Freer v. Allied Services et al
Filing
17
MEMORANDUM and ORDER granting in part and denying in part 10 12 Motion to Dismiss; GRANTED re parties Niemiec and Spencer are dismissed and DENIED in all other respects.; Signed by Honorable James M. Munley on 11/7/11 (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ASHLEIGH FREER,
:
No. 3:11cv281
Plaintiff
:
:
(Judge Munley)
v.
:
:
ALLIED SERVICES;
:
RED DEUCE, LLC;
:
FRANK NIEMIEC and
:
DONALD SPENCER,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition are motions to dismiss Plaintiff
Ashleigh Freer’s complaint filed by all defendants. The motions have been
briefed and are ripe for disposition.
Background
Plaintiff, a paraplegic, does not have the use of her legs and uses a
wheelchair. (Doc. 9, Am. Compl. ¶ 7). Plaintiff leased a residence in
Wysox, Pennsylvania, from Defendant Red Deuce LLC. (Id. ¶ 11).
Defendant Frank Niemiec is a principal of Red Deuce, LLC and Defendant
Donald Spencer is the maintenance man employed by Red Deuce and/or
Niemiec. (Id. ¶ 9).
Plaintiff moved into the residence on March 1, 2009. (Id. ¶ 11). After
she began living at the residence, plaintiff noticed that the temperature of
the hot water in the sink was extraordinarily high. (Id. ¶ 12). She
complained to Defendant Spencer about the water temperature. (Id. )
Defendant Allied Services (“Allied”) is an agency responsible for the
care, protection and safety of plaintiff due to her underlying medical
conditions. (Id. ¶ 27). Allied assigns case workers to ensure that plaintiff
is safe in her home. (Id. ¶ 28). These case workers are Allied’s
employees. (Id.)
On April 11, 2009 plaintiff attempted to shower at the premises with
some hardware she had obtained to make showering possible. (Id. ¶ 1415). In the process, she sustained serious burns to her right foot due to
the temperature of the water. Based upon these facts, plaintiff filed suit on
February 9, 2011. (Doc. 1, Compl.). Plaintiff filed an amended complaint
on April 6, 2011. (Doc. 9). The amended complaint asserts negligence
claims against all the defendants. The defendants move to dismiss the
amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The matter is fully briefed and ripe for disposition.
Jurisdiction
Plaintiff is a citizen of New York state, and the defendants are
citizens of the Commonwealth of Pennsylvania. Therefore, this Court has
jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332.
Because we are sitting in diversity, the substantive law of Pennsylvania
shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154,
158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).
Standard of review
This case is before the court pursuant to defendants' motions to
dismiss for failure to state a claim upon which relief can be granted filed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. When a
12(b)(6) motion is filed, the sufficiency of the allegations in the complaint is
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tested. Granting the motion is appropriate if, accepting as true all the facts
alleged in the complaint, the plaintiff has not pleaded “enough facts to state
a claim to relief that is plausible on its face,” or put another way, “nudged
[his or her] claims across the line from conceivable to plausible.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Third Circuit interprets
Twombly to require the plaintiff to describe “enough facts to raise a
reasonable expectation that discovery will reveal evidence of” each
necessary element of the claims alleged in the complaint. Phillips v. Cnty.
of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S.
at 556). Moreover, the plaintiff must allege facts that “justify moving the
case beyond the pleadings to the next stage of litigation.” Id. at 234-35.
In relation to Federal Rule of Civil Procedure 8(a)(2), the complaint
need only provide “‘a short and plain statement of the claim showing that
the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests,’” Twombly, 550
U.S. at 555 (citation omitted). “[T]he factual detail in a complaint [cannot
be] so undeveloped that it does not provide a defendant the type of notice
of claim which is contemplated by Rule 8.” Phillips, 515 F.3d at 232
(citation omitted). “Rule 8(a)(2) requires a ‘showing’ rather than a blanket
assertion of an entitlement to relief.” Id.
