J.A31043/13

                               2014 PA Super 188


ALBERT CHARLIE D/B/A                        :     IN THE SUPERIOR COURT OF
RESTAURANT & PUB AND ZACHARY                :          PENNSYLVANIA
NEIDERT,                                    :
                                            :
                    v.                      :
                                            :
ERIE INSURANCE EXCHANGE A/S/O               :
JEFFREY DORN AND ROCHELLE DORN              :
D/B/A EGYPT LAUNDROMAT,                     :
                                            :
                          Appellant         :     No. 1807 EDA 2013


                  Appeal from the Order Entered May 30, 2013
                 In the Court of Common Pleas of Lehigh County
                        Civil Division No(s).: 2011-C-3496

BEFORE: BENDER, P.J., LAZARUS, and FITZGERALD,* JJ.

OPINION BY FITZGERALD, J.:                          FILED AUGUST 29, 2014

        Appellant, Erie Insurance Exchange, as subrogee of Jeffrey Dorn and

Rochelle Dorn, doing business as Egypt Laundromat, appeals from the order

entered in the Lehigh County Court of Common Pleas granting summary

judgment in favor of Appellees, Albert Charlie, doing busin

Restaurant & Pub, and Zachary Neidert. Appellant contends the trial court

should have held that Appellees had an affirmative duty to prevent greasy



hold that Appellant has not met its burden for imposing a duty upon all



*
    Former Justice specially assigned to the Superior Court.
J. A31043/13

laundromat customers to prevent laundered rags from spontaneously

combusting. Accordingly, we affirm.

     We state the facts as set forth by the trial court:

           This case is a property damage subrogation action
        arising out of a fire that occurred on April 4, 2011, at the
        Egypt Laundromat located at 4755 Main Street, Egypt,

        business located at 4505 Main Street, Egypt, Pennsylvania.
        During all relevant times, Zachery Neidert (Neidert) was
        working in the course and scope of his employment as a



        chicken wings, cheesesteaks, hamburgers, chicken
        sandwiches, salads, clams, some entrees, french fries,
        chicken fingers and jalapeno poppers.    The food is

        burners, a flat top grill and a deep fryer filled with oil used
        to cook the french fries, chicken fingers and jalapeno
        poppers.


        down, clean and absorb excess food, debris, residue, dirt
        and oils from areas including the bar top, stools, tables,

        employees would use their common sense to determine
        when a bar rag was ready to be cleaned, and the rag
        would be put into some type of laundry bag. Every one to
        two weeks, the dirty bar rags were taken to Egypt

        employee of

        2011. Neidert had noticed on prior occasions at Egypt
        Laundromat that the rags did not really get cleaned after
        being washed, that the washing machine did not get all the
        stuff out of the rags. Neidert began using three washers
        instead of two in an attempt to have the washing machines
        clean the rags better.

           On April 4, 2011, at 6:51 p.m., Neidert arrived at Egypt
                                                     gs into three


                                     -2-
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           washing machines and left. At approximately 9:49 p.m.,
           Neidert returned to Egypt Laundromat and removed the
           bar rags from the three washing machines.           Neidert
           testified that the bar rags were wet and kind of balled
           together; he did not pay attention to whether or not they
           looked clean. Neidert put all three loads of bar rags into a
           single dryer, inserted nine quarters for a 63 minute drying
           cycle, started the dryer, and then left the Laundromat.
           The dryer stopped spinning at 10:50 p.m. At 12:25 a.m.,
           the bar rags began to smolder.         At 12:45 a.m., an
           unidentified laundromat patron opened the door to the
           subject dryer. Neidert returned to the laundromat at
           12:49 a.m., observed flames inside the dryer and
           unsuccessfully attempted to extinguish the fire.          At
           approximately 12:58 a.m., the Whitehall Volunteer Fire
           Department personnel arrived at the laundromat and
           extinguished the fire.

Trial Ct. Op., 5/20/13, at 2-3.

      We also reproduce the following exchange from the deposition of Mr.

Neidert:


           phenomenon where laundry can catch on fire if there is too
           much grease or sediment within the laundry itself?

           A. Like spontaneous combustion?

           Q. Yes.


           heard of spontaneous combustion where something can
           just light on fire.

                                   *    *    *

           Q. Have you ever heard of that phenomenon where if there
           is vegetable oil or something left within the linen, that it
           can cause fire?




                                       -3-
J. A31043/13

                                 asy rags causing fires in, like,

        thought that was motor oil or gasoline and stuff like that?



party disputes that the rags at issue were used to clean up nicotine, spilled

drinks, and incidental grease from spilled food. See                      -8;

                    -4. We acknowledge, however, that the parties dispute

                                                or nicotine and whether one

of the parties used laundry detergent or a degreasing solution in the

washers.1

      On November 3, 2011, Appellant filed a complaint raising two counts

of negligence against Appellees. Appellees moved for summary judgment on

the basis that because spontaneous combustion      by its very nature   is not

typically viewed as a reasonably foreseeable risk, the law did not impose an

affirmative duty to prevent spontaneous combustion. Accordingly, Appellees

asserted they could not be held negligent as a matter of law.




