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June 3, 1997


Appeal from the Order dated March 12, 1996 In the Court of Common Pleas of Delaware County, Civil, No. 93-14334. Before FITZPATRICK, J.

Before: Beck, J., Saylor, J. *fn1 And Montemuro, J.* Opinion BY Montemuro, J.

The opinion of the court was delivered by: Montemuro


FILED JUN 03 1997

This is an appeal by permission, pursuant to 42 Pa.C.S. 702(b), from the Order of the Delaware County Court of Common Pleas denying the motion of Appellant, Delaware County Transportation Service, Inc., for summary judgment. In its certified issue for review, the trial court asks this Court to determine "whether, under the specific facts of this case, a common carrier has a continuing duty to intoxicated passengers who have alighted from the bus and are subsequently killed in a motor vehicle accident." (Trial Ct. Order 2/27/96). For the reasons set forth below, we conclude that there is no continuing legal duty.

The underlying action stems from a fatal motor vehicle accident which occurred after the occupants left a bachelor party. The uncontroverted facts reveal the following. On March 14, 1992, the decedents and approximately twenty-five invited friends boarded a school bus at the Glenolden Elementary School parking lot in Delaware County, Pennsylvania. One of the bachelor party participants had chartered the bus and its driver through a contract with Delaware County Transportation Services, Inc. (DCTS) and Leo F. Byrne Transportation Company; the bus was chartered for five hours to transport the bachelor party participants to various bars and night clubs and then return them at the end of the evening to the predesignated Glenolden Elementary School site. The participants loaded the bus with approximately ten to twenty cases of beer which they consumed during their five hour bus ride, at the same time stopping at four to five bars in the Philadelphia area.

At approximately 2:30 a.m., March 15, 1992, the bus returned to the Glenolden Elementary School lot and the entire party alighted. Three of the participants, Joseph Knoud, Joseph Andiario, and Robert Markunas, then entered a Jeep belonging to Craig Galante which was parked in the school lot. Although there is some variation as to where the men went after they left the school, it is clear from the record that they made at least one stop in an Acme parking lot so that Joseph Knoud could call his girlfriend. After they left the Acme lot, however, Galante, who was at the wheel, lost control of the vehicle and crashed into a concrete wall, killing passengers Knoud and Andiario. The accident occurred forty minutes after the men alighted from the bus and left the school lot.

On September 15, 1993, Appellees, the administrators of the Knoud and Andiario Estates, filed an amended complaint requesting punitive damages and asserting negligence against Craig A. Galante, *fn1 Delaware County Transportation Service, Inc. (DCTS), and Leo F. Byrne Transportation Company, Inc. arising from the fatal motor vehicle accident. Appellant filed preliminary objections which were denied by Order dated July 27, 1994. On September 1, 1995, Appellant filed a Motion for Summary Judgment claiming that DCTS owed no duty to the decedents at the time of their death. This motion was denied by Order dated January 29, 1996, and, on February 27, 1996, pursuant to 42 Pa.C.S. 702(b), the trial court Judge certified its January 29 Order for appeal. On May 24, 1996, this Court granted Appellant's Petition for Permission to Appeal.

Our review of a summary judgment decision is plenary. Gamble Farm Inn, Inc. v. Selective Ins. Co., 440 Pa. Super. 501, 504, 656 A.2d 142, 143 (1995). Summary judgment is properly entered where the uncontroverted allegations of the pleadings and other permissible materials such as depositions, answers to interrogatories, admissions, and affidavits reveal that there is no genuine issue of material fact and the that movant is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b), 42 Pa.C.S.; Burke v. Yingling, 446 Pa. Super. 16, 19, 666 A.2d 288, 289 (1995). Additionally, as in the instant case, "it is clear that if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action." Godlewski v. Pars Mfg. Co., 408 Pa. Super. 425, 431, 597 A.2d 106, 109 (1991). *fn2 We must reverse the trial court's ruling on a motion for summary judgment if the trial court has committed an error of law or a clear abuse of discretion. Kelly by Kelly v. Ickes, 427 Pa. Super. 542, 547, 629 A.2d 1002, 1004 (1993).

In this case, the trial court denied Appellant's Motion for Summary Judgment and asks this Court to determine whether Appellant's duty of care to its passengers continued after the intoxicated participants alighted at the school lot and entered a separate vehicle.

Any action in negligence is premised upon the existence of a duty owed by one party to another. Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 8, 564 A.2d 1244, 1248 (1989). With regard to the duty of a carrier, it is a well-established principle of law that a carrier, whether common or contractual, is held to the highest degree of care in carrying its passengers to their destination and enabling them to alight safely. Coyne v. Pittsburgh Rys. Co., 393 Pa. 326, 329-30, 141 A.2d 830, 832 (1958). A carrier's duty ends when the passenger has had "'a reasonable opportunity to alight and pass out of danger.'" Reilly by Reilly v. Southeastern Pa. Transp. Auth., 335 Pa. Super. 488, 491, 484 A.2d 1390, 1391 (1984)(quoting Harris v. DeFelice, 379 Pa. 469, 473, 109 A.2d 174, 176 (1954))(holding that although Appellant argued carrier owed no duty when accident occurred, court properly charged jury on duty of carrier since testimony conflicted regarding whether, when the passenger alighted, he immediately ran in front of the bus or took clear path to sidewalk and then turned back and ran). See also Coyne, 393 Pa. at 333, 141 A.2d at 834 (holding carrier that discharges passengers at a point which is not a regular stop has a duty to exercise care commensurate with the surroundings so as to avoid introducing passengers into any danger of which driver is aware or should be aware); Lebanon Coach Co. v. Carolina Casualty Ins. Co., 450 Pa. Super. 1, 675 A.2d 279, 290 (1996)(holding duty of carrier to minor continued after she alighted from the school bus but only until she reached the safety of the other side of the street she had to cross to reach her school); Tyler v. Insurance Co. of North America, 311 Pa. Super. 25, 457 A.2d 95 (1983)(holding shoulder of the road was the place of safety where carrier's duty to allow passenger to safely alight would end; thus carrier duty to passenger existed where bus stopped five feet away from the shoulder, and when passenger alighted, she took four steps and was struck by a passing motorcycle).

Further, we note that although a carrier is not an insurer of its passengers' safety, our courts have held that a carrier has a duty to protect its on-board passengers from the violent or criminal behavior of third persons to the degree possible which may include: quelling a disorder which may result in undeserved injury to a patron; moving the carrier away from a crowd of assailants; or restraining or ejecting disorderly passengers. See, e.g., La Sota v. Philadelphia Transp. Co., 421 Pa. 386, 219 A.2d 296 (1966)(concluding that when it became evident the "commotion" on carrier was getting out of hand, driver had duty to preserve order and protect passengers from violence of others by quelling the disorder or ordering "troublemakers" to leave the carrier); Mangini v. Southeastern Pennsylvania Transp. Auth., 235 Pa. Super. 478, 344 A.2d 621 (1975)(holding duty to protect passengers by moving carrier away from mob of boys throwing objects against it). Essentially, other than the duty to protect the passengers while they are on board the carrier, it is clear from a review of Pennsylvania precedent, that this duty continues only so far as to provide a safe ingress and egress from the carrier. Acton v. Pennsylvania-Reading Seashore Lines, 138 Pa. Super. 605, 607, 11 A.2d 203, 204 (1940).

Appellees contend, however, that Appellant's duty to the passengers continued beyond their exit from the bus because, upon completion of the five hour trip, the driver "abandoned" the "completely intoxicated" passengers with their cars, and, therefore, the passengers did not alight at a safe location. (Appellees' Brief at 14). For support, Appellees rely heavily upon Warren v. Pittsburgh & Butler Ry. Co., 243 Pa. 15, 89 A. 828 (1914) and Cassaro v. Zodiac Tours and Travel, Inc., 4 D. & C. 4th 132 (1989). In Warren, a visibly intoxicated passenger boarded a train, and when asked for additional fare, refused. Id. at 17, 89 A. at 829. Upon a second request for the fare, the passenger refused either to pay the fare or name his destination, and the conductor ordered him to leave the train. Id. The intoxicated passenger, who was incoherent and staggering, was left on a road 13 feet wide, on one side of which was the defendant's track and a small, vacant way station. Id. The passenger lingered for approximately an hour, then attempted to walk off when, several hundred feet from the station, he staggered diagonally across the road onto the tracks and fell in front of an approaching train. Id. at 18, 89 A. at 829. After trial, a verdict was rendered and judgment entered in favor of the decedent, and the defendant-railway company filed for judgment notwithstanding the verdict which was denied. Id. at 16, 89 A. at 828. In affirming the judgment, our Supreme Court recognized that when a carrier is aware of the intoxication of a passenger, its duty requires the carrier to give the passenger that degree of attention which consideration for his safety demands beyond that ordinarily bestowed on passengers. Id. at 19, 89 A. at 829.

In the instant case, Appellees seize upon this duty language in Warren and argue that because of their condition, the parking lot of the elementary school was not a safe location to return the bachelor party participants because they were "abandoned" with their cars, and, therefore, left to drive home drunk which ultimately caused the fatal automobile accident. Essentially, under the facts of the instant case, Appellees argue that Appellant's carrier duty should extend to protecting the participants from drinking and driving once they alighted from the bus. *fn3 To this end, Appellees rely upon Warren, as well as cases from other jurisdictions, *fn4 which recognize a carrier's "higher duty of care" for intoxicated or disabled ...

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