The opinion of the court was delivered by: JOYNER
The defendant in this diversity case, Group Voyagers, Inc., d/b/a Globus ("Globus"), has submitted a motion asking us to dismiss the plaintiffs' complaint on the grounds that it fails to state a claim on which relief can be granted. Alternatively, the defendant asks that we issue an order striking Exhibit "A" to the complaint. For the reasons that follow, we will deny the defendant's motion in its entirety.
The facts, as recited in the complaint, are as follows. The plaintiffs are Betty and Carl Miller, a wife and husband who contracted with Globus to take a two-week tour in Australia in 1994. Pursuant to their agreement, the Millers paid consideration to Globus in exchange for air travel, a tour guide, hotel accommodations and sightseeing excursions. The Millers were assured that their tour guide would be one of the "top professionals 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 ...