Baumbach, R. v. Lafayette College

2022 Pa. Super. 40, 272 A.3d 83

• Court: Superior Court of Pennsylvania
• Decided: March 4, 2022
• Docket: 212 EDA 2021
• Status: Published

Opinion

J-A27038-21

2022 PA Super 40

ROBERT BAUMBACH AND LISA : IN THE SUPERIOR COURT OF BAUMBACH, AS GUARDIANS OF AUBREY : PENNSYLVANIA BAUMBACH, AN INCAPACITATED : PERSON : : Appellants : : : v. : No. 212 EDA 2021 : : LAFAYETTE COLLEGE, RICHARD : KELLIHER, AND ALLISON SOBIECH ----- : --------------------------------------------- : ---------------------------------------- : ROBERT BAUMBACH AND LISA : BAUMBACH, AS GUARDIANS OF AUBREY : BAUMBACH, AN INCAPACITATED : PERSON : : Appellants : : : v. : : : MELANIE AKINS, RAYMOND WOOD, : JOSEPHINE MILLER, DONALD MILLER, : CONCORDIA MAENNERCHOR OF THE : CITY OF EASTON PENNSYLVANIA, ROY : A. SEXTON, CANDYCE L. ELLIOTT, : JAMES GUNDERMAN, PALMER : VOLUNTEER FIRE CO., NO. 2. OF : WILSON BORO A/K/A LITTLE PALMER : PUB, AND WILSON D. KNEEBONE : :

Appeal from the Judgment Entered December 11, 2020 In the Court of Common Pleas of Lehigh County Civil Division at No(s): No. 2014-C-1769, No. 2015-C-3334

BEFORE: PANELLA, P.J., DUBOW, J., and McCAFFERY, J.

OPINION BY DUBOW, J.: FILED MARCH 4, 2022 J-A27038-21

Appellants, Robert and Lisa Baumbach, as guardians of Aubrey

Baumbach, an incapacitated person, appeal from the September 3, 2015

Order granting the Motion for Judgment on the Pleadings filed by Lafayette

College, Richard Kelliher, and Allison Sobiech.1 After careful review, we

reverse the order and reinstate Appellants’ claims against these defendants

(collectively, the “Lafayette Defendants”).

The facts and procedural history, as gleaned from the record, including

Appellants’ September 3, 2014 Second Amended Complaint, are as follows. 2

In the fall of 2013, Aubrey Brumbach (“Aubrey”) matriculated as a freshman

at Lafayette College (“Lafayette”) in Easton and joined Lafayette’s club crew

team (“Team”). Lafayette leased from the City of Easton a boathouse

(“Boathouse”) located on Lehigh Drive out of which the Team practiced.

Lafayette employed Richard Kelliher and Allison Sobiech as,

respectively, the head and assistant Team coaches (“Coaches”). Within the

course and scope of their employment, Coaches taught the Team members

the sport of crew, ran Team practices, conducted physical training, managed

the Team equipment, and supervised the Team when travelling to regattas.

____________________________________________

1 As discussed infra, this interlocutory order became final and appealable following the December 11, 2020 entry of judgment upon praecipe to settle, discontinue, and end. 2 We glean the facts from Appellants’ Second Amended Complaint because “[o]n appeal, we accept as true all well-pleaded allegations in the complaint.” Consolidation Coal Co. v. White, 875 A.2d 318, 325 (Pa. Super. 2005).

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Coaches often required freshman Team members to run from Lafayette’s

main campus along Lehigh Drive to the Boathouse before practice and, for

the first several team practices of the season Coach Sobiech ran with them

and instructed them to run in a single file line, be careful, and watch for

cars. Coaches were aware that sometime shortly before the start of the

2013 school year, an accident took place on Lehigh Drive whereby a vehicle

struck and killed a pedestrian walking along the road.

The Team’s Boathouse was located approximately two miles from

Lafayette’s campus. There were no sidewalks or other pedestrian walkways

to allow students to walk between Lafayette and the Boathouse. The

Boathouse was only accessible via Lehigh Drive. Lehigh Drive has a speed

limit of 45 miles per hour, but vehicles commonly drove in excess of the

posted speed limit. The stretch of road in the vicinity of Boathouse is poorly

lit at night.

