1

IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VANESSA HARPER

v.

WESTFIELD APARTMENTS, et al.

: CIVIL ACTION 

:

: NO. 04-CV-2231

:

:

MEMORANDUM AND ORDER

Kauffman, J. October 3, 2005

In this action, Plaintiff Vanessa Harper (“Plaintiff”) brings claims, both in her own right

and as Administratrix of the estate of Ethel Thorton, Deceased, alleging negligence and wrongful

death against Defendants Westfield Partners, Westfield Apartments, Arnold Galman and

Partners, and The Galman Group (“Movants”). The Complaint seeks damages, attorney fees and

costs. Currently before the Court is a 12(b)(6) Motion to Dismiss by Movants. For the reasons

stated below, the Motion to Dismiss will be denied.

I. BACKGROUND

Viewed in the light most favorable to Plaintiff, the relevant facts are as follows. 

Plaintiff’s decedent, Ethel Thorton (“Thorton”), was a resident of the Westfield Apartments

(“Apartments”), located in Philadelphia, Pennsylvania. Complaint ¶ 16. On April 7, 2002,

residents of the Apartments heard moaning, crying and sounds of someone screaming out in

distress emanating from the apartment in which Thorton resided. Id. ¶ 17. Tenants of the

Apartments made multiple unsuccessful requests to the Apartments’ management to assist or

investigate the cause of Thorton’s distress. Id. ¶ 19. The tenants then contacted the Philadelphia

Police. Id. ¶ 20. Police officers investigated the alleged noises on two occasions on April 7,

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1 The complaint also asserts claims against the City of Philadelphia and EMS

technicians for failing to adequately treat Thorton after she was discovered in her apartment. 

These claims currently are not before the Court.

2

2002; however, since no sounds were heard during their investigations, no entry was made to

Thorton’s unit. Id. ¶ 22.

On April 8, 2002, police officers were again summoned, this time with the superintendent

agreeing to open the door to Thorton’s apartment. Id. ¶¶ 23, 26. After gaining entry, the police

found Thorton lying on the floor with blood nearby. Id. ¶ 27. On April 9, 2002, Thorton died.1

Id. ¶ 33. 

 Movants bring this 12(b)(6) Motion to Dismiss arguing that they owed no duty to

Plaintiff’s decedent, and that without the existence of a duty, a claim of negligence must be

denied. 

II. LEGAL STANDARD

When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),

the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox,

Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The Court must accept as

true all well-pleaded allegations in the complaint and view them in the light most favorable to the

plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule

12(b)(6) motion will be granted only when it is certain that no relief could be granted under any

set of facts provable by plaintiff. See Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

Case 2:04-cv-02231-BWK Document 19 Filed 10/03/05 Page 2 of 6
2

In this diversity case, the Court must “apply the substantive law of the state whose

laws govern the action.” Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir. 1990)

(citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).

3 This section of the Restatement has been adopted by Pennsylvania courts. Hamil

v. Bashline, 481 Pa. 256, 268-69, 392 A.2d 1280, 1286 (1978). 

3

III. DISCUSSION

To prevail on a cause of action in negligence under Pennsylvania law,2 a plaintiff must

establish: (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. South Hills Health Sys., 501 Pa. 634, 642 n.5, 462 A.2d

680, 684 n.5 (1983).

The issue raised in this motion is whether Movants owed a duty to Plaintiff. In the

Complaint, Plaintiff alleges that Movants undertook a duty to Thorton when they collected

emergency contact information from her to utilize in an emergency. Complaint ¶ 44. The

Complaint further alleges that this duty was breached when Movants failed to notify anyone after

they were put on notice of Thorton’s distress and that Movants’ negligence was a substantial

factor in the events leading to Thorton’s death. Id. ¶ 46, 47. Plaintiff bases her argument on

section 323 of the Restatement (Second) of Torts, which provides:

One who undertakes, gratuitously or for consideration, to render services to another

which he should recognize as necessary for the protection of the other’s person or

things, is subject to liability to the other for physical harm resulting from his failure

to exercise reasonable care to perform his undertaking, if (a) his failure to exercise

such care increases the risk of harm, or (b) the harm is suffered because of the other’s

reliance on the undertaking.3

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4

The question of duty is one of law and thus for the court. Exxon Corp. v. James J.

Andersen Construction Co., Inc., 126 F.3d 221, 225 n.2 (3d Cir. 1997) (citing Howell v.

Clyde, 533 Pa. 151, 154 n.1, 620 A.2d 1107, 1108 n. 1 (1993)). At this stage of the

proceedings, it is impossible to discern the facts surrounding Movants’ solicitation of

emergency contact information and for what purpose such information was collected. In

addition, the timing of when Movants were put on notice of Thorton’s calls of distress is

unclear. It is possible, however, from the face the Complaint, to infer a set of facts that

could give rise to a duty on the part of Movants. Accordingly, the Motion to Dismiss for

failure to state a claim will be denied. 

Under the federal rules, a “short and plain” statement of a claim for relief is all

that is required. Fed R. Civ. P. 8(a)(2); O’Boyle v. Jiffy Lube Int’l, Inc., 866 F.2d 88, 93

(3d Cir. 1989); see also Leone v. Aetna Casualty & Surety Co., 599 F.2d 566, 567 (3d

Cir. 1979) (“It is the settled rule that ‘a complaint should not be dismissed for failure to

state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.’”) (quoting Conley v. Gibson, 355

U.S. 41, 45-45 (1957)); cf. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (“A

complaint that complies with the federal rules of civil procedure cannot be dismissed on

the ground that it . . . fails to allege facts. The federal rules require . . . only that the

complaint state a claim, not that it plead the facts that if true would establish . . . that the

claim was valid.”).

IV. Conclusion

For the foregoing reasons, the Court will deny Movants’ Motion to Dismiss

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pursuant to Fed. R. Civ. P. 12(b)(6). An appropriate Order follows.

 

 

 

 

Case 2:04-cv-02231-BWK Document 19 Filed 10/03/05 Page 5 of 6
6

 IN THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VANESSA HARPER : CIVIL ACTION

:

v. : NO. 04-CV-2231

:

WESTFIELD APARTMENTS. et al. :

ORDER

AND NOW, this 3rd day of October, 2005, upon consideration of Movants'

Motion to Dismiss (docket no. 8), and the response thereto, it is ORDERED that the

Motion is DENIED for the reasons stated in the attached Memorandum.

BY THE COURT:

 /s/ Bruce W. Kauffman 

 BRUCE W. KAUFFMAN, J.

 

 

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