Opinion
Civil Action 21-557
01-14-2022
JENNIFER RAMSEY, individually and on behalf of the Estate of James Kinder, deceased, Plaintiff, v. THE SALVATION ARMY, A NEW YORK CORPORATION, Defendant.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Defendant's motion to dismiss be denied.
II. Report
In this wrongful death and survival action, Plaintiff Jennifer Ramsey, the personal representative of the Estate of James Kinder, alleges that the negligence of Defendant The Salvation Army (“Salvation Army”), caused the death of James Kinder (“Kinder”). (ECF No. 10.) The Salvation Army has moved to dismiss this action, arguing that it did not have a duty to protect Kinder from self-inflicted harm. (ECF Nos. 12-13.) Its motion is fully briefed and ripe for disposition. (ECF No. 16.)
A. Facts Alleged in Amended Complaint
In May 2017, Kinder sought treatment for his drug addiction at the Salvation Army's Adult Rehabilitation Center in Erie, Pennsylvania. (ECF No. 10 ¶¶ 10, 17.) There, he was admitted for in-patient treatment and became a “beneficiary” (Id. ¶ 18.) “Beneficiary” is a term that the Salvation Army uses to describe anyone who is a resident of one of its facilities. (Id. ¶ 12 n.1.) 1
The Rehabilitation Center where Kinder was residing provided a fifteen-page guide to residents upon entry. (ECF No. 10-2.) The manual states in relevant part:
• “Our programs are character focused rather than treating a clinical diagnosis.” (Id. at 3.)
• “Safety: Our intention is to provide a safe center which adheres to the standards for holy living. . . All program participants and their guests are subject to a breathalyzer test to confirm the absence of alcohol. No. person is allowed to enter the facility or remain on the premises while under the influence of any amount of alcohol. The program staff will also perform compliance testing on program participants to ensure the absence of non-prescribed drugs . . . Possession and/or usage of intoxicants will require an immediate discharge from the program.” (Id. at 7.)
• “Personal computers, cell phones, pagers, and devices with internet access are not allowed on the premises.” (Id. at 8.)
• “Each center has two passes. The first is for an appointment pass and is used exclusively as permission to be off property for a specific purpose. . . A privilege pass is for a late night, overnight or weekend passes. You will be notified as to when you are eligible for this privilege. . . All passes must have written staff approval.” (Id. at 10.)
• “Upon return from some passes, you may be required to give a sample for compliance testing. Therefore, if you choose to use alcohol or drugs while on pass, please be prepared to secure transportation to a shelter or other living accommodation. The center cannot be responsible for the choices you make.” (Id. at 12.)
• “As a non-clinical, non-medical program, we advise you to seek medical care for all physical and/or mental illness issues and concerns. . . During a crisis[, ] we will call an ambulance and other emergency services to assist you at your request and/or upon our observation of need.” (Id.)
• “Your legible signature for signing in and out of the center is required every time you leave our building. . . The front desk will notify a staff member of urgent and important issues.” (Id.)
• “You are welcome to stay at our centers as you continue to comply with the program['s] structure and guidelines. We believe everyone's stay here is voluntary regardless of their court commitments or promises to family. If you decide to leave prior to graduation, or not return by curfew, we will note that as a self-discharge.” (Id. at 14.)
Prior to his death, Kinder was identified by the Salvation Army to be at risk for seeking drugs. (Id. ¶ 20.)
On June 16, 2017, Kinder decided to leave the center with two other beneficiaries to “get high.” (ECF No. 10 ¶ 19.) When Kinder returned later that evening, he was incoherent and unable to stand without assistance. (Id. ¶¶ 21, 26-27.) When he and his companions were buzzed into the 2 Adult Rehabilitation Center, the two beneficiaries carried Kinder inside and signed themselves in. (Id. ¶ 29.) Kinder, however, was unable to do so because of his incoherent state. (Id.)
