Filing 51


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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA G A L E FITZPATRICK and THE E S T A T E OF COLIN FITZPATRICK, P la in tif f s , v. U N IV E R S A L TECHNICAL IN S T IT U T E , INC. D e f e n d a n t. C iv il Action No. 08-1137 M EM ORANDUM August 11, 2010 P o lla k , J. In this diversity suit, defendant Universal Technical Institute ("UTI"),which runs te c h n ic a l training schools throughout the country, has filed a motion to dismiss (docket n o . 46) the second amended complaint (docket no. 43) of plaintiff Gale Fitzpatrick, the m o th e r of the decedent Colin Fitzpatrick, and the Estate of Colin Fitzpatrick. Plaintiffs h a v e responded (docket no. 47). UTI has filed a reply to plaintiffs' response (docket no. 5 0 ). I. Background and Procedural History T h e relevant facts of this case are as alleged in the second amended complaint. Plaintiff Gale Fitzpatrick is the mother of Colin Fitzpatrick ("Fitzpatrick"), and serves as 1 administratrix of his estate, which is also a plaintiff. Second Am. Compl. ¶¶ 2-3. On J a n u a ry 30, 2006 Fitzpatrick was driving home on Route 202 when Jean DeFague's (" D e F a g u e " ) car struck his car and killed him. Id. at ¶¶ 10-13. At the time of the a c c id e n t DeFague was a student at UTI's Exton, Pennsylvania campus. Mot. Dismiss P l.'s Second Am. Compl. ¶ 8. The accident occurred approximately 12.7 miles from the c a m p u s . Id. DeFague was not driving on school business or in a UTI-provided vehicle. Id. at ¶¶ 9-10. UTI training schools teach students automotive maintenance and repair. Plaintiffs a lle g e that UTI students, including DeFague, drove their cars recklessly at high speeds in th e surrounding areas. Second Am. Compl. ¶ 14. Plaintiffs further allege that UTI was a w a re of its students' conduct because it had received complaints from a local business a n d the Chief of Police of Upper Uwchlan Township. Id. at ¶¶ 14-16. Furthermore, n e w s p a p e rs reported students' reckless conduct. Id. at ¶ 18. As a result of its students re c k le ss driving, UTI took steps to control the students' behavior. Id. at ¶ 19. The school s o u g h t community input and, in a memorandum, advised the student body that a police c ita tio n of speeding or reckless driving would result in immediate suspension or te rm in a tio n . Id. at ¶ 21. It also advised that identification of reckless driving by a staff or c o m m u n ity member would lead to disciplinary action, including possible termination f ro m the school. Id. UTI also: (1) added a security guard to identify reckless drivers; (2) re q u ire d all students to sign a waiver stating that police would inform UTI of all student 2 run-ins; and (3) updated its Student Success Guide, a school handbook for incoming s tu d e n ts providing useful information and school policies, to include disciplinary actions f o r reckless driving. Id. at ¶¶ 22, 25-27. DeFague had a history of driving violations, including two speeding citations in 2 0 0 5 . Id. at ¶¶ 35-36. Plaintiffs contend that, in spite of its policies to curb reckless d riv in g through disciplinary action, UTI was aware of DeFague's driving record and f a ile d to punish or expel him. Id. at ¶ 38. Plaintiffs further allege that UTI assumed a d u ty of care to the community because of its disciplinary policies and public statements s u rro u n d in g these policies. Id. at ¶ 46. Plaintiffs filed a complaint in the Chester County Court of Common Pleas seeking d a m a g e s from UTI for negligence, wrongful death, and survival. Invoking this court's d iv e rsity jurisdiction, UTI removed the suit to this court (docket no. 1). After removal, U T I filed a motion to dismiss (docket no. 12) asserting that plaintiffs could not establish th a t UTI owed Fitzpatrick a duty of care. In a memorandum of August 18, 2008, I denied th e motion (docket no. 21) because the initial complaint alleged that UTI was aware that its students, including DeFague, used its classrooms and the material it taught to modify th e ir cars so that they could drive at a faster speed. Plaintiffs filed an amended complaint (d o c k e t no. 33) and UTI filed a motion to dismiss (docket no. 34) which I granted. Id. at * 1 3 . The dismissal was without prejudice to plaintiffs' ability to further amend the c o m p la in t. Id. Plaintiffs then filed a second amended complaint (docket no. 43) and UTI 3 filed the instant motion. I I . Analysis A. Rule 12 (b)(6) Motion to Dismiss Standard D e f e n d a n t moves the court, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss plaintiffs' second amended complaint for failure to state a claim upon which re lie f can be granted. To survive a motion to dismiss, "a complaint must contain s u f f ic ie n t factual matter, accepted as true, to state a claim a claim to relief that is plausible o n its face." