in the business, to ensure that your trip is a success," and that the hotels would be "comfortable, clean and attractive." The agreement also contained a clause limiting Globus's liability, as follows: "The tour participant agrees that neither the Company nor its affiliates shall be liable for any damage, loss (including personal injury, death and property loss) or expense occasioned by any act or omission of any supplier providing tour services or any other person."
The Millers began their tour on October 15, 1994. Globus arranged for them to stay at the Manhattan hotel during their visit to Sydney, where Mrs. Miller contracted scabies as a result of the unsanitary condition of her hotel room. As a result of her affliction, Mrs. Miller experienced extreme discomfort and was compelled to forego a number of the sightseeing trips and excursions. Mrs. Miller informed the tour guide of her condition, but the guide failed to take adequate steps to address the situation. Later during their tour, while staying at the Colonial Club in Cairns, burglars broke into the Millers' hotel room and pilfered cash in the amount of $ 1,520. The Millers allege that Globus was negligent in that it had notice of the fact that the Manhattan hotel was maintained in an unsanitary fashion and that thefts regularly occurred at the Colonial Club, and still arranged for accommodations in the two hotels. In this way, the Millers contend that Globus failed to ensure that the accommodations it arranged for its clients were reasonably clean and secure, thereby causing the plaintiffs' harm and loss.
On August 25, 1995, the Millers filed the instant complaint in this Court. The complaint contains three counts, including (1) a negligence claim; (2) Mr. Miller's loss of consortium claim grounded in negligence; and (3) a claim based on breach of contract. Globus responded with the instant motion, in which it contends that it cannot be liable to the Millers under a negligence theory, since it neither owed them a duty of care nor caused the Millers' harm. Moreover, Globus contends that the Millers cannot seek relief from it because of the liability limitation clause in the agreement, and must instead pursue their claims against the offending hotels directly. Finally, Globus contends that the Millers cannot recover under contract theory, since it fulfilled all of its contractual obligations. We turn now to address these contentions as applied to the standard for a motion filed under Fed. R. Civ. P. 12(b)(6).
A. Standard for a Rule 12(b)(6) Motion
A motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6) is the proper means by which a defendant challenges the legal sufficiency of a complaint. Jones v. Hinton, 847 F. Supp. 41, 42 (E.D. Pa. 1994). To survive a motion to dismiss, the plaintiff must set forth facts which state a claim as a matter of law. Taha v. INS, 828 F. Supp. 362, 364 (E.D. Pa. 1993). The court must accept as true all of the factual averments in the complaint and extend to the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Thus, a complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim which would entitle him to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
B. Counts I and II: Negligence
In order to sustain a cause of action in negligence under Pennsylvania law, plaintiffs must show that (1) defendant owed them a duty of care; (2) defendant breached that duty; and (3) a causal link existed between the breach of duty and plaintiffs' injury and harm. Markovich v. Bell Helicopter Textron, Inc., 805 F. Supp. 1231, 1236 (E.D. Pa.)(citations omitted), aff'd 977 F.2d 568 (3d Cir. 1992); Klein v. Council of Chemical Associations, 587 F. Supp. 213, 222 (E.D. Pa. 1984)(citations omitted). In the instant action, Globus first argues that it owed no duty to the Millers, other than the obligation under the contract to provide transportation, sightseeing opportunities and hotel accommodations. It also contends that it cannot be liable because it did not cause the Millers' injuries.
1. Duty of Care
It is thus clear that Globus cannot be liable to the Millers unless it owed them a duty of care. Monahan v. Toro Co., 856 F. Supp. 955, 965 (E.D. Pa. 1994). Courts in Pennsylvania have held that the existence of a duty "'is predicated on the relationship existing between the parties at the relevant time.'" Zanine v. Gallagher, 345 Pa. Super. 119, 497 A.2d 1332, 1334 (1985)(quoting Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680, 684 (1983)). The duty question arises when the defendant's conduct exposes the plaintiff to risk of harm. Snyder v. ISC Alloys, Ltd., 772 F. Supp. 244, 253 (W.D. Pa. 1991). Thus, foreseeability is the basis on which a duty is established. In other words, the defendant owes the plaintiff a duty if the defendant's actions are "'unreasonable, or expose the plaintiff to an elevated risk of foreseeable harm.'" Brantner v. Black & Decker Mfg. Co., 831 F. Supp. 460, 462 (W.D. Pa. 1993) (quoting Mohler v. Jeke, 407 Pa. Super. 478, 595 A.2d 1247, 1252 (1991)).
Upon review of the Millers' complaint, we conclude that it properly articulates a legal duty owed and a breach thereof. Specifically, the Millers have asserted that Globus had knowledge of both the unsanitary nature of the Manhattan Hotel in Sydney and the rash of thefts that plagued the Colonial Club in Cairns. Further, the Millers contend that Globus arranged for accommodations for them at the two hotels, despite possessing knowledge of their unsuitability. As a result, we conclude that under the facts presented in the complaint, the risk of harm to the Millers was foreseeable to Globus. Accordingly, we decline to dismiss the negligence-based claims on the basis that Globus owed no duty of care to the Millers.
2. "But For" Causation
We likewise conclude that the Millers have adequately pleaded their negligence claims with respect to the causation element. Of course, in order to recover under Pennsylvania law, the plaintiff must show that the defendant caused the plaintiff's harm. Our Court of Appeals has described the plaintiff's burden regarding causation as follows:
Proof of causation involves two elements: proof of cause in fact and proximate cause. Cause in fact or "but for" causation requires proof that the harmful result would not have come about but for the conduct of the defendant. Proximate cause, in addition, requires proof that the defendant's conduct was a substantial contributing factor in bringing about the harm alleged.
Robertson v. Allied Signal, Inc., 914 F.2d 360, 366-67 (3d Cir. 1990)(discussing Pennsylvania law). Globus does not make an argument regarding proximate cause, but instead simply contends that the offending hotels, and not it, caused the alleged injuries. Of course, the law does not limit liability to those most directly responsible for a certain harm. Indeed, under a "but for" test, it is clear that Globus cannot prevail here by arguing that it did not cause the Millers' injuries: if Globus had acted on the information it allegedly possessed regarding the Manhattan Hotel and the Colonial Club, the Millers would not have suffered the injuries that are at the heart of this lawsuit. As a result, we must reject Globus's argument regarding causation.
3. Liability Limitation Clause
Globus's final argument in favor of dismissal of the negligence claims is that they must fail in light of the liability limitation clause. As we noted above, the parties agreed that Globus would not be liable for any harm caused "by any act or omission of any supplier providing tour services or of any other person." Globus points out that such clauses are explicitly authorized by Title 14 of the Code of Federal Regulations, which provides in relevant part that
Contracts between charter operators and charter participants shall state: