The opinion of the court was delivered by: Pollak, J.
Defendant Universal Technical Institute ("UTI"), a Delaware corporation that operates technical training schools, has filed a Motion to Dismiss (docket no. 34) the amended complaint (docket nos. 10, 33) filed by plaintiffs in this diversity suit. Plaintiffs Gail Fitzpatrick, mother of decedent Colin Fitzgerald, and the Estate of Colin Fitzpatrick have responded (docket no. 36). Defendant, without requesting the court's permission, has filed a reply (docket no. 37). See Local Rule 7.1(c); King v. Twp. of East Lampeter, 17 F. Supp.2d 394, 406 (E.D. Pa. 1998). Plaintiffs have filed a sur-reply (docket no. 38) after requesting leave to do so.
I. Background and Procedural History
In addressing a motion to dismiss, the court assumes the truth of the complaint's factual recitals:
Plaintiff Gale Fitzpatrick is the mother of Colin Fitzpatrick and serves as administratrix of his estate, which is also a plaintiff (together, hereafter, "plaintiff"). Am. Compl. ¶¶ 1-3. On January 30, 2006, Colin Fitzpatrick was driving home on Route 202 near West Chester, PA when he was struck and killed by a car driven by Jean DeFague. Id. ¶ 17-21. At the time of the collision, DeFague was a student at the Exton, PA campus of UTI, located about ten miles from the accident site. Id. ¶ 9.
UTI operates training schools where students can learn, inter alia, automotive maintenance and repair. Plaintiff alleges that UTI was aware that its students were driving recklessly and "at extreme speeds" in the area around the Exton campus of UTI. Id. ¶ 11. UTI had received many complaints from area residents and allegedly "instructed the student body that this type of conduct would not [be] permitted." Id. ¶ 12. UTI also maintained "a policy requiring students to abide by all traffic laws," the violation of which could result in student expulsion. Id. at 13. Finally, plaintiff contends that "UTI was aware that Jean Paul DeFague, and possibly other students, were engaging in negligent and/or reckless behavior in violation of UTI's policies" but failed to take any measures to enforce its policies and prevent violations. Id. at 21.
Plaintiff filed a complaint in the Chester County Court of Common Pleas seeking damages from UTI for negligence, wrongful death, and survival. Invoking this court's diversity jurisdiction, UTI removed the suit to the Eastern District of Pennsylvania.
Shortly thereafter, UTI filed a motion to dismiss (docket no. 12) under Fed. R. Civ. P. 12(b)(6), contending that plaintiff could not establish that UTI owed a duty in this case. I denied the motion (docket no. 21) for reasons recounted infra. Plaintiff then amended her complaint (docket no. 33), and UTI filed the instant motion.
A. Rule 12(b)(6) motion to dismiss
Defendant moves the court, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss plaintiff's amended complaint with prejudice on grounds that it fails to state a claim upon which relief can be granted. In reviewing this motion, the court must accept as true all factual allegations in the complaint and draw all reasonable factual inferences, construing them in the light most favorable to the plaintiff. Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989). Dismissal under 12(b)(6) is unwarranted if "under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinker v. Roche Holdings, Inc., 292 F.3d 361, 374 n. 7 (3d Cir. 2002).
UTI contends that, on the current pleadings, plaintiff cannot establish that UTI owed a duty to protect Fitzpatrick or a duty to control the UTI student who caused the accident. Plaintiff responds that "UTI assumed a duty through its affirmative conduct, such as when it undertook instruction and enacted policies that were designed to prevent its students from violating traffic laws and causing harm to the public." Pl. Resp. at 4. Plaintiff further contends that "Fitzpatrick's allegations that UTI owed Colin Fitzpatrick a duty of care are founded on established Pennsylvania tort law relating to the voluntary assumption of a duty created by affirmative conduct[,]" and that "the question of duty cannot be definitively answered without discovery." Id. at 5, 7.
The Commonwealth Court of Pennsylvania has determined that "a college has a vital interest in the character of its students, and may regard off-campus behavior as a reflection of a student's character and his fitness to be a member of the student body." Kusnir v. Leach, 439 A.2d 223, 226 (Pa. Commw. Ct. 1982) (reviewing a suspension decision by a state college). The authority to sanction a student on-campus for inappropriate conduct off-campus does not presuppose, however, let alone create, a duty to supervise students in the wider world or to protect the broader citizenry from them. "College administrators no longer control the broad arena of general morals." Bradshaw v. Rawlings, 612 F.2d 135, 140 (3d Cir. 1979). "A college regulation that essentially tracks a state law and prohibits conduct that ... is already prohibited by state law does not, in our view, indicate that the college voluntarily assumed a custodial relationship with its students ...." Id. at 141. From this starting point, I will examine whether UTI could have owed a duty to Fitzpatrick under any reading of the facts pleaded here.
"The primary element in any negligence cause of action is that the defendant owed a duty of care to the plaintiff." Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1168 (Pa. 2000). Observing that "the legal concept of duty of care is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice and society[,]" id. at 1169, the Supreme ...