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BRADSHAW,
DONALD; CUNEO, ALFRED and CUNEO, CAROLE, Appellants, v. BRUCE D. RAWLINGS,
GILBERT D. RAWLINGS, BOROUGH OF DOYLESTOWN, PENNSYLVANIA, DELAWARE VALLEY
COLLEGE, MARJORIE E. MOYER, t/a SUNNY BEVERAGES, MAENNERCHOR SOCIETY, SAAB MOTOR
COMPANY; BRADSHAW, DONALD; CUNEO, ALFRED and CUNEO, CAROLE v. BRUCE D.
RAWLINGS, GILBERT D. RAWLINGS, BOROUGH OF DOYLESTOWN, PENNSYLVANIA,
DELAWARE VALLEY COLLEGE, MARJORIE E. MOYER, t/a SUNNY BEVERAGES, MAENNERCHOR
SOCIETY, SAAB MOTOR COMPANY Borough of Doylestown, Appellant ; BRADSHAW,
DONALD; CUNEO, ALFRED and CUNEO, CAROLE v. BRUCE D. RAWLINGS, GILBERT D.
RAWLINGS, BOROUGH OF DOYLESTOWN, PENNSYLVANIA, DELAWARE VALLEY COLLEGE,
MARJORIE E. MOYER, t/a SUNNY BEVERAGES, MAENNERCHOR SOCIETY, SAAB MOTOR COMPANY
Delaware Valley College, Appellant ; BRADSHAW, DONALD; CUNEO, ALFRED and
CUNEO, CAROLE v. BRUCE D. RAWLINGS, GILBERT D. RAWLINGS, BOROUGH
OF DOYLESTOWN, PENNSYLVANIA, DELAWARE VALLEY COLLEGE, MARJORIE E. MOYER, t/a
SUNNY BEVERAGES, MAENNERCHOR SOCIETY, SAAB MOTOR COMPANY, MARJORIE M0YER t/a
SUNNY BEVERAGES, Appellant .
Nos. 79-1409 to 79-1412
UNITED STATES COURT OF APPEALS, THIRD CIRCUIT
612 F.2d 135; 1979 U.S. App. LEXIS 9617
October 11, 1979, Argued
December 17, 1979, Decided
PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-0048)
COUNSEL: Louis Ruprecht (argued), Scotch Plains, N. J., for Donald
Bradshaw, et al.
William F. Sullivan, Jr. (argued), Albert J. Schell, Jr., Post & Schell,
Philadelphia, Pa., for Borough of Doylestown.
William T. Campbell, Jr. (argued), Swartz, Campbell & Detweiler, Philadelphia,
Pa., for Delaware Valley College.
John W. Potkai (argued), Emil F. Toften, Emil F. Toften & Associates, Chalfont,
Pa., for Marjorie E. Moyer T/A Sunny Beverages.
G. Thomas Miller, Harvey Freedenberg, McNees, Wallace & Nurick, Harrisburg, Pa.,
for amici curiae Pennsylvania Association of Colleges and Universities and
American Council on Education; Sheldon Elliot Steinbach, Gen. Counsel, American
Council on Education, Washington, D. C., of counsel.
JUDGES: Before ALDISERT and HUNTER, Circuit Judges, and MEANOR, District
Judge.
*
*
Honorable H. Curtis Meanor, of the United States District Court for the District
of New Jersey, sitting by designation.
OPINION BY: ALDISERT
OPINION
[*136] OPINION OF THE COURT
The major question for decision in this diversity case tried under
Pennsylvania [**2] law [*137] is whether a college may be subject to tort
liability for injuries sustained by one of its students involved in an
automobile accident when the driver of the car was a fellow student who had
become intoxicated at a class picnic. Another question relates to the liability
of the distributor who furnished beer for the picnic which led to the
intoxication of the driver. Still another question concerns the tort liability
of the municipality where the plaintiff's injuries occurred.
The district court permitted the question of negligence to go to the jury
against the college, the beer distributor and the municipality. From an adverse
verdict of $ 1,108,067 each of the defendants has appealed, advancing separate
arguments for reversal. The plaintiff has filed a conditional cross-appeal.
1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 For
convenience we refer to the plaintiff in the singular although joining the
injured plaintiff, Donald Bradshaw, were his mother and stepfather who
recovered $ 5,000 each.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
I.