1
    We note
                                                                See, e.g.,
                      -
however, state that the rags were used to wipe up grease from spilled food,
see, e.g., id.

view the record in the light most favorable to it. See Gutteridge v. A.P.
Green Servs., Inc., 804 A.2d 643, 651 (Pa. Super. 2002) (citations
omitted).




                                    -4-
J. A31043/13




judgment.2 The trial court applied the five factors set forth in Althaus ex

rel. Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000), for

establishing the existence of a duty. The court reasoned that Appellees were

business invitees, laundering bar rags had social value, spontaneous

combustion of washed rags left in a dryer was not a foreseeable risk, and

                                                     set forth below, were

unfeasible. Trial Ct. Op. at 6-10. Appellant timely appealed and the court

did not order Appellant to comply with Pa.R.A.P. 1925(b).

     Appellant raises the following questions:

        Did the trial court commit reversible error when it decided
        as a matter of law that [Appellees], a bar owner and its
        employee, did not owe a duty of ordinary care to Egypt

        causing a fire in the laundromat?

        Did the trial court commit reversible error in the manner in
        which it analyzed the factors in Althaus [ex rel. Althaus]
        v. Cohen, 756 A.2d 11[6]6, 11[69] (Pa. 2000) by
        concluding, among other things, that the ability to clean
        bar rags in a public laundromat without regard to the risk
        of spontaneous combustion is of extreme social importance
        and that the minimal burden of imposing a duty on a
        commercial establishment to educate itself regarding the
        risks of laundering its own bar rags outweighs the
        important public interest in preventing fires?

        Did the trial court commit reversible error when it weighed
        conflicting evidence and made credibility determinations in

2
 The order, which was dated and mailed on May 20, 2013, was docketed on
May 21, 2013.




                                   -5-
J. A31043/13

           favor of . . . Appellees, the moving party, when deciding




        We summarize Appellan

as they are interrelated.          Appellant states the trial court erred by not

recognizing that the relationship between Egypt Laundromat and Appellees

was a bailment for mutual benefit.3          Appellant opines that Appellees, as
                                                                       4
                                                                           Id. at 19.



licensee/licensor, citing Garcia v. Halsett, 82 Cal. Rptr. 420 (Cal. Ct. App.

1970).     By extension, Appellant suggests, the court misapplied the five-

factor Althaus test for identifying the existence of a duty. See

Brief at 21-

parties [by the trial court] would have compelled finding the existence of a

                                               Althaus test, the trial court gave



spontaneous combustion is a reasonably foreseeable risk and imposing a

legal

3

relationship must be legally defined, e.g., bailment or licensee.  That
supposition would be incorrect. See Lindstrom v. City of Corry, 563 Pa.

to driver fleeing said officer).
4
    As explained below, Appellant misapprehends that it is a bailor.




                                         -6-
J. A31043/13

spontaneous combustion when laundering rags would result in minimal

public policy consequences. Id. at 33. We hold Appellant is due no relief.

     The standard and scope of review for summary judgment is well-

established:

           Pennsylvania law provides that summary judgment may
        be granted only in those cases in which the record clearly
        shows that no genuine issues of material fact exist and
        that the moving party is entitled to judgment as a matter
        of law. The moving party has the burden of proving that
        no genuine issues of material fact exist. In determining
        whether to grant summary judgment, the trial court must
        view the record in the light most favorable to the non-
        moving party and must resolve all doubts as to the
        existence of a genuine issue of material fact against the
        moving party. Thus, summary judgment is proper only
        when the uncontr[o]verted allegations in the pleadings,
        depositions, answers to interrogatories, admissions of
        record, and submitted affidavits demonstrate that no
        genuine issue of material fact exists, and that the moving
        party is entitled to judgment as a matter of law. In sum,
        only when the facts are so clear that reasonable minds
        cannot differ, may a trial court properly enter summary
        judgment. . . . With regard to questions of law, an

        Court will reverse a grant of summary judgment only if the
        trial court has committed an error of law or abused its
        discretion.

Gutteridge

whether to impose affirmative common-law duties as a predicate to civil

                                                                 Seebold v.

Prison Health Servs., Inc., 618 Pa. 632, 650, 57 A.3d 1232, 1243 (2012).



                  Brusis v. Henkels, 376 Pa. 226, 230, 102 A.2d 146, 148



                                    -7-
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wrongdoer could have anticipated and foreseen the likelihood of harm to the

                                             Id.

axiomatic that the elements of a negligence-based cause of action are a

duty, a breach of that duty, a causal relationship between the breach and

                                       Minnich v. Yost, 817 A.2d 538, 541

(Pa. Super. 2003) (quoting                                , 755 A.2d 20, 23-

24 (Pa. Super. 2000)).

