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R.W. v. Manzek12/9/2003
arated from Joseph while in a highly intoxicated state in cold weather was indeed foreseeable." See Kneipp, at 1208. This excerpt actually undermines appellants' argument since it is clear the court is not limiting its finding of foreseeability to the specific harm that actually befell Samantha, but rather based its finding on the general harm that was likely to befall Samantha.
Also in support of their argument that foreseeability with regard to a state-created danger theory goes to proximate cause, appellants cite the following excerpt from Morse, "The causation, if any, is too attenuated. Plaintiff can prove no set of facts which will provide the direct causal connection between Stovall's deadly attack and any of the defendant's allegedly improper acts." Morse at 909. As indicated above, the first element of a state-created danger theory is "the harm ultimately caused was foreseeable and fairly direct." Appellants failed to observe the court was not referring to the foreseeability component of this element but was referring to whether the harm caused was "fairly direct." Id. at 908-909. We are unable to find any other authority for appellants' contention, and we are not persuaded by it.
We cannot find the trial court committed an error of law or abused its discretion in applying the district court's findings as to foreseeability to the instant case. "The primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff." Althaus v. Cohen, 562 Pa. 547, 552, 756 A.2d 1166, 1168 (2000). "It 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." Huddleston v. Infertility Center of America, Inc., 700 A.2d 453, 457 (Pa.Super. 1997) (emphasis supplied). Accordingly, the trial court correctly stated that " ithout foreseeability, the Plaintiffs have not stated a valid cause of action against the Defendants." Trial Court Opinion at 4.
The trial court apparently found persuasive the district court's reasoning that the school and its superintendent could not have foreseen the harm suffered by L.W. given their mere act of allowing a fundraiser to take place at her school. Although the district court's finding was with respect to the conduct of the school and its superintendent, we cannot find the trial court erred in finding it persuasive and applying it to appellees given their respective conduct. Representatives of the school presumably solicited 84 Services for the fundraising effort, approved the fundraising materials and attended the fundraising meeting. The school must have been familiar with fundraising efforts since, as appellants allege, it was their custom and practice to conduct similar meetings at all of its elementary schools. Record No. 1, Complaint at 3-4, paragraphs 12-13. The school district, moreover, has a closer nexus to its students than a fundraising company. If, as the district court concluded, the school and its superintendent could not have foreseen the harm suffered by L.W., it is certainly reasonable to conclude the company the district solicited to give the fundraising presentation and its owner likewise could not have foreseen the harm. Moreover, it is clearly reasonable to conclude Giftco, Inc., and Cookbook, Inc., both of whom merely supplied fundraising brochures and products to 84 Services, could not have foreseen the harm.
Appellants argue that duty is predicated upon the relationship between the plaintiff and defendant and when a defendant stands in a "special relationship" with regard to the plaintiff, the defendant owes the plaintiff an affirmative duty of protection. Appellants'
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