Donald Bradshaw, an eighteen [**3] year old student at Delaware Valley
College, was severely injured on April 13, 1975 in Doylestown, Pennsylvania,
while a backseat passenger in a Saab automobile driven by a fellow student,
Bruce Rawlings.
2
Both were sophomores and had attended their class picnic at a grove owned by the
Maennerchor Society on the outskirts of the borough.
3
Returning to the college from the picnic, Rawlings drove through
Doylestown on Union Street. Union Street is colloquially known as "Dip Street"
because it was constructed with drainage dips, instead of sewers, to carry
surface water runoff. While proceeding through one of the dips, Rawlings
lost control of the automobile which then struck a parked vehicle. As a result
of the collision Bradshaw suffered a cervical fracture which caused
quadriplegia.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
2 Saab
Motor Company, the manufacturer of the vehicle, and Gilbert Rawlings, the
owner of the vehicle, were originally named as defendants but plaintiff
voluntarily dismissed them.
3
Although originally named as a defendant, the Maennerchor Society is not a party
to this appeal.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**4] The picnic, although not held on college grounds, was an annual activity
of the sophomore class. A faculty member who served as sophomore class advisor
participated with the class officers in planning the picnic and co-signed a
check for class funds that was later used to purchase beer. The advisor did not
attend the picnic, nor did he get another faculty member to attend in his place.
Flyers announcing the picnic were prominently displayed across the campus. They
were mimeographed by the college duplicating facility and featured drawings of
beer mugs. Approximately seventy-five students attended the picnic and consumed
six or seven half-kegs of beer. The beer was ordered from Marjorie Moyer,
trading as Sunny Beverages, by the sophomore class president who was underage.
The legal drinking age in Pennsylvania was, and is, twenty-one years, but the
great majority of the students drinking at the picnic were sophomores of either
nineteen or twenty years of age. Rawlings had been at the picnic for a
number of hours. He testified that he had no recollection of what occurred from
the time he left the picnic until after the accident. Bradshaw testified
that Rawlings had been drinking [**5] and another witness, Warren Wylde,
expressed his opinion that Rawlings was under the influence of alcohol
when he left the picnic grove. That there was sufficient evidence on the
question of Rawlings' intoxication to submit to the jury cannot be
seriously questioned.
II.
On appeal, the college argues that Bradshaw failed to present sufficient
evidence to establish that it owed him a duty for the breach of which it could
be held liable in tort. The district court, apparently assuming that such a duty
existed, submitted the question of the college's liability to the jury, stating:
In any event, the college owes a duty to use due care under
the circumstances to [*138] prevent an unreasonable risk of harm to sophomores
who attend a class function. Restatement (Second) of Torts §§ 282 and 283 (1965)
provide:
§ 282. Negligence Defined
In the Restatement of this Subject, negligence is conduct
which falls below the standard established by law for the protection of others
against unreasonable risk of harm. It does not include conduct recklessly
disregardful of an interest in others.
§ 283. Conduct of a Reasonable Man:
The Standard
[**6]
Unless the actor is a child, the standard of conduct to
which he must conform to avoid being negligent is that of a reasonable man under
like circumstances.
Bradshaw v. Rawlings, 464 F. Supp. 175, 181
(E.D.Pa.1979). In its post-trial opinion, the district court attempted to
justify this instruction by stating:
I submitted this case to the jury on the above concept. The
College was permitted to argue to the jury that it was not negligent because it
was powerless to control the habits of college sophomores in regard to drinking
beer. The jury rejected the College's defense that it acted in a reasonable
manner under the circumstances. It should be noted that the College's liability
is predicated on the concept of want of due care which a reasonable man would
exercise under the circumstances.
Id.
A.
The college's argument strikes at the heart of tort law because a negligence
claim must fail if based on circumstances for which the law imposes no duty of
care on the defendant. "Negligence in the air, so to speak, will not do."
4
As Professor Prosser has emphasized, the statement that there is or is not a
duty begs the essential question, which is whether the [**7] plaintiff's
interests are entitled to legal protection against the defendant's conduct. "
"Duty' is not sacrosanct in itself, but only an expression of the sum total of
those considerations of policy which lead the law to say that a particular
plaintiff is entitled to protection."
