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Andrew Sabric and Genevieve Sabric, Co-Executors of the v. Lockheed Martin and U.S. Security Associates

May 30, 2012

ANDREW SABRIC AND GENEVIEVE SABRIC, CO-EXECUTORS OF THE ESTATE OF DEBORAH BACHAK PLAINTIFFS,
v.
LOCKHEED MARTIN AND U.S. SECURITY ASSOCIATES, INC. DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court are summary judgment motions filed by Defendant Lockheed Martin ("Lockheed") (Doc. 37) and Defendant U.S. Security Associates, Inc. ("U.S. Security") (Doc. 46.) Plaintiffs, the Co-Executors of the Estate of Deborah Bachak, have brought this action against Defendants for the tragic death of Ms. Bachak. On December 16, 2008, Bachak, a Lockheed employee, was shot and killed while at Lockheed's facility in Archibald, Pennsylvania by George Zadolnny ("Zadolnny"), a guard employed by U.S. Security, which was hired to provide security services to Lockheed's Archibald facility. Zadolnny and Bachak were not strangers, however. Indeed, they were former lovers that had been engaged until Bachak ended the relationship some months before the shooting. Now, Defendants seek summary judgment on the basis that they did not owe Bachak a legal duty under the facts of this case. The Court agrees. Because neither Defendant owed Bachak a legal duty to protect her from Zadolnny or prevent Zadolnny's criminal actions that resulted in her death, Defendants' motions for summary judgment will be granted.

I. Factual Background and Procedural History

This case involves the factual events leading up to the murder of Deborah Bachak ("Decedent") by Zadolnny on December 16, 2008 at the premises of Lockheed's facility in Archibald, Pennsylvania. (U.S. Security's Statement of Material Facts, Doc. 48, ¶ 1) (hereafter "US SMF.") Decedent was employed by Lockheed and Zadolnny was an armed security guard employed by U.S. Security. (Id. at ¶ 2.) Although Decedent was not romantically involved with Zadolnny on December 16, 2008, the two had previously dated, become engaged, and even lived together prior to Decedent ending the engagement some months before her death. (Lockheed Statement of Material Facts, Doc. 39, ¶ 5) (hereafter "Lockheed SMF.") Zadolnny also assisted Decedent in a personal business venture she was pursuing involving home health care. (Id. at ¶ 6.)

On the morning of December 16, 2008, at approximately 9:00 A.M., Decedent called the Guard House to request assistance unlocking a shred bin outside of the department in which Decedent worked. (Shooting Incident Report, 6.) Zadolnny, one of the few employees with a key to unlock the shred bin, responded to the request, unlocked the bin, and then returned to the Guard House. (Id.) Shortly thereafter, Zadolnny requested permission from his supervisor to use the restroom. (Id.)

Zadolnny proceeded to return to the department in which Decedent work, knocked on the glass window, and requested her to meet with him in the mailroom. (Id.) Decedent obliged to Zadolnny's request. (Id.) Moments later, Zadolnny shot Decedent multiple times before he turned the gun on himself and committed suicide. (Lockheed SMF, ¶ 16.)

Zadolnny, as a security guard for U.S. Security, was permitted access to the Archibald facility pursuant to a security contract between the Defendants. (Id. at ¶ 2.) As of December 16, 2008, Lockheed had no rules precluding romantic relationships among employees or employees and contractors, but U.S. Security had a policy by which guards were prohibited from engaging in personal relationships with employees of the facility where they are stationed. (Id. at ¶¶ 4, 44.)

Before the day of the shooting, Decedent's mother, father, son, or daughter never observed Zadolnny be physically abusive towards Decedent. (Id. at ¶¶ 18-29.) Nor did Decedent ever inform her family that Zadolnny physically threatened her. (Id.)

On the other hand, while some employees had heard that Zadolnny treated Decedent poorly, (Id), other Lockheed employees knew that he was obsessed with Decedent and had seen him act aggressively towards her. (Shooting Incident Report, 77.) Nevertheless, Zadolnny's conduct was never reported to Lockheed's Human Resources Department by Decedent or her co-workers, despite Lockheed's policy requiring employees to report harassment or improper behavior. (Lockheed SMF, at ¶ 37.) While some employees believed Zadolnny's actions did not rise to the level to warrant a report being filed with the Human Resources Department (Id), others were unaware that reporting of harassment was required. (Shooting Incident Report.)

As a result of the shooting, Plaintiffs commenced this action on or about October 14, 2009 in the Court of Common Pleas of Lackwanna County, Pennsylvania. (Doc. 1, Ex. A.) Plaintiffs asserted claims for negligence, vicarious liability, wrongful death, and a survival action against Lockheed. (Id.) As against U.S. Security, Plaintiffs alleged claims for negligence, assault and battery, vicarious liability, wrongful death, and a survival action. (Id.)

On November 13, 2009, Lockheed removed the action from the Lackawanna County Court of Common Pleas to this Court. (Doc. 1.) Shortly thereafter, Lockheed and U.S. Security moved to dismiss this action for various reasons. (Docs. 5; 11.) The motions were largely denied, and Defendants were directed to respond to Plaintiffs' Complaint. (Doc. 15.) Lockheed subsequently asserted a cross-claim against U.S. Security for indemnification and reimbursement pursuant to the terms of the parties' security services contract.