Lafayette did not provide transportation to Team members to and from

the Boathouse. Team members were responsible for their own

transportation to and from Team practices. Team members regularly parked

their private vehicles in a parking lot adjacent to Boathouse. Team

members also had access to a remote parking lot located hundreds of yards

from the Boathouse on Lehigh Drive.

On November 8, 2013, at approximately 4:00 PM, Aubrey arrived in a

teammate’s car at the Boathouse for a regularly scheduled Team practice.

However, upon their arrival, they observed that Coaches had parked the

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Team truck and trailer in a manner that obstructed access to the usual lot

adjacent to the Boathouse, thereby preventing other vehicles from parking

in the usual lot. Thus, Aubrey’s teammate parked her vehicle in the remote

lot on Lehigh Drive and Aubrey and her teammates traversed the narrow,

shoulder-less stretch of Lehigh Drive to reach practice. By the time practice

ended at 6:00 PM, the sun had set, and Aubrey and her teammates had to

walk back down the dark, narrow, shoulder-less stretch of Lehigh Drive to

reach the remote parking lot. Aubrey and her teammates walked single-file

along Lehigh Drive, as far away from the roadway as conditions permitted.

Nevertheless, during the walk back to the parking lot, Aubrey was hit by a

drunk driver, William Kneebone (“Kneebone”). As a result of the accident,

Aubrey sustained serious and lifelong injuries, including brain injuries,

requiring multiple and ongoing surgeries and therapies.

On September 3, 2014, Appellants filed a Second Amended Complaint

raising claims of negligence and intentional misrepresentation against The

Lafayette Defendants. In particular, Appellants alleged that the Lafayette

Defendants had breached the duty of care owed to Aubrey. They further

alleged that the Lafayette Defendants intentionally misrepresented, inter

alia, that it was safe: (1) for Team members to park in the remote lot not

adjacent to the Boathouse; and (2) to walk or run along Lehigh Drive when

it knew that there was no sidewalk and that the absence of a sidewalk posed

an imminent threat to the Team members’ safety.

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On December 12, 2014, the Lafayette Defendants filed an Answer and

New Matter in which they denied that they owed Aubrey a duty of care and

that they directly or proximately caused the injuries she sustained.3

On September 3, 2015, the trial court granted the Lafayette

Defendants’ Motion for Judgment on the Pleadings and dismissed Appellants’

Complaint. The trial court concluded that Appellants failed to establish that

the Lafayette Defendants owed a duty of care to Aubrey. It further

concluded that Aubrey did not justifiably rely on the Lafayette Defendants’

representations pertaining to the safety of walking or running along Lehigh

Drive.4

In October 2015, Appellants commenced a separate action asserting

claims directly against Kneebone and other individuals and establishments

they alleged were also responsible for Aubrey’s injuries (collectively, the

“Dramshop Defendants”). On June 28, 2017, the trial court consolidated the

two actions.

3 That same day, the Lafayette Defendants also filed praecipe to join as additional defendants Melanie Akins, Raymond Wood, Concordia Maennerchor, Roy A. Sexton, James Gunnerman, Candyce L. Elliott, Palmer Volunteer Fire Co. No. 2 of Wilson Boro (a/k/a Little Palmer Pub, and Kneebone (collectively, the “Dramshop Defendants”). 4 Appellants filed an appeal from this order which this Court quashed as interlocutory because the Lafayette Defendants’ claims against the Dramshop Defendants remained pending. See Baumbach v. Lafayette College, et al, No. 3071 EDA 2015 (Pa. Super. filed Feb. 8, 2016).

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Ultimately, Appellants reached settlements with each Dramshop

Defendant and, on August 6, 2020, Appellants’ filed an unopposed Petition

to Approve Settlement Agreement. The settlement agreements included

release provisions that provided, inter alia, that “[u]pon the receipt of the

[s]ettlement [p]roceeds . . . [Appellants] shall direct their attorneys to file a

Praecipe to Settle, Discontinue, and End[.]” See Petition to Approve

Settlement Agreement, 8/6/20, at Exh. B p.2-3.