5
Thus, we may perceive duty simply as an obligation to which the law will give
recognition in order to require one person to conform to a particular standard
of conduct with respect to another person.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
4 F.
Pollock, Law of Torts 468 (13th ed. 1929).
5 W.
Prosser, Law of Torts 333 (3d ed. 1964).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
These abstract descriptions of duty cannot be helpful, however, unless they are
directly related to the competing individual, public, and social interests
implicated in any case. An interest is a social fact, factor, or phenomenon
existing independently of the law which is reflected by a claim, demand, or
desire that people seek to satisfy and that has been recognized as socially
valid by authoritative decision makers in society. [**8]
6
Certainly, the plaintiff in this case possessed an important interest in
remaining free from bodily injury, and thus the law protects his right to
recover compensation from those who negligently cause him injury. The college,
on the other hand, has an interest in the nature of its relationship with its
adult students, as well as an interest in avoiding responsibilities that it is
incapable of performing.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
6 See,
e.g., Pound, A Survey of Social Interests, 57 Harv.L.Rev. 1 (1943); Llewellyn, A
Realistic Jurisprudence The Next Step, 30 Colum.L.Rev. 431, 441-47 (1930).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
B.
Our beginning point is a recognition that the modern American college is not an
insurer of the safety of its students. Whatever may have been its responsibility
in an earlier era, the authoritarian role of today's college administrations has
been notably diluted in recent decades. Trustees, administrators, and faculties
have been required to yield to the expanding rights and privileges of their
students. By constitutional amendment,
7 [**9]
written
8
and unwritten law, and [*139] through the evolution of new customs, rights
formerly possessed by college administrations have been transferred to students.
College students today are no longer minors; they are now regarded as adults in
almost every phase of community life. For example except for purposes of
purchasing alcoholic beverages, eighteen year old persons are considered adults
by the Commonwealth of Pennsylvania. They may vote,
9
marry,
10
make a will,
11
qualify as a personal representative,
12
serve as a guardian of the estate of a minor,
13
wager at racetracks,
14
register as a public accountant,
15
practice veterinary medicine,
16
qualify as a practical nurse,
17
drive trucks, ambulances and other official fire vehicles,
18
perform general fire-fighting duties,
19
and qualify as a private detective.
20
Pennsylvania has set eighteen as the age at which criminal acts are no longer
treated as those of a juvenile,
21
and eighteen year old students may waive their testimonial privilege protecting
confidential statements to school personnel.
22
Moreover, a person may join the Pennsylvania militia at an even younger age than
eighteen
23
and may [**10] hunt without adult supervision at age sixteen.
24
As a result of these and other similar developments in our society, eighteen
year old students are now identified with an expansive bundle of individual and
social interests and possess discrete rights not held by college students from
decades past. There was a time when college administrators and faculties assumed
a role In loco parentis. Students were committed to their charge because the
students were considered minors. A special relationship was created between
college and student that imposed a duty on the college to exercise control over
student conduct and, reciprocally, gave the students certain rights of
protection by the college. The campus revolutions of the late sixties and early
seventies were a direct attack by the students on rigid controls by the colleges
and were an all-pervasive affirmative demand for more student rights.
25
In general, the students succeeded, peaceably and otherwise, in acquiring a new
status at colleges throughout the country. These movements, taking place almost
simultaneously with legislation and case law lowering the age of majority,
produced fundamental changes in our society. A dramatic [**11] reapportionment
of responsibilities and social interests of general security took place.
Regulation by the college of student life on [*140] and off campus has become
limited. Adult students now demand and receive expanded rights of privacy in
their college life including, for example, liberal, if not unlimited, partial
visiting hours. College administrators no longer control the broad arena of
general morals. At one time, exercising their rights and duties In loco
parentis, colleges were able to impose strict regulations. But today students
vigorously claim the right to define and regulate their own lives. Especially
have they demanded and received satisfaction of their interest in self-assertion
in both physical and mental activities, and have vindicated what may be called
the interest in freedom of the individual will. In 1972 Justice Douglas
summarized the change:
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
7
Section one of the twenty-sixth amendment to the United States Constitution
provides: "The right of citizens of the United States, who are eighteen years of
age or older, to vote shall not be denied or abridged by the United States or by
any State on account of age." [**12]
8 See,
e.g., Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975);
Papish v. Board of Curators, 410 U.S. 667, 93 S. Ct. 1197, 35 L. Ed. 2d 618
(1973) (per curiam); Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d
266 (1972); Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed.
