Moranko, F. v. Downs Racing (dissenting)

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J-A24014-13 2014 PA Super 128 FAYE M. MORANKO, ADMIN. OF THE ESTATE OF RICHARD L. MORANKO, DECEASED IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. DOWNS RACING LP, D/B/A MOHEGAN SUN AT POCONO DOWNS Appellee No. 192 MDA 2013 Appeal from the Order January 4, 2013 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2011-CV-10312 BEFORE: PANELLA, J., MUNDY, J., and PLATT, J.* DISSENTING OPINION BY MUNDY, J.: FILED JUNE 24, 2014 I respectfully dissent. While I agree with the esteemed Majority that the issue in this case is whether Defendants owed a duty of care to Richard Moranko (Decedent), I disagree that the trial court properly concluded, as a matter of law, that there was no duty owed. Specifically, I do not believe we need to reach the issue of first impression articulated by the Majority, i.e., the general duty of a valet service when returning a vehicle to a visibly intoxicated patron. Rather, under the particular facts of this case, I conclude Appellee (Mohegan Sun) assumed such a duty as part of its internal organizational and operational policies. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A24014-13 Sun is aimed not at preventing their valets from withholding an automobile from a visibly intoxicated patron, but from keeping visibly intoxicated patrons from the Majority concludes the policies cannot create a duty on Mohegan Sun toward Decedent. Id. I disagree that the policies at Mohegan Sun were so circumscribed. During discovery, Appellant deposed Dennis Driscoll, the Director of Security and Transportation for Mohegan Sun. Brief in Opposition to Motion for Summary Judgment, 8/16/12, Exhibit I, N.T., 1/9/12. Driscoll was questioned about the training provided and policies pursued by Mohegan Sun respecting intoxicated patrons. Id. [Attorney for Appellant]. Do they receive training as to spotting an individual who is visibly intoxicated? [Dennis Driscoll]. Yes. Q. What kind of training do they receive and who [sic] would they receive that from? A. Well, they receive it from both, you know, internally with a supervisor but also they Alcohol Management Program. Q. So all of your security guards attend the RAMP class? A. To a degree. We maintained an over 50 percent staffing level that is trained in it. I would -2- J-A24014-13 70 to 80 percent. Q. And why is it important for security guards to have an understanding of the RAMP program and to spot patrons who are visibly intoxicated? A. The main responsibility -- the main reason for that is because the gaming -- gaming requires that w[e] deny individuals from entering or remaining present on the gaming floor if they are we have to remove the individual from the gaming floor. Id. at 15-16. Driscoll further testified about the procedures security personnel are to follow upon noticing an intoxicated patron and the purpose behind those procedures. Driscoll testified specifically as follows. [Attorney for Appellant]. And what are they to do with a guest who is visibly intoxicated? [Dennis Driscoll]. Well, the first thing that they do is they will contact Security dispatch --- to report it, contact a supervisor and also contact surveillance. And at that point the officer, we make an attempt to get the individual off the gaming floor, wait for a supervisor to arrive and he will confirm whether the individual appears to be intoxicated. At that time -- And at that point we explain to the individual that we feel that they are intoxicated and that we would no longer allow them to the gaming floor and -3- J-A24014-13 actually the house policy is that we try to get the individual home safely. Q. So is it fair to say that A. Oh, no. Id. at 17-18 (emphasis added). Driscoll testified that security personnel endeavor to dissuade intoxicated patrons from driving, attempt to secure alternate transportation, and, if unsuccessful, alert police. Id. at 18, 22, 27. Driscoll testified that most instances are handled by security personnel before a patron proceeds to the valet service. However, he also testified that the valet service personnel are instructed to watch for signs of intoxication and report the same to security. Id. at 29-30. Q. When you say stall giving them their car, is it fair to say that you have the -- within the valet ultimately bringing the car back; right? A. Q. Now, we have been talking about signs of visible intoxication. What is your understanding personally instruct intoxication? on for signs of visible A. The basic signs are somebody who staggers in their walk or somebody who slurs in their speech. -4- J-A24014-13 Q. And is it your understanding that the valet runners and the hosts at the guest kiosk center would be instructed on that? A. They are. Q. And why is that important for them to be instructed on that? A. someone to get in their car that seems to be intoxicated. Id. at 23-24. In addition to the deposition of Driscoll, Nicholas G. Keeler, a valet employed by Mohegan Sun was deposed. Brief in Opposition to Motion for Summary Judgment, 8/16/12, Exhibit J, N.T., 5/9/12. In his testimony, Keeler related that he was