By Clifford A. Rieders
CHAPTER 7. AFFIRMATIVE DEFENSES
A PENNSYLVANIA PERSPECTIVE
The American Law Institute and its continuing effort to be more specific with regard to setting “rules” for conduct in the tort area now addresses the general principle “that an actor has the duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm,” at 1.
The reporters Michael D. Green, Wake Forest University School of Law, Winston-Salem, North Carolina; and William C. Powers, Jr., University of Texas School of Law, Austin, Texas; their Advisors and Consultative Group members begin with the “basic proposition that an actor whose conduct has not created a risk of physical harm does not have a duty to aid another person.” Id.1
§ 37. No Duty of Care for Risks Not Created by Actor
Subject §§38-43, an actor whose conduct has not contributed to the risk of physical harm has no duty of care to the other. Pg. 3.
Prior Restatement sections, 314 and 315, neglected to clarify that the no-duty rule was conditioned on the actor having played no role in facilitating the third party’s conduct, such as providing a dangerous weapon to an insane individual.
The example is given of an insurance inspection company that fails to identify a leaking valve which eventually admits carbon monoxide causing harm to an employee of the inspector company. Under that circumstance the court finds that the duty of care is governed by provisions of this Chapter.
The reporters’ note identifies the ideology of the black letter law as predicated upon the distinction between liability for misfeasance and no liability for nonfeasance. at 11.
PENNSYLVANIA PERSPECTIVE:
Section 37 of the third Restatement, which appears to revise sections 314 & 315 of the second Restatement, states that an actor, whose conduct has not contributed to a risk of physical harm created by another, has no duty of care to others, provided that the actor had no role in facilitating the third party’s tortious conduct, except in the circumstances described in sections 38 through 43. This rule of no liability for the tortious acts of third parties also exists in Pennsylvania. The general Pennsylvania common law rule, as stated and quoted in many cases, is that there is no duty to control the conduct of a third party to protect another from harm absent a special relationship. Emerich vs. Philadelphia Center for Human Development, Inc. and Albert Einstein Medical Center, 554 Pa. 209, 217, 720 A.2d 1032, *; 1998 Pa. LEXIS 2532 (1998 Supreme Court of Pennsylvania); Brezenski vs. World Truck Transfer, Inc., 2000 PA Super 175, 755 A.2d 36, 40 (Pa. Super. 2000).
The Brezenski Court, supra, provides a good summary of the basic law as follows:
Under common law there is no duty to control the conduct of a third party to protect another from harm, except where a defendant stands in some special relationship with either the person whose conduct needs to be controlled or in a relationship with the intended victim of the conduct, which gives the intended victim a right to protection. Emerich vs. Philadelphia Center for Human Development, 554 Pa. 209, 720 A.2d 1032 (1998). Thus, an exception has been carved out for those instances where a special relationship exists between the defendant and the actor or between the defendant and the foreseeable victim of the actor’s conduct. Dunkle vs. Food Service East Inc. 400 Pa. Super. 58, 582 A.2d 1342 (1990), citing Tarasoff vs. Regents of University of California, 17 Cal. 3d 425, 435, 551 P.2d 334, 343, 131 Cal. Rptr. 14 (1976). An act cannot be negligent unless the harm is foreseeable to the class which the complaining party belongs. Commonwealth Dept of Highways vs. Eldridge, 408 Pa. 391, 184 A.2d 488 (Pa. 1962).
[*P15] These general principles parallel the law as set forth in the Restatement. Section 315 of the Restatement (Second) of Torts sets forth a general principle that there is no duty to control the conduct of a third person to prevent others from harm, unless there is a special relationship between the actor and the third person or between the actor and the injured party, which gives that party a right to protection.