2d 222 (1972); Tinker v. Des Moines School District, 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).
9 25
P.S. § 2811.
10 48
P.S. §§ 1-5.
11 20
Pa.C.S. § 2501.
12 20
Pa.C.S. § 3156.
13 20
Pa.C.S. § 5112.
14 15
P.S. § 2621.
15 63
P.S. § 9.8g.
16 63
P.S. § 485.9.
17 63
P.S. § 655.
18 43
P.S. § 48.3.
19 Id.
20 22
Pa.C.S. § 46.
21 42
Pa.C.S. §§ 6302, 6303-08.
22 42
Pa.C.S. § 5945.
23 51
Pa.C.S. § 301 (seventeen years, six months).
24 34
P.S. § 1311.316.
25 See
generally Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90
(1974); Healy v. James, 408 U.S. 169, 171, 92 S. Ct. 2338, 33 L. Ed. 2d 266
(1971); See also Report of the President's Commission on Campus Unrest (1970);
Report of the American Bar Association Commission on Campus Government and
Student Dissent (1970); S. Kelman, Push Comes to Shove: The Escalation of
Student Protest (1970); A. Adelson, SDS (4th ed. 1970).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**13]
Students who, by reason of the Twenty-sixth Amendment,
become eligible to vote when 18 years of age are adults who are members of the
college or university community. Their interests and concerns are often quite
different from those of the faculty. They often have values, views, and
ideologies that are at war with the ones which the college has traditionally
espoused or indoctrinated.
Healy v. James, 408 U.S. 169, 197, 92 S. Ct. 2338, 2354, 33
L. Ed. 2d 266 (1972) (Douglas, J., concurring).
Thus, for purposes of examining fundamental relationships that underlie tort
liability, the competing interests of the student and of the institution of
higher learning are much different today than they were in the past. At the risk
of oversimplification, the change has occurred because society considers the
modern college student an adult, not a child of tender years. It could be
argued, although we need not decide here, that an educational institution
possesses a different pattern of rights and responsibilities and retains more of
the traditional custodial responsibilities when its students are all minors, as
in an elementary school, or mostly minors, as in a high school. Under [**14]
such circumstances, after weighing relevant competing interests, Pennsylvania
might possibly impose on the institution certain duties of protection, for the
breach of which a legal remedy would be available. See, e.g., Chappel v.
Franklin Pierce School District, 71 Wash.2d 17, 426 P.2d 471 (1967); McLeod v.
Grant County School District, 42 Wash.2d 316, 255 P.2d 360 (1953); Restatement
(Second) of Torts § 320 (1965).
26
But here, because the circumstances show that the students have reached the age
of majority and are capable of protecting their own self interests, we believe
that the rule would be different.
27
We conclude, therefore, that in order to ascertain whether a specific duty of
care extended from Delaware Valley College to its injured student, we must first
identify and assess the competing individual and social interests associated
with the parties.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
26 §
320. Duty of Person Having Custody of Another to Control Conduct of Third
Persons
One who is required by law to take or who voluntarily takes the custody of
another under circumstances such as to deprive the other of his normal power of
self-protection or to subject him to association with persons likely to harm
him, is under a duty to exercise reasonable care so to control the conduct of
third persons as to prevent them from intentionally harming the other or so
conducting themselves as to create an unreasonable risk of harm to him, if the
actor
(a) knows or has reason to know that he has the ability to control the conduct
of the third persons, and
(b) knows or should know of the necessity and opportunity for exercising such
control. [**15]
27 For
example, Restatement (Second) of Torts § 315 (1965) states the general rule:
There is no duty so to control the conduct of a third person as to prevent him
from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which
imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the
other a right to protection.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
III.
A.
