Thierfelder, 617 Pa. at 338, 52 A.3d at 1277-78. The Court acknowledged
Id. at 338,
52 A.3d at 1278. Imposing such an absolute duty, our Supreme Court held,
18
Id. at 339, 52 A.3d at 1278. Our Supreme Court thus weighed
the fifth Althaus factor against the imposition of such a duty. Id. The
Thierfelder Court recognized, as did the Seebold Court, that courts are ill-
suited to setting public policy. Id. at 339-40, 52 A.3d at 1278; see
Seebold, 618 Pa. at 653 & n.19, 57 A.3d at 1245 & n.19.
Instantly, as set forth above, Appellant proposes requiring that all
customers laundering bar rags educate themselves about the risks, promptly
remove rags from the dryer, use degreaser prior to washing rags,
thoroughly wash rags to remove all oils, or use a commercial restaurant
laundry service to clean oily rags. See
18
Further, the Thierfelder Court noted such a duty would not deter doctors
who would intentionally engage in such behavior and there were other
causes of action that would not require the imposition of an absolute duty.
Id. at 1278.
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id. at 32-
ed requirements. See
Thierfelder, 617 Pa. at 338, 52 A.3d at 1277-78. Appellant, however,
interest in preventing fires. See
noted that imposing A
feasibly reduce the risk of fire. Trial Ct. Op. at 9.
We agree that the Commonwealth has an interest in preventing fires.
Cf. Phillips
inter Cf.
Thierfelder, 617 Pa. at 338, 52 A.3d at 1278 (conceding complexity of
imposing safeguard of absolute duty best left to, e.g., legislature). Appellant
simply does not discuss the social cost of its solutions. Cf. id. (noting high
social cost of proposed solution). The parties also did not discuss the
availability of other legal causes of action. Cf. id.; Althaus, 562 Pa. at 556,
756 A.2d at 1171. At best, because Appellant failed to address the potential
social costs of its edicts, this factor weighs against imposing a duty. Cf.
Thierfelder, 617 Pa. at 338, 52 A.3d at 1278; cf. generally Seebold, 618
Pa. at 653, 57 A.3d at 1245.
injury
the burden of guarding against the injury and the consequences of placing
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Althaus, 562 Pa. at 553, 756 A.2d at 1169, the
balance of the Althaus fa
See Seebold, 618 Pa. at 653-54, 57 A.3d at 1245. This case, focused on
the individual interests of Appellant, does not necessarily translate into the
are best served by
imposing a duty upon the public to, e.g., preemptively guarantee the
absence of flammable oils prior to using a laundromat dryer. See id.
(noting adversary system of justice ill-suited for imposing Commonwealth-
wide duty). The Legislat
adversarial process, as our Supreme Court has repeatedly emphasized, is
best suited to setting public policy. See id.; accord Conway v. Cutler
Grp., 80 MAP 2013, 2014 WL 4064261, at *5, 2014 Pa. LEXIS 2084, at *13-
*15 (Pa. Aug. 18, 2014). Accordingly, given the instant record, we adhere
to our default position of not imposing a new affirmative duty and defer to
our Legislature. See Seebold, 618 Pa. at 653-54, 57 A.3d at 1245.
For its last issue, Appellant contends the trial court improperly
have reasonably known that laundering bar rags could spontaneously
combust. Appellant maintains that the trial court accordingly erred as a
matter of law by rendering credibility determinations in favor of Appellees.
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a question of
law and the burden of proof with respect to whether a duty has been
breached a question for the fact-finder. See Emerich, 554 Pa. at 233, 720
A.2d at 1044. The trial court did not improperly make credibility
determinations and weigh conflicting evidence adverse to Appellant because
it held that Appellees, as a matter of law, owed no duty of care. See id.;
see also Trial Ct. Op. at 5, 10. Conversely, because Appellees owed no
duty of care as a matter of law, the trial court did not have to construe facts
or render credibility determinations. See Emerich, 554 Pa. at 233, 720
A.2d at 1044. Accordingly, having discerned no error of law with the trial
See
Gutteridge, 804 A.2d at 651.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
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