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May 23, 1985

JOSEPH and LYNN SENESE, Plaintiffs

NEALON, Chief Judge

The opinion of the court was delivered by: NEALON

Plaintiffs filed this diversity action on July 31, 1984, as a result of injuries sustained when Joseph Senese attempted to exit the cab of Defendant Peoples's truck. On February 15, 1985, Defendant Peoples filed a Motion for Summary Judgment and brief in support thereof. The plaintiffs filed a Brief in Opposition to the motion dated March 22, 1985 and Defendant Peoples filed a reply brief dated March 28, 1985. Both parties have also submitted letters to the court responding to arguments made by their opponent. The motion is now ripe for disposition. For the reasons set forth below, the court will grant the defendant's motion.

 This action arises out of injuries sustained by Joseph Senese when he fell out of or off a motor vehicle on September 17, 1983. Immediately prior to this incident, Senese and Peoples had been drinking alcoholic beverages at the Defendant Pinehurst Lodge. They left the Pinehurst Lodge at approximately 4:00 P.M. and proceeded south on Route 519 in Peoples's pickup truck operated by Peoples with Senese seated as a passenger. While the vehicle was in operation, Senese attempted to exit the cab of the truck, whereupon he fell to the pavement. The plaintiff alleges Senese attempted to exit the truck through an open window on the passenger side of the vehicle and that Peoples did not attempt to brake his vehicle or restrain the plaintiff until after Senese had fallen out of the window. The plaintiff further contends that at the time of the incident Peoples was driving erratically and/or at an excessive rate of speed. Defendant Peoples, however, avers that Senese fell from the cab of the truck while climbing out the window from the front of the truck in order to reach the back. Peoples also contends that he was not traveling erratically or at an excessive rate of speed and that he immediately brought his vehicle to a stop when he realized what had happened.

 The elements necessary to maintain a negligence action include: "[1] a duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct; [2] a failure to conform to the standard required; [3] a causal connection between the conduct and the resulting injury and [4] actual loss or damage resulting to the interests of another." Morena v. South Hills Health System, 501 Pa. 634, 642 n.5, 462 A.2d 680 (1983). Therefore, the plaintiff must first establish that the defendant breached a duty of care owed to the plaintiff in order for this action to be continued. Where the defendant's alleged negligence consists of a failure to act, the duty not to act negligently is quite limited. "It extends to those who have relied in some special way upon the defendant, to those whom defendants have helped place in a position where they are likely to depend upon his avoiding negligent omissions. . . . Thus, . . . [one] may have a moral obligation to extend a helping hand [under particular circumstances], but he does not necessarily have a legal obligation to do so." Carrier v. Riddell, Inc., 721 F.2d 867, 868-69 (1st Cir. 1983) (emphasis in original). See also Yania v. Bigan, 397 Pa. 316, 321-22, 155 A.2d 343 (1959); Restatement (Second) of Torts §§ 314, 314A (1965).

 The Restatement (Second) of Torts Section 314 which has been adopted in Pennsylvania, see Yania v. Bigan, 397 at 322, states: "Duty to Act for Protection of Others[:] The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." Id. See also Yania v. Bigan, 397 Pa. at 322. The comments to this section indicate that this general rule applies "irrespective of the gravity of the danger to which the other is subjected and the insignificance of the trouble, effort, or expense of giving him aid or protection." Id. § 314 Comment c. The rule, however, does not apply where the peril in which the other is placed is due "to any active force which is under the actor's control." Id. § 314 comment d. The Restatement gives the following illustration to explain this principal:

A, a trespasser in the freight yard of the B Railroad Company, falls in the path of a slowly moving train. The conductor of the train sees A, and by signalling the engineer could readily stop the train in time to prevent its running over A, but does not do so. While a bystander would not be liable to A for refusing to give such a signal, the B Railroad is subject to liability for permitting the train to continue in motion with knowledge of A's peril. *fn1"

 Id. § 314 comment d Illustration 3.

 There are a number of special relationships which give rise to a duty to aid or protect another. Section 314A of the Restatement lists a number of these special relationships:

(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid if it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
(4) 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 opportunities for ...

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