In the process of identifying the competing interests implicated in the
student-college relationship, we note that the record in this case is not overly
generous in [*141] identifying the interests possessed by the student,
although it was Bradshaw's burden to prove the existence of a duty owed
him by the college in order to establish a breach thereof. Bradshaw has
concentrated on the school regulation imposing sanctions on the use of alcohol
by students. The regulation states: "Possession or consumption of alcohol or
malt beverages on the property of the College or at any College sponsored or
related affair off campus [**16] will result in disciplinary action. The same
rule will apply to every student regardless of age." App. at 726a-727a. We are
not impressed that this regulation, in and of itself, is sufficient to place the
college in a custodial relationship with its students for purposes of imposing a
duty of protection in this case. We assume that the average student arrives on
campus at the age of seventeen or eighteen, and that most students are under
twenty-one during the better part of their college careers. A college regulation
that essentially tracks a state law and prohibits conduct that to students under
twenty-one is already prohibited by state law does not, in our view, indicate
that the college voluntarily assumed a custodial relationship with its students
so as to make operative the provisions of § 320 of the Restatement (Second) of
Torts. See footnote 26, Supra.
Thus, we predict that the Pennsylvania courts would not hold that by
promulgating this regulation the college had voluntarily taken custody of
Bradshaw so as to deprive him of his normal power of self-protection or to
subject him to association with persons likely to cause him harm. Absent proof
of such a relationship, [**17] we do not believe that a prima facie case of
custodial duty was established in order to submit the case to the jury on this
theory.
28
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
28 See
Hegel v. Langsam, 29 Ohio Misc. 147, 273 N.E.2d 351, 55 Ohio Op.2d 476 (1971).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
B.
We next examine the facts adduced at trial to determine whether a special
relationship existed as a matter of law, which would impose upon the college
either a duty to control the conduct of a student operating a motor vehicle off
campus or a duty to extend to a student a right of protection in transportation
to and from off campus activities. We conclude that Bradshaw also failed
to meet his burden of proving either of these duties. Bradshaw's primary
argument is that the college had knowledge that its students would drink beer at
the picnic, that this conduct violated a school regulation and state law, that
it created a known probability of harm to third persons, and that knowledge by
the college of this probable harm imposed a duty on the college either to
control Rawling's conduct [**18] or to protect Bradshaw from
possible harm.
Although we are aware of no Pennsylvania decision that has addressed this
precise issue, the supreme court of that state has held that a private host who
supplies intoxicants to a visibly intoxicated guest may not be held civilly
liable for injuries to third parties caused by the intoxicated guest's
negligence. Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973). Only licensed
persons engaged in the sale of intoxicants have been held civilly liable to
injured parties, Id. at 239, 310 A.2d at 76 (citing Jardine v. Upper Darby
Lodge, 413 Pa. 626, 198 A.2d 550 (1964)), and the source of this liability
derives from the common law, Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367
(1960), as well as from a violation of Pennsylvania's Dram Shop statute, 47 P.S.
§ 4-493(1), Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965). Because
the Pennsylvania Supreme Court has been unwilling to find a special relationship
on which to predicate a duty between a private host and his visibly intoxicated
guest, we predict that it would be even less willing to find such a relationship
between a college and its student under the circumstances of this case.
29 [**19]
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
29 We
read the earlier superior court decision of Pennsylvania v. Randall, 183
Pa.Super. 603, 133 A.2d 276 (1957), Cert. denied, 355 U.S. 954, 78 S. Ct. 539, 2
L. Ed. 2d 530 (1958), to be inconsistent with the supreme court's subsequent
decision in Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973). The superior court
had interpreted "or other person" in the Dram Shop Act to mean persons other
than licensees, their servants or employees. Using this interpretation, a
private host could be held liable under the statute for serving minors. The
supreme court's pronouncement in Manning, however, is diametrically opposed to
that of the superior court: "Appellant asks us to impose civil liability on
nonlicensed persons, like appellees, who furnish intoxicants for no
remuneration. We decline to do so. While appellants' proposal may have merit, we
feel that a decision of this monumental nature is best left to the legislature."
454 Pa. at 239, 310 A.2d at 76.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*142] The centerpiece of Bradshaw's argument is that [**20]
beer-drinking by underage college students, in itself, creates the special
relationship on which to predicate liability and, furthermore, that the college
has both the opportunity and the means of exercising control over beer drinking
by students at an off campus gathering. These contentions miss the mark,
however, because they blur the distinction between establishing the existence of
a duty and proving the breach thereof. Bradshaw does not argue that beer
drinking is generally regarded as a harm-producing act, for it cannot be
seriously controverted that a goodly number of citizens indulge in this
activity. Our national public policy, insofar as it is reflected by industry
standards or by government regulation of certain types of radio-television
advertising, permits advertising of beer at all times of the day and night even
though Congress has banned advertisement of cigarettes
30
and the broadcasting industry has agreed to ban the advertisement of liquor.