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (in te rn a l quotations omitted). In reviewing this motion to dismiss, the court must accept a s true all factual allegations in the complaint and draw from it all reasonable inferences, c o n s tru e d in the light most favorable to the plaintiffs. Nami v. Fauver, 82 F.3d 63, 65 (3d C ir. 1996). UTI contends that, based upon the current pleadings, plaintiffs cannot establish th a t UTI was under any obligation to control the activities of its students or that it a s s u m e d a duty of care to the community, or to Fitzpatrick, because of its public d is c ip lin a ry policies. Plaintiffs respond that, "by its affirmative actions, UTI assumed a d u ty to protect the public, and the public relied to its detriment. . . . [U]TI failed to use re a s o n a b le care in administering the duty it had affirmatively undertaken, thereby causing its students' dangerous driving to persist and the death of Colin Fitzpatrick." Pl.s' Resp. a t 7. UTI responds that, "[p]laintiff[s'] argument appears to be merely an attempt to 4 distract the Court from the principal issue presented by UTI's motion­does a school have c u s to d y or control over an adult student driving more than twelve (12) miles from campus a n d unrelated to any school function so as to create a duty of care?" Defendant's Resp. at 2 -3 . UTI continues, "Plaintiff[s] argues instead that UTI `assumed a duty of care.' . . . [ h ]o w e v e r, this Court previously addressed and rejected Plaintiff's `assumption of care' a rg u m e n t." Id. at 3. Under Pennsylvania law, the primary element in a negligence cause of action is w h e th e r the defendant owed the plaintiffs a duty of care. Althaus ex rel. Althaus v. C o h e n , 756 A.2d 1166, 1168 (Pa. 2000) (citation omitted). A duty of care can be e s ta b lis h e d in a liability suit, by, inter alia: (1) a special relationship between the parties, o r (2) an assumption of a duty to care. See Bradshaw v. Rawlings, 612 F.2d 135, 140-41 (3 d Cir. 1979) (analyzing a college's liability in an off-campus car crash between two s tu d e n ts , one who was underage and intoxicated against school policies, through a special re la tio n s h ip and an assumption of a duty to care perspective). B. Enrollment in an Institution of Higher Education does not Create a Special R e la tio n sh ip Between a Student and the School T h e general rule in Pennsylvania, regarding the relationship between a college and its students, is that no special relationship exists. See Bradshaw, 612 F.2d at 140.. The T h ird Circuit first held in Bradshaw that, "[c]ollege administrators no longer control the b ro a d arena of general morals. . . . [t]oday students vigorously claim the right to define a n d regulate their own lives." Bradshaw, 612 F.2d at 140. Bradshaw, like the present 5 case, involved an injury off-campus caused by students allegedly engaged in an activity ille g a l under Pennsylvania law and prohibited by the school. The court found that b e c a u s e the students' conduct off campus was unforeseeable, the school could not control it. Id. at 141. Since Bradshaw there has been a long line of cases reaffirming that institutions of h ig h e r education are not responsible for their students' off-campus conduct while acting a s private individuals. Such an understanding has particular force with respect to v o c a tio n a l or professional schools, where the students are, as a general matter, under re la tiv e ly little supervision. See Fitzpatrick, 2009 U.S. Dist. LEXIS 71426, at *9; Milliard v. Osborne, 611 A.2d 715, 721 (Pa. Super. Ct. 1992) (finding that it would be in a p p ro p ria te to impose upon a college a custodial relationship with its students as it c a n n o t control their behavior through school policies). C. An Institution of Higher Education does not Assume a Duty of Care to Students or T h ird Parties when it Creates School Policies Which Benefit the Public P la in tif f s ' second amended complaint asserts that "UTI assumed a duty of care by ta k in g affirmative steps to protect the community against the conduct of its students by, in p a rt, promulgating policies designed to curb such conduct, and by publicly announcing th a t it would enforce those policies to protect the public." Second Am. Compl. ¶ 46. Pennsylvania has adopted the Restatement (Second) of Torts § 324A. See Cantwell v. A lle g h e n y Cnty, 483 A.2d 1350, 1353 (Pa. 1984) ("Although this Court has never had o