Though not frequently mentioned in the cases, there is some support for the proposition that Pennsylvania law requires that the no duty rule requires that the actor not have in any way aided, abetted, counseled or encouraged the conduct giving rise to the risk of harm. See, e.g., Hinski vs. Stein, 68 Pa. Super. 441, 448 [*309] (1917). Cf. Community Federal Savings & Loan Ass’n vs. Luckenbach, 436 Pa. 472, 476, 261 A.2d 327, 329 (1970) (“a husband is not responsible for the tortious acts of his wife committed outside his presence and without his actual or implied consent or direction.”); and T.A. vs. Allen (Appeal of Allen), 447 Pa. Super. 302 (discussed below).
§ 38. Duty Based on Earlier Conduct Creating Continuing Risk of Harm
When an actor’s earlier conduct, even though not tortious, creates a continuing risk of physical harm to another or causes harm to another, the actor has a duty to exercise reasonable care to the other to prevent or ameliorate the harm. Pg. 22.
This section seems to create an exception to the no-duty rule where time passes and an appreciation of the risk should arise. There seems to be some inherent ambiguity in the statement of a black letter law by mixing legal concepts with factual inquiries. The reporters used the terminology “not tortious” and juxtapose that against a “continuing risk” of physical harm. What precisely that means is far from clear.
Interestingly the reporters themselves take the dilemma as follows: “the juxtaposition of reasonable care with unreasonable risk strongly implies some role for unreasonable risk independent of negligent conduct.” at 23.
The example is given of Morris who loses control of his truck due to no fault of his own. Something happens with the steering mechanism. Morris runs into a utility pole which is knocked down. The reporters say that he may have some duty with regard to the pole lying across the street. at 25-26.
PENNSYLVANIA PERSPECTIVE:
This section appears to find that there is a general rule that there is no duty to act to prevent or ameliorate potential harm to others which may be caused by non-tortious conduct but that there is an exception when the passage of time exposes a continuing risk of harm. When non-tortious conduct creates a continuing risk of harm, a duty arises to exercise reasonable care to prevent or ameliorate the risk of harm to others. While the creation of the risk of harm was not negligent, however, allowing the risk of harm to continue is negligent. The breach of that duty occurs only when the passage of time has lapsed within which the “reasonable person” would have taken steps to prevent or ameliorate the harm created. In the example, where a driver loses control of his truck, through no fault of his own (possibly through the tortious act of another with respect to the steering mechanism which caused the accident), and knocks down a utility pole which lies across the street, at some point, a “reasonable person” would do something to prevent or ameliorate the risk of harm caused by the utility pole.
The reporters see the dilemma in the following terms: “the juxtaposition of reasonable care with unreasonable risk strongly implies some role for unreasonable risk independent of negligent conduct.” At 23. This suggests that the duty arises from the unreasonable risk of harm caused by allowing the risk of harm to continue.
It is difficult to determine whether this duty clearly arises under Pennsylvania law. In F.D.P. vs. Ferrara, 2002 Pa. Super. 223; 804 A.2d 1221; 2002 Pa Super. LEXIS 2870, 2002 the Pennsylvania Superior Court noted:
[*P35] Our Supreme Court has delineated the considerations that must be weighed when we are deciding whether to create a duty. The primary consideration is simply social policy. In Gardner vs. CONRAIL, 524 Pa. 445, 573, A.2d 1016 (1990), our Supreme Court explained:
In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than “the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection” from the harm suffered. Leong vs. Takasaki, 55 Haw. 398, 520 P.2d 758, 764 (1974).
In Althaus, the Supreme Court specified the factors a trial court should consider when determining whether to impose a duty in any negligence action as follows:
The relationship between the parties;
The social utility of the actor’s conduct;
The nature of the risk imposed and foreseeability of the harm incurred;
The consequences of imposing a duty upon the actor; and
The overall public interest in the proposed solution. Althaus, 756 A.2d at 1169; Brisbine, supra, 2002 Pa Super. 138 at P17, 799 A.2d at 95.
Under the Althaus standard, one could certainly argue in favor of the duty.
