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EMERSON v. ADULT COMMUNITY TOTAL SERVS.

January 6, 1994

ROBERT C. EMERSON and RONALD EMERSON, Co-Executors of the Estate of Kenneth H. Emerson, Deceased, and as Individuals, Plaintiffs,
v.
ADULT COMMUNITY TOTAL SERVICES, Inc. and TOTAL CARE SERVICES, Inc. and GENESIS HEALTH VENTURES, Inc. Defendants.



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 Joyner, J.

 Presently before the Court is the motion of defendants, Adult Community Total Services, Inc. ("ACTS"), Total Care Services, Inc. and Genesis Health Ventures, Inc., for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants are the owners and/or operators of Spring House Estates, an adult retirement community located in Spring House, Pennsylvania. On February 22, 1990, Kenneth Emerson entered into a resident agreement with ACTS, whereby defendants agreed to provide living accommodations, meals and other services throughout Mr. Emerson's lifetime upon payment of an $ 83,000 entrance fee along with monthly dues. After paying these fees, Mr. Emerson resided at Spring House Estates for approximately five and a half months until he suffered a stroke while in his apartment. He was found by defendants' staff two days later, and subsequently died approximately two weeks later while in the hospital.

 Thereafter, plaintiffs filed a three-count complaint against defendants seeking damages under the wrongful death act, 42 Pa.C.S.A. § 8301 and the survival act, 42 Pa.C.S.A. § 8302. Both Counts One and Two of the complaint sound in negligence and allege that defendants had "a duty to provide an effective and dependable system of security and monitoring to Emerson and the other residents for their own physical protection and for the benefit of their continued health, including, but not limited to, duties to maintain an effective passive monitoring system and a medical response system." Complaint, para. 11. Plaintiffs essentially claim that if there had been such a system at Spring House Estates, Mr. Emerson would have been found immediately after his stroke and possibly would not have died as a result. Plaintiffs' third count seeks rescission of the resident agreement between Kenneth Emerson and defendants along with a refund of the $ 83,000 entrance fee paid by Kenneth Emerson. Plaintiffs base this count on claims of both misrepresentation and unjust enrichment.

 Defendants now seek summary judgment claiming they cannot be held liable in negligence because they had no duty to provide any type of monitoring system. They also claim that there is no evidence of any misrepresentations or unjust enrichment with respect to the resident agreement and therefore plaintiffs are not entitled to rescission. For the reasons explained more fully below, we agree with defendants and will grant summary judgment on their behalf.

 Standard

 In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The court is required to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 256, 106 S. Ct. at 2512. While the movant bears the initial burden of demonstrating an absence of genuine issues of material fact, the nonmovant must then establish the existence of each element of its case. J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir. 1990), cert. denied, 499 U.S. 921, 111 S. Ct. 1313, 113 L. Ed. 2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)).

 A. Negligence

 We first address whether or not defendants owed a duty to Mr. Emerson so as to raise an issue of material fact with respect to defendants' liability in negligence under the wrongful death act and the survival act. Initially, we note that the determination of whether a duty exists is a question of law to be decided by the court. Burton v. Terry, 140 Pa. Commw. 336, 592 A.2d 1380, 1383 (1991). "In the context of a negligence action, it is fundamental that the plaintiffs establish the duty owed by [defendants], the breach of which might give rise to injuries alleged to be suffered by the plaintiffs." Otto v. American Mutual Ins. Co., 241 Pa. Super. 423, 429, 361 A.2d 815, 818-19 (1976), vacated on other grounds, 482 Pa. 202, 393 A.2d 450 (1978). If the law does not impose a duty on defendants to act under a certain set of circumstances, a claim for negligence will not survive. Wright v. Federal Machine Co., Inc., 535 F. Supp. 645, 650 (E.D.Pa. 1982); Otto, 241 Pa. Super. at 429, 361 A.2d at 819.

 Duties can arise from common law, by statute and by contract. Walker v. Pennsylvania Co. For Insurances on Lives and Granting Annuities, 263 Pa. 480, 485, 106 A. 795, 796 (1919). It appears that defendants have no duty to provide monitoring systems either in common law or by statute, therefore, defendants' duty to provide such systems can only arise by contract. It is well settled that in construing terms of a contract, the contractual provisions should be looked at as a whole in order to determine the intent of the parties. Marshall v. Port Auth., 524 Pa. 1, 568 A.2d 931, 936 (1990). "Where the words of a contract are clear and unambiguous... the intent of the parties is to be found in the express language of the contract." Darrt Dev. Co. v. Tri-State Asphalt Corp., 415 Pa. Super. 239, 609 A.2d 171, 173 (1992). See also Amoco Oil Co. v. Snyder, 505 Pa. 214, 478 A.2d 795, 798 (1984) (courts focus on the terms of the contract as they are expressed, rather than what may have been silently intended). Likewise, words in a contract are to be given their ordinary, intended meaning. Amoco, 505 Pa. 214, 478 A.2d 795, 798 (1984).

 Plaintiffs claim that section 8(M) of the resident agreement between Mr. Emerson and defendants is the basis of the duty to provide monitoring systems. Section 8(M) of the resident agreement states "A trained security team shall be provided daily by Estates at the retirement community." Plaintiffs claim that the relationship between Mr. Emerson and defendants was one in which such a duty was required. They further contend that this duty also arises by virtue of another provision of the agreement which provides residents with access to medical attention twenty-four hours a day in case of an emergency if residents call either the security office or the resident nurse's office. Section 8(L) of the agreement.

 After careful review of the entire agreement, we hold there is no contractual duty by defendants to provide any sort of monitoring system for the security and health of residents at Spring House Estates. First, neither of the provisions cited by plaintiffs contemplates any duty by defendants to provide this type of system. While section 8(M) provides for a "trained security team," it is likely that the parties intended this to mean that there would be a staff of security guards located in the resident community. The words "security team" imply that people were there to look out for the residents' safety. What "security team" does not imply, as plaintiffs contend, is that there would be some sort of system established to monitor residents' health twenty-four hours a day. If this was what the parties intended, then they should have specifically stated that. Further, even though defendants agreed to provide access to medical treatment twenty-four hours a day, the resident had the obligation to call either the nurse's office or the security guard's office to obtain that service.

 Moreover, the resident agreement as a whole further demonstrates there was no duty on defendants because under the agreement, the parties simply had a landlord/tenant relationship whereby defendants provided Mr. Emerson with a place to live in exchange for consideration. While the difference between a regular landlord/tenant situation and this one is that other services such as meals and access to medical treatment were provided by ...


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