Filed: May 04, 2016
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-2695 _ BRUCE M. DOLFMAN, Administrator of the Estate of Li Zhen, Deceased, Appellant v. CEDAR FAIR L.P.; CEDAR FAIR ENTERTAINMENT COMPANY; CCUSA, INC.; ZACHARY J. EDWARDS; JODI E. SKUBISH; R.J. SKELDING CO., INC. _ On Appeal from United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 5-13-cv-02831) District Judge: Honorable Paul S. Diamond _ Argued April 6, 2016 Before: FISHER, COWEN and R
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-2695 _ BRUCE M. DOLFMAN, Administrator of the Estate of Li Zhen, Deceased, Appellant v. CEDAR FAIR L.P.; CEDAR FAIR ENTERTAINMENT COMPANY; CCUSA, INC.; ZACHARY J. EDWARDS; JODI E. SKUBISH; R.J. SKELDING CO., INC. _ On Appeal from United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 5-13-cv-02831) District Judge: Honorable Paul S. Diamond _ Argued April 6, 2016 Before: FISHER, COWEN and RE..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 15-2695
____________
BRUCE M. DOLFMAN, Administrator of the Estate of Li Zhen, Deceased,
Appellant
v.
CEDAR FAIR L.P.; CEDAR FAIR ENTERTAINMENT COMPANY;
CCUSA, INC.; ZACHARY J. EDWARDS; JODI E. SKUBISH;
R.J. SKELDING CO., INC.
____________
On Appeal from United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 5-13-cv-02831)
District Judge: Honorable Paul S. Diamond
____________
Argued April 6, 2016
Before: FISHER, COWEN and RENDELL, Circuit Judges.
(Filed: May 4, 2016)
Bruce M. Dolfman, Esq.
Kirk V. Wiedemer, Esq. [ARGUED]
Unite F2102
901 North Penn Street
Philadelphia, PA 19123
Caroline Reeves, Esq.
143 Park Avenue
Swarthmore, PA 19081
Counsel for Appellant
Joseph S. D’Amico, Jr., Esq. [ARGUED]
Fitzpatrick Lentz & Bubba
4001 Schoolhouse Lane
Stabler Corporate Center, P.O. Box 219
Center Valley, PA 18034
Counsel for Appellees Cedar Fair, L.P. and Cedar Fair Entertainment Co.
John P. Morgenstern, Esq. [ARGUED]
Christopher C. Negrete, Esq.
Deasey Mahoney & Valentini
1601 Market Street, Suite 3400
Philadelphia, PA 19103
Francine T. Radford, Esq.
Goodin MacBride Squeri Day & Lamprey
505 Samsome Street
Suite 900
San Francisco, CA 94111
Counsel for Appellee CCUSA Inc.
____________
OPINION*
____________
FISHER, Circuit Judge.
Bruce Dolfman, administrator of the estate of Li Zhen, appeals the District Court’s
grant of summary judgment in favor of the defendants, Cedar Fair and Camp Counselors
U.S.A. The District Court dismissed Dolfman’s negligence claims because Dolfman
could not prove that the defendants breached their duties of care or that their actions
proximately caused Li Zhen’s death. Because we agree that there is no proximate cause,
we will affirm.
I.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
2
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts that are necessary
to our analysis.
Li Zhen was a twenty-two-year-old student from Tianjin, China, a city of over
eight million people. She had traveled internationally on several occasions and regularly
navigated busy streets. She entered the United States on a J-1 Visa under the Summer
Work and Travel Program, which “provide[s] foreign college and university students
with opportunities to interact with U.S. citizens, experience U.S. culture while sharing
their own cultures with Americans they meet, travel in the United States, and work in
jobs that require minimal training and are seasonal or temporary in order to earn funds to
help defray a portion of their expenses.”1 Li Zhen’s participation in the program was
administered by Camp Counselors U.S.A. (“CCUSA”), a program sponsor that matches
prospective participants with employers in the United States, and Cedar Fair, which
operates Dorney Park & Wildwater Kingdom in Allentown, Pennsylvania.