trained to identify indications of intoxication and to report any encounters to a supervisor. Id. at 8-10. Q. At any there, did they ever discuss with you what to do if you encounter a visibly intoxicated patron trying to get their vehicle? A. Yes. We are supposed to inform our supervisor via radio. Q. Does that instruction that you just told me, does that come from the valet who is training you? A. No. Q. Who does that instruction come from? A. supervisor,] himself. If you see somebody tha -5- J-A24014-13 intoxicated or any kind of disturbances, you know, in your surroundings, let one of us know. Q. been told to you in your initial meeting with Tecio? A. Yes. Q. After you were hired? A. Yes. Q. What types of things did Tecio tell you to look for in terms of someone who is visibly intoxicated? A. Stumbling, slurred speech word I'm looking for disoriented, you know. Q. And can that be someone who is actually getting their vehicle where those signs? A. Yeah. Q. And your duty, then, is to call the supervisor? A. First of all, we would ask them, Are you okay to drive? Do you want to come in for a cup of coffee? We can give you a ride home, call a cab. intoxicated, I would call Tecio. Q. You would call Tecio? A. Tecio or another supervisor on duty. Q. Would you call that supervisor before letting the person get into the vehicle? -6- J-A24014-13 A. Yes. If they were visibly intoxicated, yes. Id. (italics in original). Based on the foregoing, I conclude that the internal policy of Mohegan Sun was not limited to keeping intoxicated patrons from the gambling floor. Rather, the policy was broader and encompassed its admitted goal to protect intoxicated patrons from driving. To that end, Mohegan Sun employees, including but not limited to valets, were trained and instructed to, inter alia, look for indications of intoxication among patrons, advise intoxicated patrons that alternative transportation could be arranged, and if unsuccessful in persuasion, notify the appropriate police department. Thus, Mohegan Sun voluntarily assumed to render security services designed to protect patrons from the dangers of driving while intoxicated. Pennsylvania, by adopting Section 323 of the RESTATMENT (SECOND) OF TORTS (1979), recognizes that a duty may be found in a party who voluntarily assumes an undertaking. Unglo v. Zubik, 29 A.3d 810, 813 (Pa. Super. 2011). Section 323 specifies as follows. § 323 Negligent Performance of Undertaking to Render Services One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if -7- J-A24014-13 (a) his failure to exercise such care increases the risk of such harm, or reliance upon the undertaking. RESTATMENT (SECOND) OF TORTS (1979) § 323. A plaintiff need not satisfy both Subsections (a) and (b). Establishing either will suffice. Feld v. Merriam, 485 A.2d 742, 746, n. 4 (Pa. 1984). It is made clear at the outset of [] section render services to another which he should recognize reveals they were intended not to apply to scope of duty but to causal connection between the physical care. Subsections (a) and (b) permit that causal connection to be proved by evidence that as was suffered by plaintiff or by evidence that the harm was suffered because of reliance on the Hamil v. Bashline, 307 A.2d 57, 61 (Pa. Super. 1973)(Bashline I).1 We agree with the view of the Superior Court majority expressed in Bashline I that the effect of § 323(a) is to relax the degree of certitude normally case for the jury as to whether a defendant may be ____________________________________________ 1 Bashline I was overruled on other grounds by this Court in a subsequent appeal at Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978) (Bashline II). Our Supreme Court in turn reversed Bashline II while approving the analysis of the Bashline I Court relative to its interpretation of Section 323(a). Hamil v. Bashline, 392 A.2d 1280, 1286 (Pa. 1978). -8- J-A24014-13 act or omission increased the risk of harm to a in fact sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm. Hamil v. Bashline, 392 A.2d 1280, 1286 (Pa. 1978). victim Might have saved himself by taking advantage of a precaution which it has been shown defendant negligently failed to afford, courts have generally Id. at 1287, quoting F. Harper and F. James, The Law of Torts, Vol. 2, § 20.2, at 1113 (1956) (emphasis in original). Of specific relevance to the facts in this case, our Supreme Court has recognized that voluntarily providing a program of security may create a duty under Section 323. Id. at 746 (holding that a landlord who voluntarily established a security program for apartment complex could create duty of care to tenants for proper conduct of that program under RESTATMENT (SECOND) OF TORTS (1979) § 323 even though landlord was not otherwise contractually bound to do so under the lease with tenant). 2013 order granting summary judgment to Mohegan Sun. I express no opinion relative to the issue of first impression addressed by the Majority, concerning the duty of valet services in general to intoxicated patrons, as I deem the issue moot under the particular facts of this case. -9-

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