             While the existence of a duty is a question of law,
         whether there has been a neglect of such duty is generally
         for the jury. However, the issue of whether an act or a
         failure to act constitutes negligence may be removed from
         consideration by a jury and decided as a matter of law
         when the case is free from doubt and there is no possibility
         that a reasonable jury could find negligence.

Emerich v. Phila. Ctr. for Human Dev., Inc., 554 Pa. 209, 233, 720 A.2d



person failed to act                 T.A. v. Allen, 447 Pa. Super. 302, 307,

669 A.2d 360, 362 (1995) (en banc) (quoting Wenrick v. Schloemann-

Siemag Aktiengesellschaft, 523 Pa. 1, 8, 564 A.2d 1244, 1248 (1989)).

                       only when one engages in conduct which foreseeably

creates an unreasonable                              Campo, 755 A.2d at 24

(emphases added).        In Althaus, our Supreme Court set forth a non-

exclusive five-factor test for determining the existence of a duty, i.e.,




                                    -8-
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whether, as a matter of law, a defendant is under any obligation for the

benefit of a plaintiff:

                In determining the existence of a duty of care, it
                must be remembered that the concept of duty

                those considerations of policy which led the law
                to say that the particular plaintiff is entitled to

                give it any greater mystique would unduly
                hamper our system of jurisprudence in adjusting
                to the changing times. The late Dean Prosser
                expressed this view as follows:

                These are shifting sands, and no fit foundation.
                There is a duty if the court says there is a duty;
                the law, like the Constitution, is what we make
                it. Duty is only a word with which we state our
                conclusion that there is or is not to be liability; it
                necessarily begs the essential question. When
                we find a duty, breach and damage, everything
                has been said.       The word serves a useful
                purpose in directing attention to the obligation
                to be imposed upon the defendant, rather than
                the causal sequence of events; beyond that it
                serves none. In the decision whether or not
                there is a duty, many factors interplay: The
                hand of history, our ideas of morals and justice,
                the convenience of administration of the rule,
                and our social ideas as to where the loss should
                fall. In the end the court will decide whether
                there is a duty on the basis of the mores of the

                that we endeavor to make a rule in each case
                that will be practical and in keeping with the
                general understanding of m

             Thus, the legal concept of duty of care is necessarily
          rooted in often amorphous public policy considerations,
          which may include our perception of history, morals,
          justice and society. The determination of whether a duty
          exists in a particular case involves the weighing of several
          discrete factors which include: (1) the relationship


                                        -9-
J. A31043/13



           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. . . . See also
           Bird v. W.C.W.
           determining whether to impose a duty, this Court must
           consider the risk, foreseeability, and likelihood of injury

           the magnitude of the burden of guarding against the injury
           and the consequences of placing that burden on the


Althaus, 562 Pa. at 552-53, 756 A.2d at 1168-69 (some citations omitted).

Courts are not required to weigh each factor equally. Id. at 553, 756 A.2d

at 1169.




t

                                Seebold, 618 Pa. at 653 & n.19, 57 A.3d at

1245 & n.19 (citation omitted).      The Seebold Court emphasized that in

ascertaining the existence of a duty,



                            5
judicial decision-              Id. at 653, 57 A.3d at 1245.      In sum, the


5
    Moreover, the Seebold Court observed,

           the adjudicatory process premised on adversarial
           presentations[,] which by their nature may be skewed in
           favor of the individual interests at stake does not
           consistently translate well into the field of broader
           policymaking. Along these lines, we have often recognized



                                      - 10 -
J. A31043/13

Seebold Court reiterated that because our Legislature is in the best position

to establish public policy and impose affirmative duties,

         the default position [of our courts is] that, unless the
         justifications for and consequences of judicial policymaking
         are reasonably clear with the balance of factors favorably
         predominating, we will not impose new affirmative duties.
         See [Cafazzo v. Cent. Med. Health Servs., Inc., 542

         change in the law is made, a court, if it is to act
         responsibly[,] must be able to [fore]see with reasonable
         clarity the results of its decision and to say with reasonable
         certainty that the change will serve the best interests of
                               Hoven v. Kelble, 79 Wis. 2d 444,
         470, 256 N.W.2d 379, 391 (1977)6]).

Id. at 653-54, 57 A.3d at 1245 (emphasis added).7

      As set forth above, the Althaus Court identified five non-exclusive

factors8 courts should consider before imposing a legal duty upon the public.

See Althaus, 562 Pa. at 552-53, 756 A.2d at 1168-69. With respect to the




         the superior tools and resources available to the
         Legislature in making social policy judgments, including
         comprehensive investigations and policy hearings.

