NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P PATRICK A. MURRAY, NANCY J. MURRAY AND WILLIAM P. MURRAY, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellants ALBRIGHT COLLEGE, v. Appellee No MDA 2012 Appeal from the Order Dated September 19, 2012 In the Court of Common Pleas of Berks County Civil Division at No(s): BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J. * MEMORANDUM BY MUNDY, J.: FILED APRIL 01, 2014 Appellants, Patrick A. Murray, Nancy J. Murray and William P. Murray (collectively the Murrays), appeal from the September 19, 2012 order granting the motion for summary judgment filed by Appellee, Albright College (Albright), and dismissing their complaint with prejudice. After careful review, we reverse and remand for further proceedings. The trial court summarized the relevant factual and procedural history of this case as follows. The following are the facts gleaned from the record. [Patrick] was a freshman student at [Albright] in He was twenty years old at the time that this case was commenced. With the permission of his parents, [Nancy] and [William], Patrick [Murray] * Retired Senior Judge assigned to the Superior Court.

2 lived on campus. [Albright] assigned him to a room in a dormitory which was on the same floor as the room of Steven Pluta and Kyle Oudinot. Steven Pluta had a juvenile record, but it was unknown to [Albright] at the time of his acceptance. On September 19, 2004, [Albright s] staff smelled marijuana outside the room share[d] by Steven Pluta and Kyle Oudinot. Staff searched their dormitory room as directed by [Albright s] Public Safety Office and seized a loaded handgun, approximately one pound of marijuana, and surveillance equipment. The students were not in their room at the time of the search. After the search, the staff found the students in the next dormitory room. Since it was a private search, staff did not turn [the confiscated items over] to the city police; however, the Berks County District Attorney s office took possession of all of the confiscated items. Mr. Pluta informed the [Albright] Public Safety Office that his roommate, Mr. Oudinot, was completely ignorant of Mr. Pluta s possession of the handgun and marijuana. [Albright] immediately suspended Mr. Pluta and made him surrender his key to the dormitory. He was then escorted to his vehicle. He consented to a search of his vehicle where additional contraband was found. Staff warned Mr. Pluta that he would be charged with trespassing if he were found on the campus in the future. [Albright] did not inform Mr. Pluta about the reason for the search. He and Mr. Oudinot believed that Patrick reported them to campus security. Early in the morning on September 20, 2004, Patrick received a series of instant messages that asked what had happened to Steven Pluta, asserted that Patrick would pay, and that the senders would see Patrick later that day. Patrick did not inform his resident advisor, the [Albright] Public Safety Office, or anyone on [Albright s] staff about the threatening messages. At approximately 12:45 a.m., Patrick heard two males in the hallway near his dormitory room who - 2 -

3 seemed to be counting room numbers. Patrick opened his door to see what was happening because he was curious. He saw two males who were not residents of the dormitory. The younger male, a juvenile, asked if he was Patrick, and Patrick stated that he was. The older male, an adult, then punched him in the mouth, jumped on him, kicked him, and beat him. Patrick sustained injuries to his face, teeth, hip, abdominal area, kidneys, and back. The attackers fled in Steven Pluta s car. It was later learned that Mr. Oudinot permitted the assailants access to the building. Trial Court Opinion, 1/24/13, at 1-3. On September 18, 2006, the Murrays filed a civil complaint against Albright. Patrick pled one count each of negligence and gross negligence against Albright. Nancy and William pled a claim for their pecuniary losses as a result of the medical bills from Patrick s injuries. On October 10, 2006, Albright filed preliminary objections in the nature of a demurrer to the gross negligence count. On November 8, 2006, the trial court entered an order sustaining Albright s preliminary objections and dismissing the gross negligence count of the complaint with prejudice. 1 On June 12, 2012, Albright filed its motion for summary judgment on all remaining counts of the complaint. The Murrays filed their response and cross-motion for summary judgment on August 13, On September 19, 2012, the trial court entered an order granting Albright s summary judgment motion, denying the Murrays cross-motion for summary judgment and dismissing 1 The Murrays do not challenge this determination on appeal

4 the Murrays complaint. On October 11, 2012, the Murrays filed a timely notice of appeal. 2 On appeal, the Murrays raise the following two issues for our review. I. Whether it was [an] error of law or an abuse of discretion to find, as a matter of law, that it was not foreseeable that apparent drug dealers found to have a loaded gun, bullets, surveillance equipment and substantial amounts of marijuana in a college dormitory room would retaliate against a perceived snitch living near them[?] II. Whether it was [an] error of law or an abuse of discretion to find, as a matter of law, that a student who relied upon [Albright s] descriptions of safety on campus and the nature and extent of security provided by its public safety department, and who had not been warned by [Albright] that a loaded gun, substantial amounts of marijuana, and surveillance equipment had been found in the room across the hall from his, assumed the risk of being beaten in his dormitory room after he and three other students blew off instant messages sent by a person unknown to him, and when he opened the door wider to his room to see who was coming down the hallway[?] The Murrays Brief at 2. We begin by noting our well-settled standard of review. [O]ur standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law[,] and our scope of review is plenary. Petrina v. Allied Glove Corp., 46 A.3d 2 The Murrays and the trial court have complied with Pa.R.A.P

