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BEIRNE v. SEC. HEATING — CLEARWATER

March 21, 1991

ROBERT J. BEIRNE, ADMINISTRATOR OF THE ESTATE OF JAMES C. BENJAMIN, PLAINTIFF,
v.
SECURITY HEATING — CLEARWATER POOLS, INC., DEFENDANT.



The opinion of the court was delivered by: McCLURE, District Judge.

MEMORANDUM

BACKGROUND

Plaintiff Robert J. Beirne filed this diversity action*fn1 in his capacity as Administrator of the Estate of James C. Benjamin, to recover for Benjamin's death as a result of a fire that occurred at the residence of his mother, Winona Benjamin, on January 10, 1988. Defendant Security Heating — Clearwater Pools, Inc. ("Security Heating") installed a wood-oil combination furnace in the basement of the Benjamin residence in November, 1987, and plaintiff contends that Security Heating's negligence in failing to inspect the wiring in the house and discover certain defects caused the fatal fire.

Trial is now scheduled to commence in April, 1991, and before the court are: (1) a motion to trifurcate filed January 11, 1991 by defendant Security Heating (2) a motion in limine filed January 14, 1991 by plaintiff, which seeks to preclude the introduction of evidence that James Benjamin had a blood alcohol level of 0.17 percent at the time of his death.*fn2 Based on the record before us and the arguments advanced by the parties, we will enter an order granting both motions.

  A.  Plaintiff's motion to preclude evidence of Benjamin's
      blood alcohol level at the time of his death

Security Heating proposes to call G. Thomas Passananti, Ph.D. as an expert witness to testify that Benjamin had a blood alcohol level of 0.17 percent at the time of his death and that this impaired his judgment, impeded his ability to escape the fire and was a causal factor contributing to his death.

Our principal difficulty with the admission of this evidence is that it is not relevant to any of the issues before the jury. Although the defendant argues that it is evidence of contributory negligence, there is no basis for a finding of contributory negligence on Benjamin's part. He did not breach any duty conceivably owed to the defendant or to any other party.

The same principles apply to contributory negligence as apply to negligence. Four elements are required to prove negligence: (1) a duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks; (2) a failure on his part to conform to the standard required; (3) a reasonably close causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting to the interests of another. Casey v. Geiger, 346 Pa. Super. 279, 499 A.2d 606, 612 (1985), alloc. denied, 516 Pa. 638, 533 A.2d 710 (1985), citing Prosser, Law of Torts, § 30 at 143 (4th ed. 1971). A duty is an obligation which the law recognizes as requiring an individual to conform to the legal standard of reasonable conduct in light of the apparent risk. Sacks v. Thomas Jefferson University Hospital, 684 F. Supp. 858, 859 (E.D.Pa. 1988) and Casey, supra, 499 A.2d at 612, citing Prosser, Law of Torts, § 53 at 970 (4th ed. 1971). If a negligence claim is based on circumstances for which the law imposes no duty of care, there is no cognizable claim. Sacks, supra, 684 F. Supp. at 859, citing Restatement (Second) of Torts, § 281 (1965).

The critical question is, therefore, whether Benjamin's conduct on the night of the fire conceivably breached any duty owed to the defendant. On the night of the fire, Benjamin consumed alcohol, went to his mother's house and fell asleep on the sofa. When fire broke out, he failed to escape. From this scenario, we are unable to fathom how Benjamin breached any duty conceivably owed to the defendants or to any one else. Defendant's contributory negligence claim is based on circumstances for which the law imposes no duty of care and must fail for that reason.

The defense of intervening or superseding cause is likewise unavailable as a basis for introducing Benjamin's intoxication. Intervening cause applies only to the unforeseeable negligence of a third party and is not properly applied to the plaintiff's conduct. Carlotta v. Warner, 601 F. Supp. 749 (D.C.Ky. 1985). It also applies only if the subsequent conduct was negligent and not reasonably foreseeable, and we have already concluded that there is no basis for a finding of negligence on Benjamin's part. DiRago v. American Export Lines, Inc., 636 F.2d 860, 867 (3d Cir. 1981) (Superseding cause applies only in exceptional cases.); Herman v. Welland Chemical, Ltd., 580 F. Supp. 823, 828 (M.D.Pa. 1984) (Nealon, C.J.) and Wyke v. Ward, 81 Pa.Cmwlth. 392, 474 A.2d 375, 382 (1984).

In light of all of these considerations, we can conceive of no basis for the admission of evidence that Benjamin consumed alcohol on the night of the fire to show contributory negligence or to prove intervening cause. Defendant will, therefore, be precluded from introducing such evidence during the liability phases ...


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