Li Zhen was a fast food worker at Dorney Park during the summer of 2012. From
June until August 13th, Li Zhen lived in dormitory housing at Cedar Crest College, as
was required by Cedar Fair. After August 13, 2012, Li Zhen resided at the Comfort Suites
Hotel in Allentown. The hotel is located on Hamilton Boulevard directly across from
Dorney Park. Hamilton Boulevard is a busy, four-lane, two-way road with a median strip
and is accessible to Interstate 78 via on and off ramps. Several modes of transportation
1
22 C.F.R. § 62.32(b).
3
from the hotel were available, including a Dorney Park shuttle; a local bus service, which
stopped in front of the hotel; the regional Beiber Bus, which had a terminal three quarters
of a mile from the hotel; a courtesy van provided by the Comfort Suites; and local taxi
services.
On September 4, 2012, Li Zhen left her hotel on foot before sunrise at 5:30 am.
She and her friends had planned a personal trip to Philadelphia, which required Li Zhen
to walk to the terminal for the Beiber Bus. In order to get to the Beiber Bus terminal, two
routes were available to Li Zhen: one required Li Zhen to walk through residential areas
behind the Comfort Suites. This route was much longer than the alternative route—to
walk along Hamilton Boulevard and then to cross the onramp to Interstate 78.
Li Zhen chose the shorter route and walked west along Hamilton Boulevard.
When she approached the onramp to Interstate 78 and began to cross, she was struck by a
Jeep driven by Zachary Edwards. Edwards was nineteen years old and driving to a jobsite
for his employer, R.J. Skelding Co. He held a valid Pennsylvania driver’s license at the
time of the accident but was operating his vehicle illegally because his license restricted
him to “daylight only” driving due to retinoschisis—a genetic eye disorder. The accident
occurred before dawn. Edwards testified that he saw Li Zhen on the ramp, and although
he veered to avoid her, Li Zhen also veered in the same direction. Li Zhen died a short
time after the accident.
4
The plaintiff, Bruce Dolfman, is the administrator of Li Zhen’s estate. He filed suit
in the Eastern District of Pennsylvania alleging state law negligence claims against
defendants Cedar Fair, CCUSA, R.J. Skelding Co., and Zachary Edwards.
Cedar Fair, CCUSA, and R.J. Skelding moved for summary judgment on all of
Dolfman’s claims. The District Court granted Cedar Fair’s and CCUSA’s motions on
November 21, 2014, but denied R.J. Skelding’s motion. After Cedar Fair and CCUSA
were dismissed from the litigation, Dolfman settled his claims with R.J. Skelding and
Edwards. Following the dismissal with prejudice, Dolfman timely appealed the order
granting summary judgment to Cedar Fair and CCUSA.
II.
The District Court had jurisdiction under 18 U.S.C. § 1332. We have jurisdiction
under 28 U.S.C. § 1291. “We exercise plenary review over a grant of summary judgment,
viewing the facts in a light most favorable to the nonmoving party, and applying the same
standard that guides our district courts.”2 Summary judgment is proper where “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”3
III.
In order to make out a claim for negligence in Pennsylvania, Dolfman must show:
the defendants had a duty of care to Li Zhen, they breached that duty, there is a causal
2
Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008).
3
Fed. R. Civ. P. 56(a).
5
connection between their conduct and the resulting injury, and Li Zhen suffered actual
loss or damage.4 Dolfman argues that summary judgment was improper as to both (1)
Cedar Fair and (2) CCUSA.
1.
Dolfman first argues that Cedar Fair was negligent in placing Li Zhen at the
Comfort Suites Hotel, which is located on a dangerous road. According to Dolfman,
Cedar Fair knew that its employees would be required to walk along the road, putting
them in danger. The District Court granted summary judgment in favor of Cedar Fair
because it held that, as a matter of law, there was no proximate cause—any hypothetical
breach of duty on Cedar Fair’s part was not the proximate cause of Li Zhen’s death.5
Dolfman argues that this was error.
Under Pennsylvania law, proximate cause exists where the alleged wrongful act
was a “substantial factor” in bringing about the plaintiff’s harm. “[A] substantial factor
need not be … the only factor in bringing about the relevant harm.”6 Rather, in
determining whether proximate cause exists, we examine: (1) the number of other factors
which contribute to produce the harm and the extent they have in producing it; (2)
whether the actor’s conduct has created a force or series of forces which are in
4
Farabaugh v. Pa. Tpk. Comm’n, 911 A.2d 1264, 1272-73 (Pa. 2006).