Furthermore, a similar, but not quite as strong, duty may be found in Pennsylvania. In Cipriani et. al. vs. Sun Pipeline Company et. al., 393 Pa. Super. 471, 574, A.2d 706 (1990 Pa. Super), the court imposed a duty, mostly arising from statute, but went on to state that even if the statute had not imposed a duty, there is a duty to exercise reasonable care to prevent harm where a prior act created a risk of harm. However, the original act creating a risk of harm in Cipriani vs. Sun Pipeline Company appears to be negligent or tortious in and of itself, (the presence of an unmarked pipeline with dangerous material located under a paved roadway creating a risk of rupture), whereas the Restatement suggests that the initial act would not be tortious. In any event, the Cipriani court states the following:
A duty to perform an act (as opposed to a duty to act in a non-negligent manner once an act is undertaken) may be imposed in the absence of statute. For example, Restatement (2d) of Torts section 321 provides that where the prior act of the actor has created a risk of harm, the actor is under a duty to exercise reasonable care to prevent the risk from taking effect. See also Restatement (2d) of Torts 323. In this case, the presence of the unmarked pipeline located under a paved roadway created a risk of rupture. The obviousness of the risk is underscored by the numerous regulations designed to prevent puncture.
We believe that, under traditional duty analysis, Sun should have taken reasonable precautions to prevent the risk of rupture. Joining PA One-Call certainly seems to require de minimus effort and to be significant in preventing risk of rupture. Furthermore, since Sun would have been informed of the proposed construction as a member of PA One-Call, there was evidence that if Sun had PA One-Call, the rupture would not have occurred. Thus, it was proper for the trial court to submit this issue to the jury.
In the present case, the risk of rupture of a pipeline under a paved road is obvious and the simple action of joining PA One-Call would have significantly reduced the risk created by the presence of the pipeline under the road. Sun was required under federal regulations to take a number of steps to prevent against unintentional rupture of its line—an extremely foreseeable event. The trial court charged the jury under general negligence principles that Sun was under an obligation to take reasonable steps to prevent a rupture, and we concur. Joining PA One-Call certainly could be considered by the jury as a reasonable step designed to prevent rupture of the line. Accordingly, we chose to apply section 321 of the Restatement of Torts under the facts presented in this case. (Emphasis added)
Caveat: it is significant that the concurring opinion rejects the adoption of a cause of action based upon section 321, stating: “Tort law should shape society’s actions by “distinguish[ing] between acceptable and prohibited behavior and … [by] penalizing that latter.” Glick, 369 Pa. Super. 438, 535 A.2d at 631. While Sun’s actions in the present case may appear to fit squarely within the perimeters of a section 321 cause of action, the majority recognition of such a theory of tort liability does not provide guidelines to influence future behavior. Id.
The problem with the example given by the Third Restatement is that many jurisdictions have a special duty of care with respect to a public roadway being obstructed.
§ 39. Duty Based on Special Relationship with Person Subject to Risk
An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship. Special relationships imposing this duty include:
A common carrier with its passengers,
An innkeeper with its guests,
(3) A business or other possessor of land who holds its premises open to the public with those who are lawfully on the premises,
(4) A jailer with its prisoners,
A school with its students,
A landlord with its tenants, and
A custodian with those in its custody, if the custodian is required by law or voluntarily takes custody of the other under circumstances in which the custodian has a superior ability to protect the other.
Generally speaking the American Law Institute has stayed away from exhaustive “lists.” The problem with making a list is what may be left off. The Reporters do use the term “include” however.
Unfortunately the reporters keep the terminology “special relationship” which has created so much confusion both in the tort and the constitutional tort context. Obviously the term “special relationship” has to be defined first which the reporters themselves say has “no independent significance.” Pg. 34.
The illustration is given of somebody who is shopping at a dress store. A sales clerk ignores the ill customer for 30 minutes while she waits on another customer. The Reporters say that the store clerk owes a duty of reasonable care as subject to liability for enhanced injury. However, it seems that such a situation would really not fit within the “special relationship” test, but rather is a matter of more conventional liability. The example is also a poor one because it may cause some confusion over vicarious liability. Is the store liable because one of its clerks does not render or obtain medical care for a customer? Is their activity within the course and scope of employment?