31
What we know as men and women we must not forget as judges, and this panel of
judges is able to bear witness to the fact that beer drinking by college
students is a common experience. That this is true is not to suggest [**21]
that reality always comports with state law and college rules. It does not. But
the Pennsylvania law that prohibits sales to, and purchases by, persons under
twenty-one years of age, is certainly not a universal practice in other
countries,
32
nor even the general rule in North America.
33
Moreover in New Jersey, the bordering state from which the majority of Delaware
Valley College students come, App. at 744a-746a, the legal drinking age is
eighteen. Under these circumstances, we think it would be placing an impossible
burden on the college to impose a duty in this case.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
30 15
U.S.C. § 1335.
31
National Association of Broadcasters, The Television Code 11 (19th ed. 1976);
National Association of Broadcasters, The Radio Code 14 (20th ed. 1976).
32 For
example, the legal age for drinking beer in Austria varies from state to state,
ranging from fourteen to eighteen years; in Denmark, restaurants and hotels may
not serve persons under eighteen; in England and Wales, a sixteen year old may
purchase beer for consumption at a meal other than at a bar, otherwise the age
requirement is eighteen; in France, minors less than sixteen years old may not
enter bars unless accompanied by a parent or guardian, and must be eighteen in
order to be served drinks stronger than beer or wine; in the Federal Republic of
Germany, the legal age for drinking beer is sixteen and a juvenile over fourteen
accompanied by an adult may buy or consume wine or beer in a public place; in
Italy, the legal age is sixteen years; in the Netherlands, a hotel, restaurant
or cafe may not sell beer to persons under sixteen but municipalities may
prohibit by ordinance the sale to persons under twenty-one; in Norway, the legal
age for drinking beer is eighteen, subject to the right of municipalities to
impose tighter restrictions; in Sweden, the legal age is eighteen years; and in
Switzerland, sixteen years. Legal Drinking Age in the United Kingdom and
Continental Europe (November 1979) (Library of Congress Monograph, on file in
the Library of the United States Court of Appeals for the Third Circuit,
Pittsburgh Branch). [**22]
33 Of
the fifty states and the District of Columbia only thirteen jurisdictions still
retain the twenty-one year age requirement for the consumption of beer, while
two require twenty years of age and nine, nineteen years. The remainder of the
states permit beer drinking at age eighteen. Information, Please Almanac 822
(1979).
None of the Canadian provinces or territories retain the twenty-one year age
minimum. Seven place the legal drinking age at nineteen, and five at eighteen.
World Almanac 136 (1979).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Without explicating its rationale in detail, the state of New York has also
refused to impose liability upon an institution of higher learning under
somewhat similar circumstances. See Mintz v. New York, 47 A.D.2d 570, 362
N.Y.S.2d 619 (1975); Rubtchinsky v. State University of New York, 46 Misc.2d
679, 260 N.Y.S.2d 256 (1965); Munson v. Board of Education, 17 A.D.2d 687,
[*143] 230 N.Y.S.2d 919 (1962). See also Perkins v. State Board of Education,
364 So.2d 183 (La.App.1979).
Therefore, we conclude that Bradshaw failed to establish a prima facie
case against the college that it [**23] should be charged with a duty of
custodial care as a matter of law and that the district court erred by
submitting the case to the jury.
IV.
Marjorie Moyer, the licensee who sold the beer to the minor students, is liable
for injuries proximately resulting therefrom, Jardine v. Upper Darby Lodge, 413
Pa. 626, 198 A.2d 550 (1964), unless she can demonstrate circumstances that
remove her from the strictures of the general rule. She attempts to meet the
task by arguing that there was insufficient evidence of Rawlings'
intoxication to supply the causal link between the sale and the injury. Her
argument must fail because, as we have previously concluded, there was
sufficient evidence to submit the issue of the driver's intoxication to the
jury. Witness Wylde testified that he, Rawlings, and Bradshaw were
at the picnic all afternoon, were among the last to leave, and that in his
opinion, Rawlings was "high." When directly asked whether Rawlings
was under the influence of alcohol as he drove his car from the picnic grounds
towards Union Street, Wylde answered that he was. App. at 98a. Also significant
was Rawlings' testimony that although not seriously injured in the
accident, he had [**24] no recollection of any of the events from sometime near
the end of the picnic until after the collision occurred. We therefore conclude
that no exception removed licensee Moyer from the Pennsylvania general rule
imposing liability under the circumstances of this case, in which the beer was
ordered by an underaged member of the sophomore class for use at a sophomore
class picnic. Although the delivery was signed for by a student of legal age,
the beer distributor had reason to know that the great majority of drinkers who
would consume the beer were underaged.