Seebold, 618 Pa. at 653, 57 A.3d at 1245 (citations and footnote omitted).
6
   Because the Cafazzo Court slightly misquoted the Hoven Court, we
altered the quotation to reflect the original language.
7
  The Seebold Court ultimately refused to impose a legal duty upon a
physician treating prison inmates to notify correctional officers that a
particular inmate has a communicable disease. Seebold, 618 Pa. at 661, 57
A.3d at 1250.
8
  Neither party has suggested the trial court should have considered an
additional factor.




                                     - 11 -
J. A31043/13

Althaus factors regarding th

harm, this Court emphasized the limited scope of both:

              Duty, in any given situation, is predicated upon the
           relationship existing between the parties at the relevant
           time. Where the parties are strangers to each other, such
           a relationship may be inferred from the general duty
           imposed on all persons not to place others at risk of harm
           through their actions.



Sullivan, 369 Pa. Super. 596, 601, 535 A.2d 1095, 1098 (1987)

[hereinafter Sullivan] (citation omitted).       The relationship between the

parties,   therefore, does not have      to    be   a specific, legally   defined

relationship, e.g., bailor-bailee, licensor-licensee, or business invitee.   See

id.

      Regardless, because the instant Appellant contends the trial court, as



invitee instead of bailor-bailee or licensor-licensee, we summarize the

                                              tion of whether an individual is an

                                                      -

evidence is insufficient to support an issue, however, it may be appropriate

                                                           Palange v. City of

Phila., Law Dept., 433 Pa. Super. 373, 377, 640 A.2d 1305, 1307 (1994).




                                     - 12 -
J. A31043/13

Bailment § 1 (2009).    Thus, a bailor-bailee relationship generally requires

the existence of a contract:

             A bailment is a delivery of personalty for the
         accomplishment of some purpose upon a contract,
         express or implied, that after the purpose has been
         fulfilled, it shall be redelivered to the person who delivered
         it, otherwise dealt with according to his directions or kept
         until he reclaims it[.] As a general rule, a bailor is not
         liable for the negligence of the bailee in the operation of a
         bailed chattel[.]

Smalich v. Westfall, 440 Pa. 409, 413, 269 A.2d 476, 480 (1970)

(citations omitted and emphasis added). Put differently:

            To constitute bailment, there must be a delivery of
         personal property to another, who accepts possession of
         the property, and exercises custody and control over it.
         While a contract of bailment may be implied, such contract
         can arise only when the natural and just interpretation of
         the acts of the parties warrants such a conclusion.

Riggs v. Com., Dept. of Transp., 76 Pa. Commw. 227, 230-31, 463 A.2d

1219, 1220-21 (1983) (citations omitted);9 see also 6 Pa. Law Encyclopedia



transfer of possession of personal property without the transfer of ownership

                                        d)).




9



NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 308 n.7 (Pa.
Super. 2012) (citation omitted).




                                     - 13 -
J. A31043/13

      A   licensor-licensee    relationship,    however,   unlike   a   bailor-bailee

relationship, does not involve a transfer of personal property.          Oswald v.

Hausman, 378 Pa. Super. 245, 253-54, 548 A.2d 594, 598-99 (1988).

                                                          use of the
          premises in question is by express or implied permission of
          the owner or occupier. A licensee enters upon the land of
          another solely for his own purposes; the invitation
          extended to him is given as a favor by express consent or
          by general or local custom, and is not for either the
          business or social purposes of the possessor.

Id. at 253-54, 548 A.2d at 598-99 (citations omitted); accord T.A., 447 Pa.

Super. at 308, 669 A.2d at 363.                Examples of licensees include the

following:

          1. One whose presence upon the land is solely for his own
          purposes, in which the possessor has no interest, and to
          whom the privilege of entering is extended as a mere
          personal favor to the individual, whether by express or
          tacit consent or as a matter of general or local custom.


          boarders or paying guests and servants, who . . . are
          invitees.

          3. Social guests. . . .

Restatement (Second) of Torts, § 330 cmt. h (1965).

                                                             s invited to enter or

remain on land for a purpose directly or indirectly connected with the



Torts, § 332 (1965); accord T.A., 447 Pa. Super. at 308, 669 A.2d at 363.

              ed to a business invitee is the highest duty owed to any entrant



                                       - 14 -
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upon land. The landowner is under an affirmative duty to protect a business

visitor not only against known dangers but also against those which might

                                         Emge v. Hagosky, 712 A.2d 315,

317 (Pa. Super. 1998) (citation omitted).

       Instantly, we examine the first Althaus factor. As reiterated above,

the trial court held that Appellees were business invitees. Trial Ct. Op. at 6.