On August 10, 2020,5 the trial court entered an order approving the

terms of the settlement agreements, including the provision setting receipt

of the settlement proceeds as a condition precedent to Appellants filing a

praecipe to settle, discontinue, and end their claims against the Dramshop

Defendants. Over the ensuing four months, the Dramshop Defendants

remitted the settlement proceeds to Appellants. On December 11, 2020,

Appellants filed a praecipe to settle, discontinue, and end the claims against

the Dramshop Defendants. Appellants then filed this appeal from the prior,

interlocutory order granting the Lafayette Defendants’ Motion for Judgment

on the Pleadings.

Appellants raise the following two issues for our review:

1. Did the trial court err in dismissing [Appellants’] negligence claims against the Lafayette [D]efendants on the basis that they owed no duty to [Aubrey] as a threshold matter, where ____________________________________________

5The lower court clerk provided Pa.R.C.P. 236 Notice of entry of the order approving the settlement agreements on August 11, 2020.

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[Appellants’] factual averments show that the Lafayette [D]efendants undertook to act for the protection and safety of the crew team members, including as it relates to the dangers associated with Lehigh Drive, and therefore the defendants assumed a corresponding duty of care under Pennsylvania law?

2. Did the trial court err in dismissing [Appellants’] negligent misrepresentation claims against the Lafayette [D]efendants when it concluded as a matter of law that [Aubrey] did not justifiably rely on the Lafayette [D]efendants’ representations concerning the safety of walking or running along Lehigh Drive, where [Appellants’] allegations demonstrate justifiable reliance when viewed in the light most favorable to the non- moving parties, and where any negligence of [Aubrey’s] is for the jury?

Appellants’ Brief at 3.

Before we reach the merits of this appeal, we consider whether it is

properly before this Court.6 The Lafayette Defendants argue that this appeal

is untimely because Appellants did not file it within 30 days of the trial

court’s August 10, 2020 order approving the settlement agreements

between Appellants and the Dramshop Defendants, which it asserts was the

final order in this matter. Lafayette Defendants’ Brief at 12-15.

Appellants aver, to the contrary, that pursuant to the settlement

agreement, this matter did not become final until Appellants received

payment from the settling Dramshop Defendants, released them from

6 February 28, 2021, Appellees filed an Application to Quash this appeal as untimely. We denied the application without prejudice for Appellees to re- raise the issue in its brief, which they have done.

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liability, and filed a praecipe to settle, discontinue, and end, which

Appellants did on December 11, 2020. Appellants’ Reply Brief at 16-26.

The Pennsylvania Rules of Appellate Procedure define a final order as,

inter alia, any order that disposes of all claims and of all parties. See

Pa.R.A.P. 341(b)(1). More generally, our Supreme Court has opined that an

order is “final” when it “ends the litigation, or alternatively disposes of the

entire case.” T.C.R. Realty, Inc. v. Cox, 372 A.2d 721, 724 (Pa. 1977)

(citing Pitzer v. Independence Savings & Loan Ass’n, 319 A.2d 677,

678 (Pa. 1974); James Banda Inc. v. Virginia Manor Apartments, Inc.,

303 A.2d 925, 926 (Pa. 1973)).

Our review of the August 10, 2020 order granting Appellants’ petition

to approve Appellants’ settlements with the Dramshop Defendants indicates

that that order did not end the litigation or dispose of the entire case.

Rather, it approved the agreements which provided, inter alia, that

Appellants would file a praecipe to settle, discontinue, and end this action as

to the remaining defendants—the Dramshop Defendants—once they had

paid Appellants the settlement proceeds. After receiving those payments,

Appellants timely filed their appeal from the prior interlocutory order now on

appeal.

Having concluded that this appeal is timely, we proceed to address the

issues raised by Appellants, both of which challenge the trial court’s order

granting judgment on the pleadings.

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Our review of a trial court’s decision to grant judgment on the

pleadings is plenary. Wakeley v. M.J. Brunner, Inc., 147 A.3d 1, 5 (Pa.

