The opinion of the court was delivered by: Jacob P. Hart United States Magistrate Judge
This action arises out of an incident where several passengers on a bus rented from Defendants JBJ Limousine, Inc. and JBJ Limousine and Bus, Inc., (collectively, "JBJ"), struck plaintiff Charles Conroy. Conroy has sued JBJ in negligence. JBJ has moved for summary judgment. JBJ's motion for summary judgment will be granted, because Conroy has not demonstrated that JBJ owed a duty to him.
I. Factual and Procedural Background
On the night of November 26, 2006, Janene Castellucci, who was celebrating her 21st birthday, and ten or fifteen of her friends and relatives, rode in a bus hired by her mother from JBJ to Old City in Philadelphia to patronize the bars there. Oral Testimony of Janene Castellucci, attached as Exhibit B to JBJ's Motion, at 9-15. This was a common way for people in their social circle to celebrate a 21st birthday: "You got a limo/bus, you ride to Philly, you drank a lot." Oral Testimony of Nick Ryan, attached as Exhibit C to JBJ's Motion, at 10.
While driving in from New Jersey, the bus passengers drank beer in red plastic cups, drawn from a quarter-keg brought on the bus at Ms. Castellucci's house. Testimony of Janene Castellucci, at 24, 34-35; Testimony of Nick Ryan, at 6, 19.
When the party reached Old City, they parted company with the bus and its driver, William Ervin. Testimony of Janene Castellucci at 17, 23-24; Testimony of William Ervin, attached as Exhibit D to JBJ's Motion, at 32-33. The bus picked the party up again around 2:00 a.m. Testimony of Nick Ryan at 18; Testimony of William Ervin at 32. Unfortunately, the bus broke down almost immediately, at Third and Market Streets. Testimony of Janene Castellucci, at 18; Testimony of Nick Ryan at 12; Testimony of William Ervin at 33-34.
As the bus sat immobilized on the side of Market Street, plaintiff Conroy, and two friends were walking up the street after visiting several bars. Deposition Testimony of Charles Conroy, attached as Exhibit E to JBJ's Motion, at 45, 54. Conroy had drunk three or four beers in about three and a half hours, but testified at his deposition that he was feeling only slight effects from this. Id. at 51, 59.
According to Conroy, he saw the bus with its door open, no driver, and no people standing outside it. Id. at 54-56. He became curious, and walked onto the bus. Id. at 56. Once on the bus, he saw approximately 12-15 individuals, and said something to the effect of: "Hey what's up? How you guys doing?" Id. at 57-58. A white male who was on the bus responded: "Get the fuck off." Id. at 61.
Conroy then turned to leave the bus. Id. Before he left, however, he turned to a table loaded with plastic cups, and "knocked over" one of the cups that had "just a little tiny bit of beer in it." Id. at 62.
Conroy stepped off of the bus, but, as he testified, six or seven men came out of the bus and surrounded him and one of his friends, Nick Loberto. Id. at 71-72. Loberto tried to reason with the men. Id. at 72. However, Conroy was struck by three or four men as he tried to run away up Market Street. Id. at 73-76. Conroy has alleged that he sustained fractures to his face, including injuries to his nose and right ocular region. Complaint, attached as Exhibit A to JBJ's Motion.
Police arrived at the scene, and examined the hands of all the male bus passengers. Testimony of Nick Ryan at 13-15. The police incident report gives the names of Nicholas Curiale and Jason Williams as two suspects. Testimony of Charles Conroy at 88. Conroy never pressed criminal charges against Curiale or Williams, or anyone else, in connection with the incident. Id. at 88-91. They are not named as defendants in this action.
Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp.. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must adduce more than a mere scintilla of evidence in its favor, and cannot simply reassert factually unsupported allegations contained in its pleadings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, supra at 325; Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party. Anderson v. Liberty Lobby, supra at 255; Tiggs Corp. v. Dow Corning Corp., 822 F.2d 358 , 361 (3d Cir. 1987). Nevertheless, Rule 56 "mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to ...