c c a s io n to consider § 324A of the Restatement, the essential provisions of this section 6 have been the law in Pennsylvania for many years."). Section 324A states: O n e who undertakes, gratuitously or for consideration, to render services to a n o th e r which he should recognize as necessary for the protection of a third p e rs o n or his things, is subject to liability to the third person for physical h a rm resulting from his failure to exercise reasonable care to protect his u n d e rta k in g , if (a) his failure to exercise reasonable care increases the risk o f such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the o th e r or the third person upon the undertaking. R e sta te m e n t (Second) of Torts § 324A (1965). Plaintiffs contend that the public relied u p o n UTI's statements that it would enforce its policies, which it failed to do through d is c ip lin a ry action. Second Am. Compl. ¶¶47-48. UTI did not assume a duty of care to the public through its school policies aimed at p re v e n tin g reckless driving. As I noted in ruling on plaintiffs' first amended complaint: This appears to be the same kind of claim lodged by plaintiffs in Bradshaw a n d Collette [v. Tolleson Unified School District, No. 214, 54 P.3d 828, 836 (A riz . Ct. App. 2002)], that, by enacting and maintaining policies p ro h ib itin g certain kinds of off-campus conduct by students, an educational in s titu tio n assumes a duty to any third parties who suffer injury when such p o lic ie s allegedly fail to prevent a student from acting negligently or re c k le s s ly. For the reasons outlined above, such a theory cannot prevail in th is case. F itz p a tr ic k , 2009 U.S. Dist. LEXIS 71426, at *10-11. Plaintiffs assert that UTI breached a duty of care because: (1) the public relied on UTI's policies which it promoted th ro u g h o u t the community, and (2) UTI failed to enforce these policies. Assuming that members of the public actually relied upon UTI's policies, the In s titu te is still not liable to plaintiffs. Creation of school policies that punish individuals 7 for conduct made illegal under state law does not place an institution of higher education in a position of assuming a duty of care. See Bradshaw, 612 F.2d at 140 (finding that the c o lle g e 's regulation prohibiting underage drinking did not place the college in a custodial re la tio n s h ip with its students or indicate that it had voluntarily assumed such a re la tio n s h ip , and therefore the college was not liable for the injuries suffered by a student a f te r he was hit by an underage peer who had been drinking at an off-campus class p ic n ic ); see also Booker v. Lehigh Univ., 800 F. Supp. 234, 240 (E.D. Pa. 1992) ("[E]ven if Lehigh knowingly failed to prevent alcohol consumption, we could not, nor would we, f in d a duty in loco parentis."). As a matter of law UTI did not assume a duty of care to the public by establishing a n d implementing policies to curb reckless driving. UTI cannot be held liable for a s tu d e n t's reckless driving 12.7 miles from the campus in a vehicle not belonging to the In s titu te . C. D e riv a tiv e Claims P la in tif f Gale Fitzpatrick asserts a claim to recover damages for the death of her s o n under the Pennsylvania Wrongful Death Act, 42 Pa. Cons. Stat. § 8301. Second Am. C o m p l. ¶ 52. As this claim is premised upon UTI's negligence it fails as a matter of law. See Kagan v. Harley Davidson, Inc., No. 07-0694 2008 U.S. Dist. LEXIS 32747, at *2 n .1 (E.D. Pa. Apr. 22, 2008) (finding that plaintiff's wrongful death claim was derivative o f its negligence claim and would only survive summary judgment if the negligence claim 8 did). Gale Fitzpatrick further asserts a claim for damages pursuant to the Pennsylvania S u rv iv a l Act, 42 Pa. Cons. Stat. § 8302. Second Am. Compl. ¶¶ 57-59. This claim s im ila rly fails as a matter of law because it is premised upon UTI's negligence. I I I . Conclusion For the reasons stated above, defendant's Motion to Dismiss will be granted. As p la in tif f s , despite the opportunity to amend for a second time, have been unable to state a c la im on which relief can be granted, an attempt to frame a third amended complaint w o u ld be futile. See Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) ("We h a v e instructed that if a complaint is vulnerable to 12(b)(6) dismissal, a district court must p e rm it a curative amendment, unless an amendment would be inequitable or futile."). A c c o rd in g ly, dismissal of plaintiffs' second amended complaint will be with prejudice. An appropriate order accompanies this memorandum. 9

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