PENNSYLVANIA PERSPECTIVE:
Pennsylvania likewise recognizes a duty arising out of a special relationship between the tortfeasor and victim. Pennsylvania has extended this concept and found that a “special relationship” exists between the surrogacy business, its client-participants, and, most especially, the child which the surrogacy undertaking creates an affirmative duty of protection. Huddleston vs. Infertility Ctr. Of Am., 700 A.2d 453, 700 A.2d 453, *; 1997 Pa. Super. LEXIS 2650. The Huddleston court notes the following case.
Kleinknect vs. Gettysburg College, supra, The United State Court of Appeals for the Third Circuit discussed the “special relationship” concept in the context of its duty analysis. In Kleinknect, a twenty year-old student at Gettysburg College died of cardiac arrest while practicing lacrosse as a member of its intercollegiate lacrosse team. His parents instituted wrongful death and survival actions against the college, claiming that the college was negligent in failing to provide the proper medical attention for their son when he collapsed on the playing field. The district court granted summary judgment to the college, holding that it had no duty to anticipate and guard against the risk that a young, healthy athlete would suffer a fatal heart attack while participating in its sports program.
On appeal, the decedent’s parents argued that the college owed a duty to its student athletes to implement preventive measures assuring prompt assistance and treatment in the event that a medical emergency would occur while playing a school-supervised intercollegiate athletic activity. The Kleinknect court agreed, and held that Gettysburg College owed such a duty to the decedent, its intercollegiate athlete, due to the “special relationship” that was created when the college recruited him to participate in a sport which it organized and supervised, and from which it reaped many benefits, including favorable attention and increased enrollment. “Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time…” Kleinknect, supra, at 1366, quoting Morena vs. South Hills Health System, 501 Pa. 634, 642, 462 A.2d 680, 684 (1983).
There are also cases where the Pennsylvania courts have declined to find a special relationship sufficient to create a duty. For example, in T.A. vs. Allen (Appeal of Allen), 447 Pa. Super. 302, the court found that the relationship of step-grandmother to step-grandchild was not sufficient, where she did not assume caretaking responsibilities for the children and therefore the step-grandmother did not owe a duty to warn or protect her step-children from a danger of known child abuse by her husband, the children’s grandfather.
Before a person may be subject to liability for failing to act in a given situation, it must be established that the person has a duty to act; if 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. Id. at 8, 564 A.2d at 1248. See: Restatement (Second) of Torts §314. (Emphasis added).
In this case, appellant did not cause injury to the grandchildren by her own, affirmative conduct. The allegation, rather, was that she had failed to protect her husband’s grandchildren from pedophilic tendencies of her husband which she knew or should have known. T.A. vs. Allen (Appeal of Allen), 447 Pa. Super. 302.
I need not tell you that there are many federal cases on the subject which do not specifically rely upon state law. Some of those Third Circuit cases are quite contradictory recognizing duty to a drunk who fell off a wall in Philadelphia (Ziccardi vs. City of Philadelphia, 288 F.3d 57 (2002)) but finding no duty by virtue of a creation of an emergency medical response team when a child choked on a grape (Brown vs. Commonwealth of PA, Department of Health, 318 F.3d 473(2003)). However, the court once again finds a duty when a police officer is shot after a chase and where a swat team acted with deliberate indifference (Curley vs. Klem, 298 F.3d 271 (2002) and Estate of Smith vs. Marasco, 318 F.3d 497(2003)). These cases may arguably be distinguished based upon the “deliberate indifference” standard.
§ 40. Duty Based on Special Relationship with Person Posing Risks to Third Persons
An actor in a special relationship with another owes a duty of reasonable care to third persons with regard to risks posed by the other that arise out of the relationship.
Special relationships sufficient to create such a duty include:
A person with minor children,
A mental health professional with patients,
An employer with employees acting outside the scope of employment, and
A custodian with those in its custody
The same criticisms can be rendered against this section. The term “special relationship” is not defined and the list of relationships sufficient to create such a duty is certainly not exhaustive.