5 795, (Pa. Super. 2012) (citations omitted). We view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Barnes v. Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 736 (Pa. Super. 2009) (citation omitted). Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Id. The rule governing summary judgment has been codified at Pennsylvania Rule of Civil Procedure , which states as follows. Rule Motion After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law Pa.R.C.P (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Babb v. Ctr. Cmty. Hosp., - 5 -

6 47 A.3d 1214, 1223 (Pa. Super. 2012) (citations omitted), appeal denied, 65 A.3d 412 (Pa. 2013). Further, failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Id. Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied. Id., citing Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa. Super. 2011), quoting Jones v. Levin, 940 A.2d 451, (Pa. Super. 2007) (internal citations omitted). Cadena v. Latch, 78 A.3d 636, (Pa. Super. 2013). In their first issue, the Murrays argue that the trial court erred in granting Albright s motion for summary judgment when it concluded that the assault on Patrick was not foreseeable. The Murrays Brief at 13. The trial court concluded that the Murrays presented no convincing evidence that [Albright] should have known that any revenge would have been sought against him or any other student. Trial Court Opinion, 1/24/13, at 5. The Murrays counter that the record contains sufficient evidence to raise a jury question. The evidence which was presented indicated that drug dealers were operating out of the room across - 6 -

7 the hall from Patrick; that the drug dealers had such a substantial operation that there was a loaded gun, bullets, surveillance equipment, a considerable amount of marijuana and paraphernalia in their room; that it was foreseeable that [] Pluta and Oudinot would try to punish a person they deemed to be responsible for the search of their room; that Albright was aware of rumors that there was a snitch ; and that Albright [] was aware of rumors that Patrick [] was the snitch. The Murrays Brief at 14. The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm to the injured person, resulting from his act. Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289, 290 (1951) (citation omitted). Foreseeability is the likelihood of the occurrence of a general type of risk; it does not mean the likelihood of the occurrence of the precise chain of events leading to an injury. Huddleston v. Infertility Center of America, Inc., 700 A.2d 453, 460 (Pa.Super.1997); see also Thornton v. Weaber, 380 Pa. 590, 112 A.2d 344, 347 (1955) ( What must be foreseen, in order to establish negligence, is harm in the abstract, not harm in the concrete. ). A defendant is not required to guard against every possible risk; however, he must take reasonable steps to guard against generally foreseeable hazards. Huddleston, 700 A.2d at 460 (citation omitted). Polett v. Pub. Commc ns., --- A.3d ---, 2013 WL , *5 (Pa. Super. 2013) (en banc). Our Supreme Court has explained a property owner s duty to its tenant when it comes to preventing criminal acts as follows. Absent therefore an agreement wherein the landlord offers or voluntarily proffers a program, we find no general duty of a landlord to protect tenants against criminal intrusion. However, a landlord may, as indicated, incur a duty voluntarily or by specific - 7 -

8 agreement if to attract or keep tenants he provides a program of security. A program of security is not the usual and normal precautions that a reasonable home owner would employ to protect his property. It is, an extra precaution, such as personnel specifically charged to patrol and protect the premises. Personnel charged with such protection may be expected to perform their duties with the usual reasonable care required under standard tort law for ordinary negligence. When a landlord by agreement or voluntarily offers a program to protect the premises, he must perform the task in a reasonable manner and where a harm follows a reasonable expectation of that harm, he is liable. The duty is one of reasonable care under the circumstances. A tenant may rely upon a program of protection only within the reasonable expectations of the program. He cannot expect that a landlord will defeat all the designs of felony. He can expect, however, that the program will be reasonably pursued and not fail due to its negligent exercise. A tenant may not expect more than is offered. He can only expect the benefits reasonably expected of the program as offered and that that program will be conducted with reasonable care. Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984) (footnote omitted). Additionally, this Court has explained that the touchstone in determining if a program of security exists is whether or not the program promises to provide an additional factor of safety. Reider v. Martin, 519 A.2d 507, (Pa. Super. 1987), appeal denied, 535 A.2d 83 (Pa. 1987). We have cautioned trial courts not to read program of security too narrowly. Id. at