With respect to a bailor-bailee10 relationship, Appellant has not established

the existence of a contract, either express or implied.    See Smalich, 440

Pa. at 413, 269 A.2d at 480; see also 6 Pa. Law Encyclopedia 2d, Bailment

§ 1. Appellant did not demonstrate that Appellees delivered personalty to it



it. See Riggs, 76 Pa. Commw. at 230-31, 463 A.2d at 1220-21. Moreover,

we question whether Appellant would have agreed to possess and control

                 See id.




10
     As noted above, Appellant appears to suggest it is the bailor.       See

goods, not receiving them. 6 Pa. Law Encyclopedia 2d, Bailment § 1. If
Appellant successfully established a claim that it was the bailee, then it
would owe a duty to Appellees, i.e., bailors. See id. Furthermore, as

its interest in the alleged bailed goods, i.e., the rags. See generally 6 Pa.

are for damages to the laundromat         not rags.    See, e.g.
Compl., 10/3/11, at 3 (unpaginated).




                                    - 15 -
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business purposes.    See Oswald, 378 Pa. Super. at 253-54, 548 A.2d at

598-99; Restatement (Second) of Torts, § 330 cmt. h.              Appellant, for

example, did not extend a personal favor to Appellees to enter the premises,



social guests. See Restatement (Second) of Torts, § 330 cmt. h. Appellees

did not enter the laundromat solely for their own purposes; Appellees had to

                                      See Oswald, 378 Pa. Super. at 253-54,

548 A.2d at 598-99.       Appellees were business visitors invited to enter



business: laundering. See T.A., 447 Pa. Super. at 308, 669 A.2d at 363;

see also Emge, 712 A.2d at 317.               Appellant proffers no plausible



business invitee.11 In sum, Appellant failed to substantiate as a matter of

law or identify material issues of fact regarding a bailor-bailee or licensor-

licensee relationship.12 Nonetheless, a relationship does exist between the


11
  We decline to consider Garcia, which was cited by Appellant, as it is a
non-binding California case.
Co. of Cent. Pa., 469 Pa. 188, 194, 364 A.2d 1331, 1335 (1976) (noting,

            ).
12
   We reiterate that a legally defined relationship is not required for the first
Althaus factor. See Sullivan, 369 Pa. Super. at 601, 535 A.2d at 1098.
We also recognize that a particular, legally defined relationship may include
a duty of care. See, e.g., Gutteridge, 804 A.2d at 656; Emge, 712 A.2d
at 317. But to the extent Appellant argues that a legally defined relationship
ipso facto mandates the existence of a particular legal duty, see



                                     - 16 -
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parties, as Appellees voluntaril

rags.13

        We next examine the second Althaus factor: social utility.           In

Althaus

treats a child for alleged parental sexual abuse owes a duty of care to the



                                   14
                                        Althaus, 562 Pa. at 549, 756 A.2d at

1167.     The Althaus

abused children perform a valu                                           Id. at



                                                          -patients, especially

where the non-                                              Id.   The Althaus




Brief at 22, that argument contradicts our obligation to weigh and consider
five factors of the Althaus test and not just the first factor. See Althaus,
562 Pa. at 552-53, 756 A.2d at 1168-69. We decline to hold that upon
establishing a legally defined relationship, e.g., bailor-bailee, it necessarily
follows that a party has a duty of care to, e.g., prevent spontaneous
combustion.
13
   The parties do not discuss the duties a business invitee            such as
Appellees would have to a business owner.
14
   The case arose from a medical malpractice action in which the
parents sued the therapist for negligent diagnosis and treatment. Althaus,

the therapist appealed, arguing she did not owe a duty to the non-patient
parents. Id.




                                     - 17 -
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                                                Id. at 555, 756 A.2d at 1170.

       In Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963), our

Supreme Court considered th

conduct in following an insurance claimant.     Id. at 193, 189 A.2d at 148.

The investigator had followed and filmed the claimant in public to record her

                                                         laimant] has freedom

                                   Id. at 194, 189 A.2d at 148. The Forster



investigations.   It is in the best interests of society that valid [insurance]

clai                                                          Id. at 197, 189

A.2d at 150 (footnote omitted).

       In Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003),

a young child obtained a butane lighter and started a fire that ultimately

killed him, his mother, and another child.    Id. at 649, 841 A.2d at 1003.



conduct, namely, the production of a butane lighter without child safety

            Id. at 659, 841 A.2d at 1009. The Phillips Court acknowledged




                     Id.   Further, the record did not show that the li

utility increased without a child safety mechanism. Id. Given the nature of



                                     - 18 -
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young children, the Phillips Court opined that child safety features on a

                                  Id. at 660, 841 A.2d at 1009.

     The instant trial court noted laundering bar rags had social value. Trial

Ct. Op. at 6.   In comparison to treating children who have been sexually

abused, investigating potential insurance fraud, and manufacturing a lighter,

                                            laundering rags has relatively

minimal societal impact.   Cf. Phillips, 576 Pa. at 660, 841 A.2d at 1009;

Althaus, 562 Pa. at 554, 756 A.2d at 1170; Forster, 410 Pa. at 197, 189



advantage with an arguable, attenuated public interest in having clean

establishments. At best, this factor is in equipoise15 and we must weigh the



Althaus

combustion. See Althaus, 562 Pa. at 554, 756 A.2d at 1170.