PENNSYLVANIA PERSPECTIVE:
As stated previously, the general Pennsylvania common law rule, as stated and quoted in many cases, is that there is no duty to control the conduct of a third party to protect another from harm absent a special relationship. Emerich vs. Philadelphia Center for Human Development, Inc. and Albert Einstein Medical Center, 554 Pa. 209, 217, 720 A.2d 1032, *; 1998 Pa. LEXIS 2532 (1998 Supreme Court of Pennsylvania) (duty found); Brezenski vs. World Truck Transfer, Inc., 2000 Pa Super 175, 755 A.2d 36, 40 (Pa. Super. 2000) (no duty). There are numerous cases in Pennsylvania which discuss this precise issue.
In Emerich vs. Philadelphia Center for Human Development, Inc. and Albert Einstein Medical Center, 554 Pa. 209, 217, 720 A.2d 1032, *; 1998 Pa. LEXIS 2532 (1998 Supreme Court of Pennsylvania), the Supreme Court of Pennsylvania found that a mental health provider had a duty to warn a third party about a risk of harm posed by a patient. There, the patient made a specific threat to a specific person who the mental health provider had a duty to warn. Significantly, Emerich follows other jurisdictions, including the Tarasof ruling, in finding a duty.
In Hutchison vs. Luddy, 560 Pa. 51, 742 A.2d 1052 (1999), The Pennsylvania Supreme Court found that church superiors of a priest who engaged in sexual molestation of a parishioner where those superiors had knowledge of the priest’s conduct had a duty based upon the master-servant relationship as well as the special relationship with the parishioner by applying the Restatement (Second) of Torts §317.
By contrast, in F.D.P et al vs. FERRARA, et al., 2002 Pa. Super. 223, *; 804 A.2d 1221; 2002 Pa. Super. LEXIS 1544, the Superior Court held that the mental health provider did not have a duty to supervise or control or take action to prevent a rape caused by its patient even though they were well aware of the patient’s history and propensities for violent sexual conduct. The court noted that:
…a variety of duties have been imposed for the acts of third parties under the case law, nonetheless, none of those duties is directly applicable in this case. Furthermore, we note that Pennsylvania courts are reluctant to subject a person to liability for the acts of a third party in the absence of compelling circumstances. Indeed, there are a number of cases significantly analogous to the present one where the courts have refused to impose such liability.
[*32] The case most factually similar to the instant case is Heil vs. Brown, 443 Pa. Super. 502, 662 A.2d 669 (Pa. Super. 1995)… in Heil the mental health…patient’s condition worsened, but when his treating physician and psychiatrist were not available, the patient’s social worker drafted a treatment plan and told the patient to return to see a psychiatrist. The patient was not committed even though he appeared very agitated. The following day, the patient experienced a psychotic episode while driving and drove his car into a police van. A police officer was injured severely in the accident, and he and his wife instituted an action against the mental health care providers.
We held “that mental health professionals do not owe a duty to protect third parties.” Id. at 671 (footnote omitted). We concluded that liability was not present because there was no relationship between the mental health providers and the plaintiffs that created any legal obligation based upon the fact that the harm was not foreseeable. While the occurrence of a traffic accident due to a psychotic episode is considerably less foreseeable than the fact that a sexual molester will molest when he consistently has displayed such behavior, Heil nonetheless supports the position that a mental health provider owes no duty to protect against the actions of his patient in the absence of special circumstances such as those present in Emerich. See also Brisbine vs. Outside in School of Experiential Education, Inc., 2002 Pa. Super. 138, 2002 Pa. Super. LEXIS 806; Crosby by Crosby vs. Sultz, 405 Pa. Super. 527, 592 A.2d 1337 (Pa. Super. 1991).