Super. 2016). We apply the same standard of review as the trial court: we

confine our review to the pleadings and relevant documents, and we accept

as true all well-pleaded statements of fact in favor of the non-moving party.

Id. Judgment on the pleadings “may be entered when there are no disputed

issues of fact and the moving party is entitled to judgment as a matter of

law.” Id. (citation omitted). Thus, we will affirm the trial court when the

moving party’s right to succeed is certain. Id.

In their first issue, Appellants claim that the trial court erred as a

matter of law in dismissing their negligence claim after finding that the

Lafayette Defendants did not owe Aubrey a duty of care. Appellants’ Brief at

16-41. Relying primarily on Restatement (Second) of Torts § 3237,

Appellants argue that they sufficiently pleaded in their Complaint that the

Lafayette Defendants assumed a duty to Aubrey by undertaking to act for ____________________________________________

7 Restatement (Second) of Torts § 323 provides as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement (Second) of Torts § 323. The Pennsylvania Supreme Court has adopted Section 323. See Feld v. Merriam, 485 A.2d 742, 746 (Pa. 1984).

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her protection and safety, which gave rise to a corresponding duty of care.

Id. at 27-29.

“Generally, to state a cause of action for negligence, a plaintiff must

allege facts which establish the breach of a legally recognized duty or

obligation of the defendant that is causally connected to actual damages

suffered by the plaintiff.” Scampone v. Highland Park Care Center, LLC,

57 A.3d 582, 596 (Pa. 2012). The existence of a duty is a question of law.

R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005).

A person may, through his affirmative conduct, assume a duty to

exercise reasonable care in the performance of the conduct. See, e.g, Feld

v. Merriam, 485 A.2d 742, 746-47 (Pa. 1984) (holding that, although a

landlord does not generally owe a duty to protect the safety of his tenants, a

duty might arise if the landlord undertook to provide secured parking and

failed to take reasonable care in doing so); Feleccia v. Lackawanna

College, 215 A.3d 3, 15 (Pa. 2019) (concluding that the “affirmative

conduct” of Lackawanna College imposed upon the college a “duty to

exercise reasonable care to protect [its student athletes] against an

unreasonable risk of harm arising from that affirmative conduct.”) (quotation

omitted)); Dittman v. UPMC, 196 A.3d 1036, 1047 (Pa. 2018) (holding

that UPMC’s affirmative conduct imposed upon it a duty to exercise

reasonable care to protect its employees against an unreasonable risk of

harm in collecting and storing the employees’ data on its computer

systems)).

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Our review of Appellants’ Second Amended Complaint indicates that

Appellants alleged sufficient facts to establish a prima facie case that the

Lafayette Defendants undertook to act for Aubrey’s safety and protection as

a member of the Team. In particular, Appellants alleged that the Lafayette

Defendants’ affirmative actions included (1) entering into a management

agreement for the Boathouse that required College to follow safety practices

at the facility; (2) providing a “usual” parking lot next to the Boathouse for

Team members to park their personal vehicles;8 and (3) hiring Coaches who

taught the sport of crew, provided physical training, supervised the team’s

equipment and logistics, and instructed the students with respect to their

conduct along Lehigh Drive. They alleged that these affirmative actions

imposed upon the Lafayette Defendants a duty of care to protect Team

members, including Aubrey, against an unreasonable risk of harm arising

from that affirmative conduct.

We agree. These allegations demonstrate that the Lafayette

Defendants undertook for Team members the provision of a safe

environment for members to engage in crew, including providing safe and

accessible parking to attend practice. Accordingly, we find that the trial

court erred in concluding that the Lafayette Defendants were under no legal

8 Second Amended Complaint, 9/3/14, at ¶ 22.

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duty to protect Aubrey and were, thus, were entitled to judgment as a

matter of law.

In their second issue, Appellants assert that the trial court erred in

granting the Lafayette Defendants’ Motion for Judgment on the Pleadings

with respect to Appellants’ intentional misrepresentation claim. Appellants’

Brief at 42-47. Appellants argue that, when viewed in the light most

favorable to them, they alleged sufficient facts to establish a prima facie

case of misrepresentation against the Lafayette Defendants. Id. at 46. We

agree.