At the close of discovery, Lockheed filed a motion for summary judgment against Plaintiffs on all claims asserting: (1) Plaintiffs failed to set forth sufficient evidence to establish a claim of negligence; (2) Plaintiffs failed to set forth evidence to establish a claim of vicarious liability; (3) Plaintiffs' recoverable remedies are limited by the Pennsylvania Workers' Compensation Act; and (4) Plaintiffs failed to set forth sufficient evidence to warrant an award of punitive damages. (Doc. 37.) Lockheed also filed for summary judgment against U.S. Security on its cross-claim for indemnification. (Id.) U.S. Security similarly filed for summary judgment against Plaintiffs, asserting that Plaintiffs failed to set forth sufficient evidence to establish a claim of negligence. (Doc. 46.) Oppositions were filed to each motion.*fn1 Now, as the motions have been fully briefed, they are ripe for disposition.

II. Legal Standard

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) (2). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2). Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See 2D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2727 (2d ed.1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the court that "the nonmoving party has failed to make a sufficient showing on an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

"When considering whether there exist genuine issues of material fact, the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.2007). Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256--57. The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). "To prevail on a motion for summary judgment, the non-moving party must show specific facts such that a reasonable jury could find in that party's favor, thereby establishing a genuine issue of fact for trial." Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265, 270 (3d Cir.2007) (citing Fed.R.Civ.P. 56(e)). "While the evidence that the non-moving party presents may be either direct or circumstantial, and need not be as great as a preponderance, the evidence must be more than a scintilla." Id. (quoting Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir.2005)). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

III. Discussion

A. Negligence

As noted, Plaintiffs claim that Lockheed is liable in this case (1) for its direct negligence in failing to protect Decedent and (2) for vicarious liability based on U.S. Security's alleged negligence. (Doc. 1, Ex. A.) Plaintiffs also seek redress from U.S. Security based on its alleged negligence in failing to control the actions of Zadolnny. (Id.) Specifically, Plaintiffs argue that Lockheed and U.S. Security breached their duties owed to Decedent to protect her and/or prevent Zadolnny's criminal conduct, and that these breaches were a factual or substantial cause of her death.

To establish a claim for negligence under Pennsylvania law, Plaintiffs must prove the following elements:

(1) A duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct;

(2) a failure to conform to the standard required;

(3) a causal connection between the conduct and the resulting injury; and

(4) actual loss or damage resulting to the interests of another.

Morena v. S. Hills Health Sys., 501 Pa. 634, 642 n.5, 462 A.2d 680, 684 n.5 (1983); see also Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998). Here, the resolution of the legal duty element of Plaintiffs' negligence claim is dispositive of this case.

1. Legal Duty

To prevail on a negligence claim, the plaintiff must establish that the defendant owed a legal duty to the plaintiff. Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 40 (Pa. Super. 2000) (citing Martin, 711 A.2d at 458). Whether a duty exists is a "question of law for the court to decide." Matharu v. Muir, 29 A.3d 375, 384 (Pa. Super. 2011) (quoting R.W. v. Manzek, 585 Pa. 335, 888 A.2d 740, 746 (2005)); see also Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000) ("whether a duty exists in a particular case involves the 'weighing of several discrete factors' which include: '(1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution'"). Under Pennsylvania law, there is generally "no duty to control the conduct of a third party to protect another from harm." Brezenski, 755 A.2d at 40. Yet, despite this statement of the law, when the defendant stands in a special relationship with the person whose conduct needs controlled or with the potential victim of the third-party, the law provides the intended victim with a right of protection. Id. (citing Emerich v. Philadelphia Ctr. for Human Dev., 554 Pa. 209, 720 A. 2d 1032 (1998)). These special relationships which impose a duty on a defendant to protect an individual from a third party include situations where a pre-existing duty exists, see, e.g., Midgette v. Wal-Mart Stores, Inc., 317 F. Supp. 2d 550, 558- 60 (E.D. Pa. 2004), where a master is tasked with the control of his servant, see, e.g., Brezenski, 755 A.2d at 41, or "where a party assumes a duty, whether gratuitously or for consideration, and so negligently performs that duty that another suffers damage." Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 746 (1984) (citing Pascarella v. Kelley, 378 Pa. 18, 105 A.2d 70 (1954); Rehder v. Miller, 35 Pa. Super. 344. (1908)).

a. No Pre-Existing Duty Existed Pursuant to Restatement (Second) § 314A Here, the relationship of the parties did not impose a pre-existing duty on Defendants to protect Decedent. See Restatement (Second) of Torts, § 314A. Section 314A provides that:

(1) A common carrier is under a duty to its passengers to take reasonable action

(a) to protect them against unreasonable risk of physical harm, and

(b) to give them first aid after it knows or has reason to know that they are

ill or injured, and to care for them until they can be cared for by others.

(2) An innkeeper is under a similar duty to his guests.

(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

Id. Pennsylvania courts have adopted the main text of Section 314A. See Midgette, 317 F. Supp. 2d at 558. Based on the main text of Section 314A, Decedent and Defendants were not in a special relationship. Specifically, Defendants were not innkeepers, common carriers, or in custody of Decedent, and, as the Archibald facility was a heavily monitored facility that permitted access only to those with clearance, Lockheed, as a possessor of land, was not under a pre-existing duty to protect Decedent pursuant to Section 314A(3).

Additionally, the commentary to Section 314A provides that "an additional duty giving rise to a similar duty is that of an employer to his employee (See § 314B)." Restatement (Second) of Torts, § 314A, cmt. a. However, as noted by the Midgette court, no Pennsylvania cases have adopted this comment or applied a special relationship between an employer and employee. See Midgette, 317 F. Supp. 2d at 558. Similarly, Midgette recognizes that Pennsylvania has "likely not adopted Section 314B" because only one Pennsylvania case mentioned Section 314B and did not adopt or recognize an adoption of that Section. Id. at 559 n.4. Since Midgette was decided in 2004, no new Pennsylvania cases appear to have cited, let ...


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