The opinion of the court was delivered by: Pollak, J.
In this diversity suit, defendant Universal Technical Institute ("UTI"),which runs technical training schools throughout the country, has filed a motion to dismiss (docket no. 46) the second amended complaint (docket no. 43) of plaintiff Gale Fitzpatrick, the mother of the decedent Colin Fitzpatrick, and the Estate of Colin Fitzpatrick. Plaintiffs have responded (docket no. 47). UTI has filed a reply to plaintiffs' response (docket no. 50).
I. Background and Procedural History
The relevant facts of this case are as alleged in the second amended complaint. Plaintiff Gale Fitzpatrick is the mother of Colin Fitzpatrick ("Fitzpatrick"), and serves as administratrix of his estate, which is also a plaintiff. Second Am. Compl. ¶¶ 2-3. On January 30, 2006 Fitzpatrick was driving home on Route 202 when Jean DeFague's ("DeFague") car struck his car and killed him. Id. at ¶¶ 10-13. At the time of the accident DeFague was a student at UTI's Exton, Pennsylvania campus. Mot. Dismiss Pl.'s Second Am. Compl. ¶ 8. The accident occurred approximately 12.7 miles from the campus. Id. DeFague was not driving on school business or in a UTI-provided vehicle. Id. at ¶¶ 9-10.
UTI training schools teach students automotive maintenance and repair. Plaintiffs allege that UTI students, including DeFague, drove their cars recklessly at high speeds in the surrounding areas. Second Am. Compl. ¶ 14. Plaintiffs further allege that UTI was aware of its students' conduct because it had received complaints from a local business and the Chief of Police of Upper Uwchlan Township. Id. at ¶¶ 14-16. Furthermore, newspapers reported students' reckless conduct. Id. at ¶ 18. As a result of its students reckless driving, UTI took steps to control the students' behavior. Id. at ¶ 19. The school sought community input and, in a memorandum, advised the student body that a police citation of speeding or reckless driving would result in immediate suspension or termination. Id. at ¶ 21. It also advised that identification of reckless driving by a staff or community member would lead to disciplinary action, including possible termination from the school. Id. UTI also: (1) added a security guard to identify reckless drivers; (2) required all students to sign a waiver stating that police would inform UTI of all student run-ins; and (3) updated its Student Success Guide, a school handbook for incoming students providing useful information and school policies, to include disciplinary actions for reckless driving. Id. at ¶¶ 22, 25-27.
DeFague had a history of driving violations, including two speeding citations in 2005. Id. at ¶¶ 35-36. Plaintiffs contend that, in spite of its policies to curb reckless driving through disciplinary action, UTI was aware of DeFague's driving record and failed to punish or expel him. Id. at ¶ 38. Plaintiffs further allege that UTI assumed a duty of care to the community because of its disciplinary policies and public statements surrounding these policies. Id. at ¶ 46.
Plaintiffs 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 this court (docket no. 1). After removal, UTI filed a motion to dismiss (docket no. 12) asserting that plaintiffs could not establish that UTI owed Fitzpatrick a duty of care. In a memorandum of August 18, 2008, I denied the motion (docket no. 21) because the initial complaint alleged that UTI was aware that its students, including DeFague, used its classrooms and the material it taught to modify their cars so that they could drive at a faster speed. Plaintiffs filed an amended complaint (docket no. 33) and UTI filed a motion to dismiss (docket no. 34) which I granted. Id. at *13. The dismissal was without prejudice to plaintiffs' ability to further amend the complaint. Id. Plaintiffs then filed a second amended complaint (docket no. 43) and UTI filed the instant motion.
A. Rule 12 (b)(6) Motion to Dismiss Standard
Defendant moves the court, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss plaintiffs' second amended complaint for failure to state a claim upon which relief can be granted. To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim a claim to relief that is plausible on its face." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (internal quotations omitted). In reviewing this motion to dismiss, the court must accept as true all factual allegations in the complaint and draw from it all reasonable inferences, construed in the light most favorable to the plaintiffs. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).
UTI contends that, based upon the current pleadings, plaintiffs cannot establish that UTI was under any obligation to control the activities of its students or that it assumed a duty of care to the community, or to Fitzpatrick, because of its public disciplinary policies. Plaintiffs respond that, "by its affirmative actions, UTI assumed a duty to protect the public, and the public relied to its detriment. . . . [U]TI failed to use reasonable care in administering the duty it had affirmatively undertaken, thereby causing its students' dangerous driving to persist and the death of Colin Fitzpatrick." Pl.s' Resp. at 7. UTI responds that, "[p]laintiff[s'] argument appears to be merely an attempt to distract the Court from the principal issue presented by UTI's motion--does a school have custody or control over an adult student driving more than twelve (12) miles from campus and unrelated to any school function so as to create a duty of care?" Defendant's Resp. at 2-3. UTI continues, "Plaintiff[s] argues instead that UTI 'assumed a duty of care.' . . .
[h]owever, this Court previously addressed and rejected Plaintiff's 'assumption of care' argument." Id. at 3.
Under Pennsylvania law, the primary element in a negligence cause of action is whether the defendant owed the plaintiffs a duty of care. Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1168 (Pa. 2000) (citation omitted). A duty of care can be established in a liability suit, by, inter alia: (1) a special relationship between the parties, or (2) an assumption of a duty to care. See Bradshaw v. Rawlings, 612 F.2d 135, 140-41 (3d Cir. 1979) (analyzing a college's liability in an off-campus car crash between two students, one who was underage and intoxicated against school policies, through a special relationship and an assumption of a duty to care perspective).
B. Enrollment in an Institution of Higher Education does not Create a Special Relationship ...