To prevail on a cause of action for intentional misrepresentation, a

plaintiff must prove the following elements: (1) a representation; (2) which

is material to the transaction at hand; (3) made falsely, with knowledge of

its falsity or recklessness as to whether it is true or false; (4) with the intent

of misleading another into relying on it; (5) justifiable reliance on the

misrepresentation; and (6) reliance proximately caused the resulting injury.

Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994).

Whether a party justifiably relied on the representations of another is a

question of fact. See, e.g., Toy v. Metropolitan Life Ins. Co, 928 A.2d

186, 208 (Pa. 2007) (explaining in the context of a claim under the Unfair

Trade Practices and Consumer Protection Law that “justifiable reliance is

typically a question of fact for the fact-finder to decide, and requires a

consideration of the parties, their relationship, and the circumstances

surrounding their transaction.”); Drelles v. Mfr. Life Ins. Co., 881 A.2d

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822, 841 (Pa. Super. 2005) (“It is up to a jury to determine whether [the

plaintiff] justifiably relied upon [the defendant’s] representations[.]”); Egan

v. USI Mid-Atlantic, Inc., 92 A.3d 1, 16 (Pa. Super. 2014) (applying the

principle set forth in Toy to allegations of fraud in an UM/UIM coverage

dispute).

The trial court explained its conclusion that the Lafayette Defendants

were entitled to judgment as a matter of law on Appellants’ intentional

misrepresentation claim as follows:

It is plain that a person using his common sense could conclude that there is a certain level of risk associated with being a pedestrian on a roadway with no sidewalks or walking path. Further, the risk of being struck by an errant, criminal drunk driver while walking along a roadway is a risk that is always associated with being a pedestrian, and one that does not disappear from recognition simply because a party may have instructed the pedestrian to be cautious in a certain area, or may have known of a previous incident. As such any alleged reliance by [Aubrey] on statements made by [the Lafayette Defendants] concerning the safety of walking along Lehigh Drive cannot be deemed justifiable.

Trial Ct. Op. at 7.

Our review of the Second Amended Complaint indicates that

Appellants alleged numerous facts in support of their intentional

misrepresentation claim. For example, Appellants alleged that Coaches

misrepresented that Lehigh Drive was safe for the Team members’ use as

pedestrians, while also periodically cautioning Team members to run single-

file and watch for cars. Appellants further alleged that Coaches made

representations to Team members about the safety of parking in the remote

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parking lot and walking down Lehigh Drive to reach the boathouse.

Appellants alleged that Coaches made these representations either knowing

that the statements were false or without adequate knowledge about the

safety conditions of Lehigh Drive but professing to have such knowledge.

Appellants also alleged that Coaches knew that there had been a prior fatal

pedestrian-involved accident on Lehigh Drive in the vicinity of the boathouse

during the summer before Aubrey enrolled at Lafayette College. Appellants

further alleged that Coach Sobiech’s conduct in leading freshman Team

members on runs along Lehigh Drive and subsequently sending the

members on unsupervised runs falsely represented that running or walking

along Lehigh Drive was safe. Last, Appellants alleged that the Lafayette

Defendants misrepresented Lehigh Drive’s safety when it encouraged Team

members to park in the remote parking lot when the lot adjacent to the

Boathouse was not available to and walk along Lehigh Drive to reach the

Boathouse.

When viewed in the light most favorable to Appellants as the non-

moving party, we find these allegations sufficient to establish a prima facie

claim that Aubrey justifiably relied on the Lafayette Defendants’

representations regarding the safety of Lehigh Drive. Moreover, our review

indicates that the trial court, in concluding to the contrary, erroneously

usurped the role of the fact-finder to determine that Aubrey’s reliance on the

Lafayette Defendants’ representations was not justifiable. Accordingly, we

conclude that the trial court erred granting judgment on the pleadings in

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favor of the Lafayette Defendants on Appellants’ intentional

misrepresentation claim.

Order reversed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/4/2022

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