The issue is whether the facts alleged in the complaint, if true,
support a claim upon which relief can be granted. In deciding a 12(b)(6)
motion, the court must accept as true all factual allegations in the
complaint and give the pleader the benefit of all reasonable inferences that
can fairly be drawn therefrom, and view them in the light most favorable to
the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d
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Cir.1997). To decide a motion to dismiss, a court generally should
consider only the allegations in the complaint, exhibits attached to the
complaint, matters of public record, and documents that form the basis of a
claim. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426
(3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993).
Discussion
Defendants Red Deuce, Niemiec and Spencer (collectively “the
landlord defendants”) filed a motion to dismiss, and Defendant Allied also
filed a motion to dismiss. We will discuss each separately.
I. Motion to dismiss of Red Deuce, Niemiec and Spencer
Defendants raise several issues. We will address each in turn.
1. Are the landlord defendants entitled to dismissal because
plaintiff has failed to plead sufficient facts to implicate a duty?
Under Pennsylvania law, for a defendant to be liable for negligence,
a plaintiff must establish “that the defendant had a duty to conform to a
certain standard of conduct, that the defendant breached that duty, that
such breach caused the injury in question, and actual loss or damage.
Whether a defendant owes a duty of care to a plaintiff is a question of law
in Pennsylvania.” Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 61 (3d Cir.
2009) (internal quotation marks and citations omitted).
The landlord defendants argue that plaintiff has pled insufficient facts
to establish a duty owed from the landlords to the plaintiff/tenant. We
disagree. Generally, a landlord does not owe a duty to a tenant to warrant
that the leased premises are in tenantable condition. Where the landlord
retains control over part of the leased premises, however, he can be liable
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for harm caused by a dangerous condition existing on the portion over
which he retained control “if by the exercise of reasonable care he could
have discovered the condition and the risk involved, and made the
condition safe.” Fralish v. A.O. Smith Corp., 1333 MDA 202, 2004 WL
1587559 at * 11 (Pa. Super. Ct. Jul. 7, 2004) (citing Smith v. M.P.W. Realty
Co., Inc., 225 A.2d 227, 229 (1967).
In this case, plaintiff’s complaint, which we must accept as true for
purposes of a motion to dismiss, indicates that “Defendants Red Deuce,
Spencer and Niemiec, at all times during Plaintiff’s tenancy exercised
control over the water heater that managed the temperature for the water
in Plaintiff’s residential unit.” (Doc. 1, Compl. ¶ 19). In fact, subsequent to
the scalding at issue, and consistent with their control over the water
heater, these defendants turned down its temperature. (Id. ¶ 17).
Defendant Spencer told plaintiff that he had initially turned up the water
heater temperature because the tank on the heater was very small and
unless he set the temperature high, the heater did not generate enough hot
water for the bathroom. (Id. ¶ 18).
These assertions are sufficient to establish that defendant exercised
control over the water heater so as to give rise to a duty. Additionally,
plaintiff indicates that prior to the scalding, she had complained to
Defendant Spencer about the high temperature of the water. (Id. ¶ 12).
Accordingly, plaintiff alleges that defendants retained controlled over
the water heater and were on actual notice of the dangerous condition.
Plaintiff has thus sufficiently pled a negligence cause of action against the
landlord defendants, and their motion to dismiss on this ground will be
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denied.1
2. Are Defendants Spencer and Niemiec entitled to dismissal
because they are principals of an LLC and Pennsylvania Law
precludes individual liability of members of an LLC?
In the instant case, the lease is between Defendant Red Deuce, LLC
and plaintiff. Defendants Niemiec and Spencer are members of the LLC.
Niemiec and Spencer argue that the court should dismiss the case as
against them because the law provides for no liability for LLC members in
actions brought against the LLC. Plaintiff agrees with defendants’ position
that members of an LLC cannot be sued on the basis of vicarious liability
for the torts of the LLC. See 15 PA. CONS. STAT. ANN. § 8991. Plaintiff
argues that she sues Spencer and Niemiec as individuals, not as members
of the LLC.