                             Althaus] factor, duty arises only when one

engages in conduct which foreseeably creates an unreasonable risk of harm

            R.W. v. Manzek, 585 Pa. 335, 348, 888 A.2d 740, 747 (2005)




15
   Because the standard of review is de novo, we need not defer to the
determination of the trial court. See Seebold, 618 Pa. at 650, 57 A.3d at
1243.




                                   - 19 -
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(citing, inter alia, Griggs v. BIC Corp., 981 F.2d 1429, 1435 (3d Cir.

1992));16 Campo, 755 A.2d at 24.

        [T]he concept of foreseeability means the likelihood of the
        occurrence of a general type of risk rather than the
        likelihood of the occurrence of the precise chain of events
        leading to the injury. Although it is true that a defendant
        is not required to guard against every possible risk, he
        must take reasonable steps to guard against hazards
        which are generally foreseeable.

Huddleston v. Infertility Ctr. of Am., Inc., 700 A.2d 453, 460 (Pa.

Super. 1997) (citation and punctuation omitted).

      For example, in Lindstrom, our Supreme Court examined whether a



pol                   Lindstrom, 563 Pa. at 581, 763 A.2d at 395.      The

Lindstrom Court held, with respect to the third Althaus

16
   In Griggs, the United States Court of Appeals for the Third Circuit
approvingly quoted the following:

        No person can be expected to guard against harm from
        events which are not reasonably to be anticipated at all, or
        are so unlikely to occur that the risk, although
        recognizable, would commonly be disregarded. . . . On the
        other hand, if the risk is an appreciable one, and the
        possible consequences are serious, the question is not one
        of mathematical probability alone. . . . As the gravity of
        the possible harm increases, the apparent likelihood of its
        occurrence need be correspondingly less to generate a
        duty of precaution.

Griggs, 981 F.2d at 1436 (quoting W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 31, at 170-71 (5th ed. 1984)); accord
Schmoyer ex rel. Schmoyer v. Mexico Forge, Inc., 437 Pa. Super. 159,
164, 649 A.2d 705, 708 (1994).




                                   - 20 -
J. A31043/13

evident that there is a risk of injury to the fleeing driver, and it is

foreseeable that drivers who refuse to pull over when alerted to do so may

                                                  Id. at 585, 763 A.2d at 397.

Our Supreme Court ultimately held that a police department has no such

duty of care to a fleeing driver. Id. at 580, 763 A.2d at 395.

        Similarly, in                            , 573 Pa. 90, 821 A.2d 1215

(2003), our Supreme Court held that with respect to drug testing,



                                                Id. at 98, 821 A.2d at 1220.

Children playing with butane lighters lacking child safety devices, our

Supreme Court concluded, posed a substantial risk of injury and the

evidence established that the lighter manufacturer could reasonably foresee

that harm. Phillips, 576 Pa. at 660, 841 A.2d at 1009. The Althaus Court

also concluded that the harm in that case          false accusation of sexual

abuse     was substantial and foreseeable given the unique facts of that case.

Althaus, 562 Pa. at 554, 756 A.2d at 1170.

        In the case at bar, as stated above, the trial court asserted that

spontaneous combustion of washed rags left in a dryer was not a

foreseeable risk. Trial Ct. Op. at 7. We agree with the trial court that fire is

an appreciable risk with serious potential consequences. See Griggs, 981

F.2d at 1436; Phillips, 576 Pa. at 660, 841 A.2d at 1009. Appellees were

also aware of the phenomena of spontaneous combustion, although they



                                     - 21 -
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were unaware that grease could cause it.     See

Resp. to Appe

risk of spontaneous combustion, however, does not result in a duty unless



                                                   See R.W., 585 Pa. at 348,

888 A.2d at 747; Huddleston, 700 A.2d at 460. Thus, we examine whether
                                              17
                                                   specifically, leaving washed

rags in the dryer after the dryer completed its cycle   foreseeably created an

unreasonable risk of spontaneous combustion.

        As discussed above, in Lindstrom, our Supreme Court held a driver

fleeing from police foreseeably created an unreasonable risk of injury. See

Lindstrom, 563 Pa. at 585, 763 A.2d at 397. Similarly, the Sharpe Court

held that an inaccurate drug test result foreseeably created an unacceptable

risk of employment termination. See Sharpe, 573 Pa. at 98, 821 A.2d at

1220.    A lighter manufacturer, the Phillips Court held, could reasonably

foresee that lighters without child safety devices could result in an

unreasonable risk of fire or other harm. See Phillips, 576 Pa. at 660, 841

A.2d at 1009.      Finally, a false allegation of sexual abuse was both a

substantial harm and foreseeable under the circumstances of that case. See

Althaus, 562 Pa. at 554-55, 756 A.2d at 1170.