Working at the front desk that evening was another beneficiary. (Id. ¶ 24.) This beneficiary was responsible for, among other things, administering breathalyzers to entrants to the facility, performing compliance testing to ensure the absence of non-prescription drugs, notifying staff members about urgent issues (including a beneficiary's condition or safety), and calling for an ambulance or other emergency service if needed. (Id.) Despite the front desk beneficiary's observation of Kinder's obviously impaired state, he did not administer compliance testing, call for an ambulance, or notify a staff member that assistance was needed. (Id. ¶¶ 27-32.) He did, however, administer breathalyzers to the two beneficiaries who had accompanied Kinder. (Id. ¶ 28.) Plaintiff alleges that upon information and belief, at all relevant times a “houseman” and an “assistant houseman” were present and observed Kinder's impaired condition and/or inability to walk. (Id. ¶ 33.)
It is not clear from the Amended Complaint whether the “assistant houseman” and “houseman” are beneficiaries.
The two beneficiaries who carried Kinder in were permitted to carry him to his room on the third floor. (Id. ¶ 35.) En route, they walked by a second “assistant houseman” who observed them but did not intervene or inquire about Kinder's condition, what was occurring or whether he needed assistance. (Id. ¶¶ 33-34.)
The next morning, Kinder was found unresponsive. (Id. ¶ 36.) He died later that day. (Id.)
B. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). 3 The Supreme Court held that, pertaining to Rule 12(b)(6)'s standard of review, a complaint must include factual allegations that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice' but also the ‘grounds' on which the claim rests.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”; “labels and conclusions”; and “naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (citations omitted). Mere “possibilities” of misconduct are insufficient. Id. at 679.
The Court of Appeals has summarized this inquiry as follows:
To determine the sufficiency of a complaint, a court must take three steps. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “Generally, consideration of a motion to dismiss under Rule 12(b)(6) is limited to consideration of the complaint itself.” Marks v. State Farm Fire & Cas. Co., Civ. A. No. 4:21-CV-00307, 2021 WL 3022637, at *2 (M.D. Pa. July 16, 2021) (internal citation omitted); see Fed. R. Civ. P. 12(d). If, however, “a document [is] integral to or explicitly relied upon in the complaint[, the document] may be considered without converting 4 the motion to dismiss into one for summary judgment.” Lomma v. Ohio Nat'l Life Assurance Corp., 283 F.Supp.3d 240, 248 (M.D. Pa. 2017) (quoting Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)); see Degnan v. Progressive Corp., Civ. A. No. 2:20-cv-1098, 2021 WL 1895631, at *2 (W.D. Pa. Apr. 27, 2021) (“In addition to reviewing the facts contained in the complaint, a court may consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case”) (internal and quotation omitted).
C. Discussion and Analysis
Plaintiff alleges that the death of Kinder was the direct result of the Salvation Army's negligence. The alleged negligent acts and omissions include, but are not limited to, the failure to follow its own policies during a crisis; allowing Kinder, who was incoherent and obviously impaired, to re-enter and remain on the premises despite his condition; the failure to contact an ambulance or emergency services; and the failure to adequately train housemen and beneficiaries to deal with such circumstances. (ECF No. 10 ¶ 43.)
“[T]o prevail in a negligence case a plaintiff must demonstrate the following elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) a causal relationship between the breach and the resulting injury suffered by the plaintiff; and (4) actual loss suffered by the plaintiff.” Klar v. Dairy Farmers of Am., Inc., __ A.3d __, 2021 WL 5983828, at *6 (Pa. Super. Ct. 2021) (quoting Schemberg v. Smicherko, 85 A.3d 1071, 1073-74 (3d Cir. 2014)). A key element in any negligence claim is whether a duty exists. See Gibbs v. Ernst, 647 A.2d 882 (Pa. 1994). Whether a duty exists is a question of law for the court to decide. Miller v. Amazon.com Serv., Inc., __ F.Supp.3d __, 2021 WL 2388179, at *3 (E.D. Pa. 2021). Here, the 5 Salvation Army argues that Plaintiff's claims fail as a matter of law because it did not owe Kinder a common law duty under the factors set forth in Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000).
The Althaus factors include: “(1) the relationship between the parties; (2) the social utility of the actor's 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.” Dittman v. UPMC, 196 A.3d 1036, 1040 n.2 (Pa. 2018).
