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R.W. v. Manzek12/9/2003
overy is possible.
Where affirmance of the trial court's order sustaining preliminary objections would result in the dismissal of an action, we may do so only when the case is clear and free from doubt. To be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Any doubt should be resolved by a refusal to sustain the objections. We review the trial court's decision for an abuse of discretion or an error of law.
DeMary v. Latrobe Printing & Publ'g Co., 762 A.2d 758, 761 (Pa.Super. 2000), appeal denied, 567 Pa. 725, 786 A.2d 988 (2001), (citations omitted).
We first address the contention raised by appellees Manzek and 84 Services that appellants are collaterally estopped from re-litigating the issue of foreseeability since they contend it was previously litigated in the district court and Third Circuit.
Collateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment.
Green v. Green, 783 A.2d 788, 791 (Pa.Super. 2001), appeal denied, 569 Pa. 707, 805 A.2d 524 (2002).
We cannot find the first, second and fourth elements of collateral estoppel are present here. In a negligence case, the harm suffered by the plaintiff must be foreseeable to a defendant in light of that defendant's conduct. See, Huddleston v. Infertility Center of America, Inc., 700 A.2d 453, 457 (Pa.Super. 1997) (stating " t has long been hornbook law that a duty arises only when one engages in conduct which foreseeably creates an unreasonable risk of harm to others"). It logically follows that harm foreseeable to one defendant in light of its conduct, may not be foreseeable to another in light of its distinct conduct. The district court decided, and the Third Circuit affirmed, the harm suffered by L.W. was not foreseeable to the school district and its superintendent. The district court, however, declined to exercise pendant jurisdiction over appellants' state law claims against appellees. Accordingly, in the prior proceeding, appellants did not have a full and fair opportunity to litigate the issue of whether the harm suffered by L.W. was foreseeable to appellees in light of the respective conduct of each.
We now turn to appellants' argument that the trial court erred in applying the district court's reasoning to the instant case. The district court recognized a state generally has no affirmative obligation to protect its citizens from the violent acts of private individuals. See, Record #60, Opinion and Order of Court, Attached Memorandum at 10. An exception is the "state-created danger" theory, pursuant to which a state actor can be held liable under 42 U.S.C. ยง 1983 for a constitutional violation. Id., at 10-12. The elements of this theory of liability are 1) the harm ultimately caused was foreseeable and fairly direct; 2) the state actor acted in willful disregard for the safety of plaintiff; 3) there existed some relationship between the state and the plaintiff; and 4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur. Id., at 12-13.
The district court declined to impose liability upon the school
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