17
  As noted supra, we view the record in the light most favorable to
Appellant.




                                    - 22 -
J. A31043/13

          Unlike the conduct examined by those courts, however, we do not

                                                            specifically, not promptly

removing the rags from the dryer            foreseeably created an unreasonable risk

of spontaneous combustion. See R.W., 585 Pa. at 348, 888 A.2d at 747.

Even given the gravity of the harm posed by spontaneous combustion, we

question whether Appellees, let alone the general public, would have

reasonably anticipated spontaneous combustion under these circumstances.

See id.; see also Griggs, 981 F.2d at 1436.                  After weighing the social

utility    of   laundering       rags   against   the   nature   and   foreseeability   of

spontaneous combustion, we find that these factors weigh against imposing

the affirmative duties proposed by Appellant. See Althaus, 562 Pa. at 555,

756 A.2d at 1170.

          The fourth Althaus factor is the consequences of imposing a duty

upon the actor. Althaus, 562 Pa. at 553, 756 A.2d at 1169. In Althaus,

our Supreme Court held that expanding                                                    -

patients        would    alter    the    therapeutic    relationship   of   professional

confidentiality. Id. at 555-56, 756 A.2d at 1170-71. The consequences of

imposing such a duty, the Althaus Court noted, would deter victims of

sexual abuse from seeking treatment if therapists could not guarantee

confidentiality.        Id.   Thus, our Supreme Court held this factor weighed

against imposing a duty. Id. at 556, 756 A.2d at 1171.




                                            - 23 -
J. A31043/13

     In Thierfelder v. Wolfert, 617 Pa. 295, 52 A.3d 1251 (2012), our

Suprem

professional negligence, a general practitioner who provides mental health

treatment to a patient is held to the same higher duty as a specialist in

                                                lleged, entails a specific and

                                                    Id. at 311, 317, 52 A.3d

at 1261, 1264.    With respect to the fourth Althaus factor, our Supreme

Court observed that

                                                               rs to
         provide their patients with some form of front-line mental
         or emotional care; and this care may go so far as to
         include the prescription of medications to relieve stress-
         induced anxiety and even antidepressants. The proffered
         duty and tort would impose significant consequences on
         general practitioners rendering such care who become
         sexually involved with a patient, solely because of
         incidental mental health treatment. Ours is a fluid and
         complex society, where concepts of free will and personal
         responsibility hold some sway. The prophylactic absolute
         duty of avoidance of sexual contact proffered here excises
         those concepts in one narrow situation deriving from the
         special    circumstances,    vulnerability, and   potential
         exploitation that may arise from a course of mental health
         treatment, based upon a phenomenon familiar to
         specialists in the field.    To hold general practitioners
         providing incidental care to that same standard would have
         the effect of discouraging general practitioners from
         rendering what appears to have become, by now,

         emotional well-being.

Id. at 337-38, 52 A.3d at 1277. The Thierfelder Court held that the effects

                                                                a question of




                                   - 24 -
J. A31043/13

                                                                          Id.

at 338, 52 A.3d at 1277.



                                                                    learn the




prompt removal of rags from the dryer, using a degreasing solution prior to

                              h[ing] the rags to ensure the removal of all



                       Id.

public laundromats, users of same, and commercial restaurant laundry



           Id. As noted above, the trial court disagreed with Appellant. Trial

Ct. Op. at 9.

                                                            Cf. Phillips, 576

Pa. at 6

duty on the public    including customers laundering bar rags in a public

laundromat based on the instant record, is less clear.     Appellant has not

referred us to anything in the record substantiating its bald claim that the

                                     Cf. Thierfelder, 617 Pa. at 337-38, 52

A.3d at 1277; Althaus, 562 Pa. at 555, 756 A.2d at 1170.             We are,

therefore, reluctant to render a social policy judgment and impose a



                                    - 25 -
J. A31043/13

Commonwealth-

characterization of the burden on the public. Cf. Seebold, 618 Pa. at 653,

                                                                   See Trial

Ct. Op. at 9-10; see also Seebold, 618 Pa. at 650, 57 A.3d at 1243

(recognizing de novo standard of review). At best, without more, this factor




                    Althaus factor.    Althaus, 562 Pa. at 553, 756 A.2d at

1169.   For example, in Althaus, our Supreme Court held that competing

public interests weighed against imposing a duty on a therapist treating a



child abuse:

          There are certainly compelling arguments that a person
          falsely accused of child abuse should have a remedy in law
          and our decision today would not prevent all such actions
          against liable parties. However, the societal interest in
          encouraging treatment of child abuse victims and
          maintaining the trust and confidentiality within the
          therapist/patient   relationship   dictates   against  the
          imposition of a duty of care beyond that owed to the
          patient.