Plaintiff argues that she has pleaded a plausible duty under the Althaus factors and also suggests that a duty to contact emergency services exists under Restatement (Second) of Torts §§ 323-24 and the Salvation Army's own policies as well.
The facts pleaded in the Amended Complaint suggest that certain limitations and requirements were imposed by the Salvation Army on Kinder, an acknowledged addict, while he was living at its Rehabilitation Center and that certain mandated emergency procedures were not followed. Plaintiff has pleaded that based on these facts, among others, the nature of the relationship between the Salvation Army and Kinder created a duty to Kinder.
The Supreme Court of Pennsylvania has not directly decided whether a drug and alcohol in-patient treatment facility owes a duty to prevent a resident from overdosing. Of the few cases outside of this jurisdiction that the Court has been able to uncover on this issue, courts, at a minimum, have determined that it is a question at the summary judgment stage. See Klean v. Hollywood, LLC v. The Superior Court of Los Angeles Cty., 230 Cal.Rptr.3d 168 (Cal.Ct.App. 2018) (finding on summary judgment no duty existed because “Klean is an unlocked substance abuse facility whose clients voluntarily seek non-medical treatment”; Klean does not guarantee successful outcomes or promise to prevent residents from securing drugs; Klean “make[s] drug use a ground for termination from the program”; and “[t]he record establishes that Klean undertook reasonable measures to prevent [the plaintiff] from using drugs”) (review denied and ordered not to be officially published); Hales v. Timberline Knolls, LLC, Civ. A No. 15 C 2622, 2017 WL 25174, at *5 (N.D. Ill. Jan. 3, 2017) (denying a motion to dismiss because based on the facts pled, 6 a duty existed to prevent a patient at an in-patient rehabilitation center from smuggling contraband into the facility). See also Cohen v. Maricopa Cty., 263 P.3d 61, 65 (Ariz.Ct.App. 2011) (mentioning in dicta that a county could only have a duty of care to a drug treatment patient where it had “the ability to exclusively control the environment surrounding the patient and to control and reduce risk associated with such environment”).
In arguing that its motion must be granted, the Salvation Army relies on James v. Duquesne University, 936 F.Supp.2d 618 (W.D. Pa. 2013). There, based on the record evidence before him, District Judge Cercone found that Duquesne University did not owe a duty to provide security to the plaintiff, who was shot on campus by a visitor, even though it was clear that the University “could” have done more. Unlike the present matter, the James case was decided on summary judgment after the development of a full record.
While the Salvation Army contests many of the factual allegations in the Amended Complaint, including the type of facility at which Kinder was residing, the nature of the relationship between them and the amount of control it had over Kinder, the Court must review the facts that have been pleaded in the light most favorable to the nonmovant at the motion to dismiss stage. Applying this liberal standard, Plaintiff has plausibly alleged sufficient facts from which a duty may be found. See Althaus, 756 A.2d 1166. To be clear, based upon the allegations of the Amended Complaint, the Court is not deciding as a matter of law that the Salvation Army owed a common law duty to Kinder or that a duty could only exist if the facility was an “in-patient” facility. Rather, under the liberal pleading standard applicable to a motion to dismiss, the Court finds that Plaintiff has met her burden to state a plausible claim. Once a full record has been developed, the Salvation Army may renew its argument that it did not owe any duty to Kinder.
Lastly, because negligence and negligence per se are not separate causes of action under Pennsylvania law, the Court need not reach the issue of whether the Salvation Army's rehabilitation center guidelines created a legal duty to protect Kinder from overdosing at its 7 facility. Sipp-Lipscomb v. Einstein Physicians Pennypack Pediatrics, Civ. A. No. 20-1926, 2020 WL 7353105, at *3 (E.D. Pa. Dec. 9, 2020). Accordingly, dismissal is not appropriate at this time. The Salvation Army may renew its arguments after discovery has concluded.
D. Conclusion
For the reasons stated above, it is recommended that the Salvation Army's Motion to Dismiss be denied.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Report and Recommendation to file objections to the Report and Recommendation. Failure to file timely objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). 8