9 In the case sub judice, the record contains a statement from Albright s public safety department s mission statement which states that [t]he Public Safety Department is committed to providing an educational environment, which ensures that the safety of students, faculty, staff, and guests is protected within the available resources and through the adherence of rules and regulations promulgated by [Albright]. The Murrays Response to Albright s Motion for Summary Judgment, 7/12/12, Exhibit 10, at 1. The record also contains Albright s Students Rights and Responsibilities which includes the policy that [a]s a student of Albright [], you are expected to abide by all Federal, Commonwealth and local laws. (Alleged violations of these laws will be referred to the appropriate court of police authority.) Id. at Exhibit 10, at 2 (emphasis in original). Additionally, it is not in dispute that Albright knew that a substantial amount of marijuana, drug paraphernalia, surveillance equipment, a loaded gun, and ammunition were recovered from Pluta and Oudinot s room. However, despite this obvious evidence of substantial criminal activity, Albright did not follow its own policy and immediately refer these violations to law enforcement for arrest and prosecution. To the contrary, no arrest was made until after Patrick was assaulted. We also note that it is undisputed in the record that Patrick s room was not only in the same residence hall and on the same floor, but was directly across the hall from Pluta and Oudinot s room. Although it may be true that - 9 -

10 Patrick did not inform Albright of the threats he received, it does not alter the conclusion that there was substantial evidence from which a jury could conclude that retaliation against a student living in Walton Hall, on that floor, was within the general type of risk that Albright s program of safety promised to protect against, and as a result was foreseeable. See Polett, supra. Based on these considerations, viewing the record in the light most favorable to the Murrays as the non-moving party, there was a dispute of material fact as to whether Albright s program of security worked perfectly as the trial court concluded. Therefore, the trial court erred in granting Albright s motion for summary judgment. See Cadena, supra. In their second issue, the Murrays aver that the trial court erred when it concluded in the alternative that even assuming arguendo that a duty existed, Patrick assumed the risk of his own injury because he did not seek help when he received anonymous threats and when he opened the door to his room to see who was in the hallway. The Murrays Brief at 15. This Court has observed that [t]he doctrine of comparative negligence as set forth in 42 Pa.C.S.A. 7102(a) (b) has superseded, in large part, the common law doctrine of assumption of the risk. Bell v. Dean, 5 A.3d 266, 268 (Pa. Super. 2010). Although the legislature has retained it for some exceptions not relevant here, our Supreme Court has held that implied assumption of the risk has become part of the duty analysis for the trial court and not as part of the case to be determined by the jury. Zachardy

11 v. Geneva Coll., 733 A.2d 648, 650 (Pa. Super. 1999), appeal denied, 751 A.2d 193 (Pa. 2000), citing Howell v. Clyde, 620 A.2d 1107, (Pa. 1993) (plurality). In this case, the trial court relied on our decision in Zachardy. In Zachardy, the plaintiff was playing center field in a baseball game on the appellee s field during an away game. Zachardy, supra at 649. During the game, [Zachardy], while in pursuit of a fly ball, stepped in a divot/hole/imperfection in the grass-covered outfield. Id. As a result, Zachardy sustained serious injuries to his right knee. Zachardy s complaint alleged that the college was negligent insofar that it had a duty to keep and maintain the ball-field in a reasonably safe condition. Id. The trial court granted the college s motion for summary judgment on the theory that the college did not owe Zachardy a duty of care. This Court affirmed concluding that the record showed Zachardy was aware of the risk of the existing divots in the field and voluntarily faced the same by playing in the scheduled game. Id. at 651. Citing to our Supreme Court s plurality opinion in Howell, the Zachardy Court noted [w]here [a plaintiff] voluntarily and with the awareness of specific risks inherent in the activity proceeds in the face of a known risk, he absolves the appellee from a duty to protect him from injuries thus sustained. Id., citing Howell, supra at As a result, this Court affirmed the trial court s conclusion that the college owed no duty to Zachardy. Id

12 Turning to the instant case, we find the trial court s reliance on Zachardy unpersuasive. Although playing an intercollegiate sport might involve some assumption of the risk of injury, we cannot conclude that the same applies to opening a college dormitory door. While it may have been more prudent for Patrick to not open his door and to forward the threats he received to campus police, we do not believe it automatically follows that Patrick assumed the risk of being injured, and therefore eliminated Albright s duty. As a result, again viewing the record in the light most favorable to the Murrays, we conclude they are entitled to relief on their second issue as well. Based on the foregoing, we conclude that the trial court abused its discretion when it granted Albright s motion for summary judgment and dismissed the Murrays complaint with prejudice. See Cadena, supra. Accordingly, the trial court s September 19, 2012 order is reversed, and the case is remanded for further proceedings, consistent with this memorandum. Order reversed. Case remanded. Jurisdiction relinquished. Judge Olson files a concurring and dissenting memorandum. Judge Strassburger files a concurring memorandum in which Judge Mundy joins. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/1/