                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2005

Phifer v. DuPont Country Club
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2928




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"Phifer v. DuPont Country Club" (2005). 2005 Decisions. Paper 888.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/888


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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 04-2928
                                    ____________

                                    JAMI PHIFER,

                                           Appellant

                                          v.

                         DU PONT COUNTRY CLUB, INC.;
                    E.I. DU PONT DE NEMOURS & COMPANY
                                 ____________

                    On Appeal from the United States District Court
                              for the District of Delaware
                                (D.C. No. 03-cv-00327)
                     District Judge: Honorable Sue L. Robinson
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 30, 2005

              Before: NYGAARD, SMITH and FISHER, Circuit Judges.

                                 (Filed: July 7, 2005)
                                    ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      Appellant Jami Phifer was injured on the premises of Du Pont Country Club

(“Club”) when a man not employed by or affiliated with the Club knocked her to the
ground. She brought suit against the Club for her injuries.1 The District Court granted

Du Pont’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on

grounds that Phifer had failed to allege an unreasonably dangerous condition or that any

such condition proximately caused her injuries. We will affirm the District Court.

       As we write solely for the parties, and the facts are known to them, we will discuss

only those facts pertinent to this appeal. Phifer was attending a business convention at the

Club. After exiting the main doors of the Club, Phifer walked down a set of concrete

stairs leading from the main doors to a concrete sidewalk. The stairs were crowded with

people entering and exiting the doors. As Phifer reached the sidewalk, she heard a loud

noise originating from the direction of a white-colored truck parked in the Club’s circular

driveway adjacent to the main doors. Phifer believed that the truck was being unloaded at

the time. Phifer does not allege that the noise was caused by the truck or by the alleged

unloading of its contents. Phifer looked in the direction of the noise when, at roughly the

same time, an unknown male, startled by the noise, leapt into her path and collided with

her; there is no allegation that this male was employed by the Club. The collision caused

Phifer to be thrown into the air and she landed on her back on the concrete stairs, causing

her injuries.




       1
       Appellee E.I. Du Pont de Nemours & Company (“Du Pont”) was substituted for
the Club as the proper party defendant pursuant to a joint stipulation filed by the parties.

                                              2
       Phifer asserts two claims based on these allegations – negligence and negligent

infliction of emotional distress. She claims that Du Pont violated its duty as a landowner

to exercise reasonable care to anticipate, inspect and discover dangerous conditions on its

property, in this case, the unloading of a truck in the vicinity of business invitees walking

on a sidewalk. She also alleges that Du Pont breached a duty of care to protect its

business invitees from the likelihood of being harmed by third persons on the property.

       The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have

appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the

District Court’s Rule 12(b)(6) dismissal of Phifer’s claims, and in doing so must accept

all material allegations of Phifer’s complaint as true and draw all reasonable inferences

from the complaint in her favor. See Lum v. Bank of America, 361 F.3d 217, 223 (3d Cir.

2004). Delaware law governs this diversity action. There is no dispute that Phifer was

the Club’s business invitee. In Delaware, “[a] possessor of property who invites others

onto his property to conduct business must exercise due care to keep his property in a

reasonably safe condition and warn of any unreasonable risks which he knows about, or

with the exercise of reasonable care would have known about, and which the other would

not be expected to discover for himself.” Hess v. United States, 666 F. Supp. 666, 670

(D. Del. 1987) (citing, inter alia, DiSabatino Bros., Inc. v. Baio, 366 A.2d 508, 510 (Del.

1976)) (other citations omitted). In other words, a business invitee must allege (1) the

existence of an unreasonably dangerous condition, (2) that was known or should have



                                              3
been known by the landowner, but (3) was not discoverable by the invitee. Id. at 671. Of

course, a business invitee must also allege proximate causation and the other traditional

elements of a negligence claim. See Duphily v. Delaware Elec. Coop., Inc., 662 A.2d

821, 828 (Del. 1995).

       The District Court found that Phifer had failed to allege the existence of an

unreasonably dangerous condition or proximate causation. We agree. Assuming the

truck in the circular driveway was actually being unloaded, and the loud noise emanated

from, perhaps, objects dropped during the unloading process, we fail to see how this

amounts to an unreasonably dangerous condition. Finding otherwise would improperly

expand the concept of unreasonably dangerous conditions.

       Sufficient allegations of proximate causation are also lacking. “A proximate cause

is one that ‘in natural and continuous sequence, unbroken by any efficient intervening

cause, produces the injury and without which the result would not have occurred.’”

Delaware Elec. Co-op., Inc. v. Duphily, 703 A.2d 1202, 1209 (Del. 1997) (citations

omitted). Phifer would have us find that the unloading truck, which supposedly caused a

loud noise, which in turn caused an unknown male not affiliated with the Club to collide

with her, creates a legally sufficient chain of causation to support her negligence theory.

Such a causal connection is too tenuous, though, to meet the proximate causation test.




                                              4
       Moreover, the collision caused by the unknown male was a superseding cause

terminating any causal effect of the truck, the unloading and the noise. “In order to break

the causal chain, the intervening cause must also be a superseding cause, that is, the

intervening act or event itself must have been neither anticipated nor reasonably

foreseeable by the original tortfeasor.” Duphily, 703 A.2d at 1209 (citation omitted).

“Thus, a third party’s act is an intervening, superseding cause if it was either

unforeseeable, or was foreseeable but conducted in an extraordinarily negligent manner.”

Id. (citation omitted). “A foreseeable event is one where the defendant should have

recognized the risk under the circumstances.” Id. (citation omitted). We cannot see how

the Club could or should have foreseen that a noise produced by a truck unloading on its

front driveway would have been so loud as to startle one of its guests so much that the

collision alleged here would have occurred.

       For all of these reasons, the District Court was correct to dismiss Phifer’s

negligence claim. Because Phifer’s other claim – negligent infliction of emotional

distress – turns on the existence of a cognizable negligence claim, that was correctly

dismissed as well. Accordingly, we will affirm the judgment of the District Court.




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