[*P34] Indeed, in Dunkle vs. Food Service East, Inc., 400 Pa. Super. 58, 582 A.2d 1342 (Pa. Super. 1990), we held that mental health providers were not liable for harm caused by an admittedly dangerous patient since the patient had failed to convey a specific threat of harm against his eventual victim. We stated that a psychologist or psychiatrist owes no duty to warn “or otherwise protect” a non-patient where the patient has not threatened to inflict harm on a particular individual. Id. at 1342…. We also note that there is a plurality decision of our Supreme Court discussing the liability of mental health providers to third parties who are harmed by the actions of their patients. See Althaus vs. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000). In that decision by three justices on a six-justice court with one justice not participating, our Supreme Court held that a treating psychiatrist or psychologist owes no duty of care to parents of a child-abuse victim based on allegations that the defendant negligently treated the child patient. That case was limited in application to patients who are being treated based upon allegations of child abuse.
In Brezenski vs. World Truck Transfer, Inc., 2000 Pa 175, 755 A.2d 36, 40 (Pa. Super. 2000) no duty arose from the employer relationship where an employee, who was not carefully screened, shot two people outside the scope of employment.
§ 41. Duty Based on Undertaking
An actor who gratuitously or for consideration undertakes to render services to another has a duty of reasonable care to the other in conducting the undertaking, if:
The actor should recognize that the undertaking reduces the risk of physical harm to the other, and
The failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or
The person’s reliance on the actor’s exercising reasonable care in the undertaking causes the harm.
This section has the most interesting and unique twist of logic. An actor is liable who is attempting to reduce the risk, but because he/she is not careful actually increases the risk of harm. Unfortunately, the reduction of risk scenario is not necessary to define the negligent conduct. Typically, anyone who increases the risk of harm is liable, regardless of whether they were trying initially to reduce it or not. However, this language could be helpful in medical malpractice cases as presumably most doctors are attempting to reduce the physical risk to another when they, through lack of due care, increased the risk of harm.
Whether this is improvement over the current Section 323 is subject to some debate.
The illustration given is of a fire inspection person who looks at a newly purchased warehouse to determine the extent of risk of fire for underwriting purposes and lost prevention. The inspector gives several suggestions for reducing the risk of fire, but does not tell the owner about frayed wiring. The frayed wiring causes a fire and all the contents are lost. The inspection company is liable for the harm to the warehouse (even though there was no physical harm) independent of its obligation under the insurance agreement.
PENNSYLVANIA PERSPECTIVE:
Pennsylvania recognizes a duty from an undertaking. In Shaw vs. Kirshbaum, 439 Pa. Super. 24, *; 653 A.2d 12; 1994 Pa. Super. LEXIS 3783 (finding no duty), the Superior Court noted that Section 323 has been applied in numerous medical malpractice actions, it has never been utilized in a context similar to the instant case. See, e.g.: Riddle Memorial Hospital vs. Dohan, 504 Pa. 534, 421 A.2d 674 (1984) (failure of hospital to act reasonably in permitting doctor to remove patient from emergency room); Gradel vs. Inouye, 491 Pa. 534, 421 A.2d 674 (1980) (failure to diagnose bone cancer); Hamil vs. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978) (failure to diagnose heart attack). And that: Section 323 does not obviate the traditional components of a prima facie case sounding in negligence, but rather substitutes a gratuitous undertaking for the element of duty. A prima facie case of medical malpractice based upon a negligent act or omission requires the plaintiff to establish: the existence of a duty owed by the physician/defendant to the plaintiff/patient;
In Reider vs. Martin, 359 Pa. Super. 586, 519 A.2d 507 (Pa. Super. 1987) (where landlord undertook contractual obligation to provide lock to tenants, landlord was subject to liability for harm caused by third party who entered through unlocked door and attacked tenant).
It should be further noted that this section has been held not to apply to governmental entities. See, e.g., Gardner vs. Conrail SEPTA, 524 Pa. 445, 573 A.2d 1016 (1990).