Id. at 556-57, 756 A.2d at 1171 (citation and footnote omitted).             The

Althaus

of imposing a duty on a therapist to a non-patient was greatly outweighed

                                                                       Id.    In

Thierfelder, our Supreme examine



                                      - 26 -
J. A31043/13




involvement with patients to general practitioners who undertake some



Thierfelder, 617 Pa. at 338, 52 A.3d at 1277-78. The Court acknowledged



                                                                  Id. at 338,

52 A.3d at 1278. Imposing such an absolute duty, our Supreme Court held,




         18
              Id. at 339, 52 A.3d at 1278. Our Supreme Court thus weighed

the fifth Althaus factor against the imposition of such a duty.     Id.   The

Thierfelder Court recognized, as did the Seebold Court, that courts are ill-

suited to setting public policy.   Id. at 339-40, 52 A.3d at 1278; see

Seebold, 618 Pa. at 653 & n.19, 57 A.3d at 1245 & n.19.

     Instantly, as set forth above, Appellant proposes requiring that all

customers laundering bar rags educate themselves about the risks, promptly

remove rags from the dryer, use degreaser prior to washing rags,

thoroughly wash rags to remove all oils, or use a commercial restaurant

laundry service to clean oily rags.     See

18
  Further, the Thierfelder Court noted such a duty would not deter doctors
who would intentionally engage in such behavior and there were other
causes of action that would not require the imposition of an absolute duty.
Id. at 1278.




                                   - 27 -
J. A31043/13

                                                                     id. at 32-

                                                        ed requirements. See

Thierfelder, 617 Pa. at 338, 52 A.3d at 1277-78.          Appellant, however,



interest in preventing fires.    See

noted that imposing A

feasibly reduce the risk of fire. Trial Ct. Op. at 9.

        We agree that the Commonwealth has an interest in preventing fires.

Cf. Phillips

inter                                                                      Cf.

Thierfelder, 617 Pa. at 338, 52 A.3d at 1278 (conceding complexity of

imposing safeguard of absolute duty best left to, e.g., legislature). Appellant

simply does not discuss the social cost of its solutions. Cf. id. (noting high

social cost of proposed solution).       The parties also did not discuss the

availability of other legal causes of action. Cf. id.; Althaus, 562 Pa. at 556,

756 A.2d at 1171. At best, because Appellant failed to address the potential

social costs of its edicts, this factor weighs against imposing a duty.    Cf.

Thierfelder, 617 Pa. at 338, 52 A.3d at 1278; cf. generally Seebold, 618

Pa. at 653, 57 A.3d at 1245.

                                                                         injury



the burden of guarding against the injury and the consequences of placing



                                       - 28 -
J. A31043/13

                              Althaus, 562 Pa. at 553, 756 A.2d at 1169, the

balance of the Althaus fa

See Seebold, 618 Pa. at 653-54, 57 A.3d at 1245. This case, focused on

the individual interests of Appellant, does not necessarily translate into the

                                                          are best served by

imposing a duty upon the public to, e.g., preemptively guarantee the

absence of flammable oils prior to using a laundromat dryer.         See id.

(noting adversary system of justice ill-suited for imposing Commonwealth-

wide duty).    The Legislat

adversarial process, as our Supreme Court has repeatedly emphasized, is

best suited to setting public policy.   See id.; accord Conway v. Cutler

Grp., 80 MAP 2013, 2014 WL 4064261, at *5, 2014 Pa. LEXIS 2084, at *13-

*15 (Pa. Aug. 18, 2014). Accordingly, given the instant record, we adhere

to our default position of not imposing a new affirmative duty and defer to

our Legislature. See Seebold, 618 Pa. at 653-54, 57 A.3d at 1245.

      For its last issue, Appellant contends the trial court improperly



have reasonably known that laundering bar rags could spontaneously

combust.   Appellant maintains that the trial court accordingly erred as a

matter of law by rendering credibility determinations in favor of Appellees.




                                     - 29 -
J. A31043/13

                                                                 a question of

law   and the burden of proof with respect to whether a duty has been

breached a question for the fact-finder. See Emerich, 554 Pa. at 233, 720

A.2d at 1044.       The trial court did not improperly make credibility

determinations and weigh conflicting evidence adverse to Appellant because

it held that Appellees, as a matter of law, owed no duty of care. See id.;

see also Trial Ct. Op. at 5, 10.    Conversely, because Appellees owed no

duty of care as a matter of law, the trial court did not have to construe facts

or render credibility determinations.   See Emerich, 554 Pa. at 233, 720

A.2d at 1044. Accordingly, having discerned no error of law with the trial

                                                                          See

Gutteridge, 804 A.2d at 651.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2014




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