We are unconvinced by plaintiff’s argument. Nothing in the complaint
indicates an independent duty owed from Niemiec or Spencer to the
plaintiff. Their relationship and the duty owed to the plaintiff arises
because of the lease she entered into with the LLC. Accordingly, Niemiec
and Spencer will be dismissed from the action.2
Both plaintiff and the landlord defendants present an analysis of the
five factors that Pennsylvania Supreme Court has set forth to establish
whether a duty is owed in various relationships. See, e.g., Morrison v.
Wells Fargo Bank N.A., 711 F. Supp. 2d 369, 383 (M.D. Pa. 2010). The
court need not address this general test as the courts have already
addressed the particular relationship at issue, that is landlord/tenant.
1
The landlord defendants also argue that the amended complaint
should be dismissed because plaintiff filed it without permission from the
court. We will deny this ground for dismissal and sua sponte grant leave
for the filing of the amended complaint. The plaintiff should have indeed
2
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II. Defendant Allied’s motion to dismiss
Defendant Allied also filed a motion to dismiss plaintiff’s complaint.
As noted above, to assert a proper negligence cause of action, plaintiff
must allege that the defendant owed her a duty of care.
Allied argues that it owed no duty of care to the plaintiff. In its brief, it
indicates: “[Allied] acted merely as an intermediary payroll company for the
Plaintiff. The Plaintiff hired her own in-home care attendant, maintained
the schedule and type of activities that the in-home care attendant was to
provide and maintained exclusive right to hire and fire the attendant. The
Plaintiff would merely submit billing statements to [Allied] so that [Allied]
could obtain payment through the Department of Public Welfare.” (Doc.
14, Def. Allied’s Br. at 4-5).
Although, Defendant Allied may ultimately be correct, we cannot at
this stage of the proceedings credit its version of the facts. We must
accept as true, the plaintiff’s complaint. The complaint alleges as follows:
Defendant, Allied Services (“Allied”) is an agency
that was responsible for the care, protection, and
safety of Plaintiff, due to her underlying medical
conditions.
Specifically, Defendant assigned case
workers, who were employees of Allied, to make
sure that Plaintiff was safe her in [sic] home.
Defendant specifically assumed the duty of
caring for Plaintiff, and making sure she was safe in
her home, and the apartment that Plaintiff was
renting from Red Deuce, LLC.
sought permission from the court to file the amended complaint. See FED.
R. CIV. P. 15(a). However, the court would have granted leave had it been
sought as the case is not very old and none of the parties would suffer
prejudice from its filing. Therefore, for purposes of judicial economy, we
will not order the plaintiff to seek leave to file the complaint. We will sua
sponte grant leave and deem the amended complaint as properly filed.
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Defendant was negligent, and in derogation of
its duty, in the following respects:
(a) by failing to check to make sure the hot
water was set to a safe temperature;
(b) by not taking reasonable precautions to
ensure the safety of Plaintiff from burns, especially
knowing of Plaintiff’s underlying medical conditions,
and her decreased physical sensations caused by
those conditions[.]
(Doc. 9, Am. Comp. ¶¶ 27-30).
Thus, it is clear that plaintiff alleges much more involvement on
behalf of Allied, than Allied presents in its version of the facts. At this
stage of the proceedings, however, we accept the plaintiff’s version of the
facts as true. We find that plaintiff’s allegations are sufficient to assert a
duty and thus a negligence cause of action against Allied. Accordingly,
Allied’s motion to dismiss will be denied.
Conclusion
For the reasons set forth above, the motion to dismiss on behalf of
Defendants Niemiec and Spencer will be granted and the motions to
dismiss will be denied in all other respects. An appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ASHLEIGH FREER,
:
No. 3:11cv281
Plaintiff
:
:
(Judge Munley)
v.
:
:
ALLIED SERVICES;
:
RED DEUCE, LLC;
:
FRANK NIEMIEC and
:
DONALD SPENCER,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 7th day of November 2011, the portion of the
Landlord Defendants’ motion to dismiss relating to Defendant Niemiec and
Spencer in their individual capacities is hereby GRANTED and Defendant
Niemiec and Defendant Spencer are dismissed from this case. The
motions to dismiss (Docs. 10 & 12) are DENIED in all other respects.
Additionally, plaintiff’s amended complaint is deemed properly filed.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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