§ 42. Duty to Third-Persons Based on Undertaking to Another
An actor who gratuitously or for consideration undertakes to render services to another has a duty of reasonable care to a third persons in conducting the undertaking, if:
(a) The actor should recognize that the undertaking reduces the risk of physical harm to which a third person is exposed, and
(b) The failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or
(c) The actor has undertaken to perform a duty owed by the other to the third person, or
(d) Reliance by the other or the third person on the actor’s exercising reasonable care in the undertaking causes the harm.
We have the same general comments with regard to this section as to (a) and (b).
The section is intended to parallel Section 41, but imposes a duty to third persons.
The illustration given is of Phillips’ Ribs, a restaurant, which hires Lindsey to keep its sidewalks clear of ice and snow. After a particularly bad storm, Lindsey failed to clear Phillips’ sidewalks. Luther, a customer of Phillips, fell on the sidewalk and suffered injury. Lindsey has a duty of reasonable care to Luther because Lindsey undertook a duty owed by Phillips to Luther. Pg. 104.
This Restatement, like most of the others before it, barely looks at any Pennsylvania law, as we have observed in the past. The Reporters have advised this author that no venal motive is at work and that they welcome input.
PENNSYLVANIA PERSPECTIVE:
Pennsylvania has recognized a duty to third persons arising from an undertaking in the context of a physician’s requirement to protect others from a patient’s communicable disease. See e.g., Troxel vs. A.I. Dupont Institute, 450 Pa. Super. 71; DiMarco vs. Lynch Homes-Chester County, Inc., 384 Pa. Super. 463, 559 A.2d 530, 531 (1989) (DiMarco I).
§ 43. Duty Based on Taking Charge of Another Who is Helpless
(a) An actor who, despite no duty to do so, undertakes a rescue and takes charge of another who is imperiled and helpless or unable to protect himself or herself has a duty to exercise reasonable care while the other is within the actor’s charge.
(b) An actor who discontinues rescue efforts is subject to a duty of reasonable care not to leave the other in a worse position than when the actor took charge of the other and, if the other is in imminent peril of serious bodily harm, to exercise reasonable care to secure the safety of the other before terminating the rescue.
This is an example of a Restatement section where the intent is good, but there are too many words. It certainly is not necessary to use the concept of “peril” and “helpless” or “unable to protect himself or herself.” It appears that any one of those words would be sufficient, although the use of the combination arguably enhances the duty of care.
The Reporters do take note of the many Good Samaritan statutes which have been passed in essence failing to protect those sometimes in most need of it because of the good faith intention of a rescuer.
PENNSYLVANIA PERSPECTIVE:
Lastly, Pennsylvania recognizes that duty of an actor who attempts to rescue another to do so reasonably. In Filter vs. McCabe, 1999 Pa. Super. 143, 733 A.2d 1274, 1277 (Pa. Super. 1999), appealed denied, 563 Pa. 645, 758 A.2d 1200 (2000) the appellant fell and smacked his head on a concrete floor in the homeowner’s basement. The homeowner assisted the appellant by waking him and placing him on the couch. The next day the appellant awoke in the morning and proceeded home. Id. The homeowner called the appellant’s home to see if he had made it home safely. When the homeowner spoke to the appellant’s wife, she told him that her husband was sleeping, the homeowner, however, did not inform the appellant’s wife that her husband had been knocked unconscious the previous night. The homeowner called again an hour later, at which time he informed the appellant’s wife of the fall. The appellant was rushed to the hospital but had already suffered permanent brain damage. Id. The trial court dismissed the appellant’s complaint. This Court reversed the trial court and reinstated the complaint. 733 A.2d at 1279. This Court held that because the homeowner had taken steps to assist the appellant once he was injured, he had a duty to do so in a reasonable manner consistent with §324 of the Restatement (Second) of Torts. 733 A.2d at 1278.
American Law Institute/pleadings/102003-jss (final draft)
1 The Chief Reporter, Professor Green, has indicated that he will include some of the Pennsylvania materials suggested herein.
Clifford A. Rieders is a partner in the Williamsport law firm Rieders, Travis, Humphrey, Harris, Waters & Waffenschmidt and is a Past President of the Pennsylvania Trial Lawyers Association.