5
The District Court also held that neither Cedar Fair nor CCUSA had breached
their duties of care to Li Zhen. Because we hold that the District Court was correct in
finding there is no proximate cause as to either defendant, we do not address the District
Court’s holding concerning the breach of duty.
6
Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 772 (3d Cir. 2009) (internal
quotation marks omitted).
6
continuous and active operation up to the time of the harm, or has created a situation
harmless unless acted upon by other forces for which the actor is not responsible; and (3)
lapse of time.7
The District Court was correct in holding that any alleged breach of duty by Cedar
Fair did not proximately cause Li Zhen’s death. There are simply too many other factors
that contributed to her death to a far greater extent than her placement at the Comfort
Suites Hotel. First, Zachary Edwards drove in violation of his license restrictions and
ultimately struck Li Zhen. Second, Li Zhen chose to make a personal trip to Philadelphia
and left early in the morning before dawn. Finally, she chose not to avail herself of the
other available modes of transportation or take a different route to the bus stop. Li Zhen’s
placement at the Comfort Suites was thus a situation harmless unless acted upon by other
forces for which Cedar Fair is not responsible.
Dolfman contends that his expert reports preclude the District Court from holding
that there was no proximate cause. Dolfman’s experts testified that placing Li Zhen at the
Comfort Suites and failing to safeguard her health, safety, and welfare “were substantial
contributing factors to the death of Li Zhen.”8 However, “an expert witness is prohibited
from rendering a legal opinion.”9 Proximate cause is a question of law for the court to
7
Am. Truck Leasing, Inc. v. Thorne Equip. Co., 583 A.2d 1242, 1243 (Pa. Super.
Ct. 1991) (citing Restatement (Second) of Torts §
433).
8
Ohio App. at 316-330a.
9
Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006).
7
answer.10 Thus, the District Court did not err in granting summary judgment in favor of
Cedar Fair.
2.
In challenging the District Court’s grant of summary judgment in CCUSA’s favor,
Dolfman offers two ways in which CCUSA breached its duty of care and those breaches
proximately caused Li Zhen’s death. First, he argues that CCUSA’s acquiescence to
Cedar Fair’s placement of Li Zhen at the Comfort Suites proximately caused her death;
and second, he argues that CCUSA failed to orient Li Zhen, in violation of its duty under
federal regulations, and that failure proximately caused her death. The District Court held
that any alleged breach—either the acquiescence to Cedar Fair’s housing choice or the
failure to orient—by CCUSA did not proximately cause her death.
For the same reasons that summary judgment was proper with respect to Cedar
Fair, summary judgment was also proper in favor of CCUSA. Cedar Fair’s placing Li
Zhen at the Comfort Suites Hotel was not a substantial factor in causing her death, and
therefore, CCUSA’s acquiescence to that decision also is not a substantial factor in her
death.
With respect to Dolfman’s second argument, unlike Cedar Fair, CCUSA, as
program sponsor, had a duty to orient Li Zhen.11 But even assuming CCUSA breached its
10
Holt v. Navarro, 932 A.2d 915, 921 (Pa. Super. Ct. 2007).
8
duty by not orienting Li Zhen to traffic laws and pedestrian safety, that hypothetical
breach was not the proximate cause of her death. It is too attenuated to constitute a
substantial factor. Instead, too many other factors contributed to a greater extent to her
accident. In addition, Li Zhen’s background and extensive experience in traveling
demonstrate that she did not need to be informed about the risks of crossing the street.
Because any alleged breach by CCUSA did not proximately cause Li Zhen’s death, the
District Court was correct in granting summary judgment in CCUSA’s favor.
V.
For the reasons set forth above, we will affirm the District Court’s order granting
summary judgment in favor of Cedar Fair and CCUSA.
11
22 C.F.R. § 62.10 (requiring the program sponsor to provide orientation to
participants before they arrive) & § 62.32 (requiring the program sponsor, “in those
instances when the employer provides housing or transportation,” to place participants
only with host employers who “agree to provide suitable and acceptable accommodations
and/or reliable, affordable, and convenient transportation”).
9