V.
The Borough of Doylestown argues that it should not be subject to liability
because the negligence of Rawlings was a superseding cause as a matter of
law. The district court ruled, however, that the question was a factual one and
submitted it to the jury for resolution. This ruling was appropriate under the
Pennsylvania law on superseding cause as set forth in Estate of Flickinger v.
Ritsky, 452 Pa. 69, 75, 305 A.2d 40, 43 (1973):
It is easily seen that this statement of the law, like the
rules controlling the question of what conduct is negligent presents Fact
questions of its own force. An intervening negligent [**25] act will not be a
superseding cause relieving the original negligent actor from liability If that
actor at the time of his negligent act Should have realized that another
person's negligence might cause harm; or, if a Reasonable man would not regard
the occurrence of the intervening negligence as Highly extraordinary ; or, if
the intervening act is not Extraordinarily negligent. What the original actor
should have realized and what a reasonable man would say was highly
extraordinary are, of course, fact questions which must in the majority of cases
be left to the jury.
Doylestown further argues that any liability extending to it must be predicated
on the theory that it was negligent in failing properly to warn of the existence
of dips and that it cannot be held liable of this theory because there was proof
that Rawlings had notice of the dips. This argument must also fail
because failure to warn was only one of several alternative theories advanced by
the plaintiff against the borough. Plaintiff argued and supplied sufficient
evidence for the jury to find that Doylestown was negligent in creating and
maintaining the dips, which presented an unreasonable risk of harm to the
public. [**26] Evidence tended to show that simple culverts could have
completely done away with the dangerous dips, that the borough failed to lower
the speed limit on Union Street to a safer speed, and that it failed to place
stop signs [*144] at the preceding intersection as an alternative safety
measure.
VI.
Bradshaw's cross-appeal is conditioned on our granting a new trial in
favor of the appellants. He asks this court not to apply the leading
Pennsylvania appellate decision in Havens v. Tonner, 243 Pa.Super. 371, 365 A.2d
1271 (1976), previously followed by this court in Vizzini v. Ford Motor Co., 569
F.2d 754 (3d Cir. 1977), which holds that evidence of inflationary trends may
not be introduced on damage awards. Because we are uncertain whether the
cross-appeal is still being pressed in the face of our partial reversal of the
district court's judgment, we meet this contention on the merits and conclude
that the district court did not err. We rely on our statement in Vizzini, in
which Chief Judge Seitz, writing for the court, stated:
The Supreme Court of Pennsylvania has not yet considered
whether or in what manner inflation or productivity increases may be accounted
for in damage [**27] awards. . . . But we believe that a recent decision of the
Pennsylvania Superior Court, Havens v. Tonner . . . is evidence of the thinking
of the Pennsylvania courts on this point.
In Havens, the Pennsylvania Superior Court held that
evidence of increased productivity, was "simply a substitute for inflation and
equally speculative and inadmissible in a calculation of future earnings," Id.
(243 Pa.Super.) at 378, 365 A.2d at 1274. The Court went on to say that
(a)ny estimate of future earnings over a substantial period
of years based upon economic predictions is necessarily extremely speculative in
nature. Much more satisfactory is evidence of the earning potential of the
individual in question.
243 Pa.Super. at 380, 365 A.2d at 1275. Thus, evidence of
increased productivity should not be admitted at a new trial.
569 F.2d at 768.
VII.
The judgment of the district court will be affirmed in all respects except that
part imposing liability against Delaware Valley College, which we reverse and
direct that a judgment in favor of Delaware Valley College be entered.
Accordingly, the judgment of the district court will be affirmed at Nos.
79-1409, 79-1410, [**28] and 79-1412; the judgment of the district court at
No. 79-1411 will be reversed.
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