Charlie, A. v. Erie Insurance Exchange (opinion)

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J.A31043/13 2014 PA Super 188 ALBERT CHARLIE D/B/A RESTAURANT & PUB AND ZACHARY NEIDERT, v. ERIE INSURANCE EXCHANGE A/S/O JEFFREY DORN AND ROCHELLE DORN D/B/A EGYPT LAUNDROMAT, Appellant : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA 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 -2- J. A31043/13 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? -3- J. A31043/13 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). -4- 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. -5- 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 21parties [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. -6- J. A31043/13 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 wellestablished: 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 nonmoving 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 -7- J. A31043/13 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. SchloemannSiemag Aktiengesellschaft, 523 Pa. 1, 8, 564 A.2d 1244, 1248 (1989)). only when one engages in conduct which foreseeably creates an unreasonable (emphases added). Campo, 755 A.2d at 24 In Althaus, our Supreme Court set forth a non- exclusive five-factor test for determining the existence of a duty, i.e., -8- J. A31043/13 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 -9- J. A31043/13 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, judicial decision- 5 5 Id. at 653, 57 A.3d at 1245. In sum, the 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 - 10 - J. A31043/13 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. - 11 - J. A31043/13 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). parties, therefore, does not have to The relationship between the 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). - 12 - J. A31043/13 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). - 13 - J. A31043/13 A licensor-licensee relationship, however, unlike a relationship, does not involve a transfer of personal property. bailor-bailee 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 - 14 - J. A31043/13 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 Compl., 10/3/11, at 3 (unpaginated). not rags. - 15 - See, e.g. J. A31043/13 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 licensorlicensee 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 - 16 - J. A31043/13 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 1167. Althaus, 562 Pa. at 549, 756 A.2d at 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 Appellees would have to a business owner. such as 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 - 18 - J. A31043/13 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. - 19 - J. A31043/13 (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). - 20 - J. A31043/13 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 abuse false accusation of sexual 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 - 21 - J. A31043/13 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. - 22 - J. A31043/13 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. utility of laundering rags against the After weighing the social 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. - 23 - J. A31043/13 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 stressinduced 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 - 24 - J. A31043/13 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 - 25 - J. A31043/13 Commonwealthcharacterization 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. 1169. Althaus, 562 Pa. at 553, 756 A.2d at 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. Thierfelder, our Supreme examine - 26 - In J. A31043/13 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 illsuited 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. - 27 - J. A31043/13 id. at 32ed requirements. See Thierfelder, 617 Pa. at 338, 52 A.3d at 1277-78. interest in preventing fires. Appellant, however, 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 - 28 - J. A31043/13 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 Commonwealthwide 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. - 29 - J. A31043/13 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 - 30 -

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