Parx Casino’s Potential Liability For Children Left Unattended In Cars
Read more about child abuse lawsuits.
The Inquirer has an interesting article about Parx Casino and its “dubious distinction of being the only gambling hall in Pennsylvania where adults have been caught leaving children in vehicles parked outside while they gambled inside”:
In the last 17 months alone, Parx – Pennsylvania’s top-grossing casino – saw 10 individuals arrested on its property and charged with endangering the welfare of children left in vehicles while the adults gambled inside.
In just the last week: Michael Roytman, 29, of Huntingdon Valley was charged with leaving his 6-year-old daughter in his car in sweltering heat and was jailed after failing to post $75,000 bail; Frances Casey, 39, of Abington, was charged in connection with leaving two nephews, ages 1 and 2, and a 9-year-old niece in her automobile July 16. She is to be issued a court summons.
Parx is taking action on the matter, said casino spokeswoman Carrie Nork-Minelli.
“This is the action of irresponsible adults, and we do our best to combat it with the highest level of security and surveillance possible,” she said. “We’ve added additional security teams and patrol units – that are not required by the Gaming Control Board – to help with this type of deplorable activity.”
But the most recent incidents have occurred despite those stepped-up measures.
It’s a serious problem; about fifty children die every year because they were left unattended in a car.
The article is titled “Should Parx Casino be liable in child-neglect cases?” but the article is more about the Gaming Control Board’s review of the situation rather than about Parx’s liability for those incidents, and to my knowledge no lawsuits have been filed alleging as much. Casinos’ primary legal liability tends to involve slip-and-fall cases or liquor liability, but, if the Parx trend continues, we might see lawsuits arising from these issues, so let’s consider the question anyway.
As the casino’s spokeswoman said, it is, of course, “deplorable” and “irresponsible” for parents to knowingly leave their children unattended in cars while they go gamble, and the parents are primarily responsible for the harm, but that doesn’t necessarily mean the casino isn’t also responsible for the problem.
After all, the casino owns the land in question and thus has certain legal duties. Paraphrasing Gutteridge v. AP Green Services, Inc., 804 A.2d 643 (Pa. Superior Court 2002), the standard of care a possessor of land owes to one who enters upon the land depends upon whether the latter is a trespasser, licensee, or invitee. Emge v. Hagosky, 712 A.2d 315, 317 (Pa.Super.1998). Pennsylvania law defines “invitee” as follows:
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land.
Updyke v. BP Oil Co., 717 A.2d 546, 549 (Pa.Super.1998). Pennsylvania case law uses the terms “business visitor” and “business invitee” almost synonymously.
The duty of care owed to a business invitee (or business visitor) is the highest duty owed to any entrant upon land. Emge, 712 A.2d at 317. The landowner must protect an invitee not only against known dangers, but also against those which might be discovered with reasonable care. Id. Pennsylvania case law sets forth the duty that a possessor of land owes to business invitees as follows:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Summers v. Giant Food Stores, Inc., 743 A.2d 498, 506 (Pa.Super.1999) (en banc), appeal denied, 564 Pa. 713, 764 A.2d 1071 (2001). That’s the same approach used by Section 343 of the Restatement (Second) of Torts.
Casinos are, of course, open to the public for business reasons, so everyone who enters the casino or its parking lot — parents and children, even if the children aren’t going to gamble — is by law an “invitee.” They thus have “the highest duty owed to any entrant upon land,” and will be liable for damages if elements (a), (b) and (c) are met.
One important point to remember before we go further: any lawsuit against a casino for failing to protect a child left unattended in their parking lot would be on behalf of the child, not the parents.
That simplifies the analysis of (a)—(c) above. A child left in a car plainly faces an “unreasonable risk of harm,” a risk the child “will not discover or realize the danger, or will fail to protect themselves against,” and plainly the only way to “exercise reasonable care to protect a child in a car” is to immediately get the child out of the car by finding the owner, picking the lock, or smashing the window.
Thus we’re left with the question of if the casino “knows or by the exercise of reasonable care would discover the condition” We can reword that as a question: would a casino exercising reasonable care discover an unattended child in a car before the child was hurt?
If, as the casino spokeswoman said, Parx has really set up “the highest level of security and surveillance possible,” then, well, the question is answered as a matter of law: the law doesn’t expect anyone to do the impossible. I’m assuming that’s just hyperbole, though, and what she really meant is that the casino believes it’s taking reasonable efforts.
How many “security teams and patrol units” are “reasonable”? That’s a question that’s too fact-specific to really be answered at this point, but it bears mention that parking lot security isn’t exactly a new issue — consider the sexual assault in a hotel parking lot case referenced here. Protecting children in cars seems to me easier than protecting against malicious criminals. Even apart from patrols, how hard is it to have a greeter sit in a booth at the entrance to the parking lot who politely welcomes guests, explains to them the specials and shows of the day, takes a peek in the window and asks, “do you have any kids in the car?”
But not every court agrees; consider Saelzler v. Advanced Group 400, 23 P.3d 1143 (Cal. 2001):
We granted review in this case to consider important issues concerning the liability of apartment owners and other business enterprises to persons injured on their premises by the criminal acts of others, a liability based solely on the business owners’ negligent failure to provide adequate security measures to protect those who enter their property. The difficulty in resolving these issues is enhanced by the need to balance two important and competing policy concerns: society’s interest in compensating persons injured by another’s negligent acts, and its reluctance to impose unrealistic financial burdens on property owners conducting legitimate business enterprises on their premises.
In this case, we attempt to balance these interests consistent with prior case precedent. As will appear, we conclude (contrary to the Court of Appeal below) that the trial court properly granted summary judgment to defendants based on plaintiffs failure adequately to demonstrate that defendants’ negligence was an actual, legal cause of her injuries. Here, plaintiff alleged she was assaulted on defendants’ premises by unknown assailants after she attempted to deliver a package to an apartment resident. Although plaintiffs evidence raised triable issues as to whether defendants owed her a duty of care and breached that duty by failing to provide additional security guards or functioning, locked security gates, her evidence was insufficient to show, as a triable factual issue, that defendants’ asserted breach of duty actually caused her injuries. Plaintiff acknowledges that her assailants were never apprehended and their identity remains unknown to her. Accordingly, she is unable to prove they would not have succeeded in assaulting her if defendants had provided additional security precautions.
The facts in Saelzler were absurd:
As the trial court found, plaintiff presented evidence that defendants knew of frequent recurring criminal activity on the premises of their 28 building apartment complex. The community of Bellflower was itself a high-crime area, with considerable juvenile gang activity occurring both on and off defendants’ premises. Plaintiff provided police reports and security logs showing that within the year prior to her assault, defendants received 41 reports of trespass, and 45 reports of occasions in which various perimeter fences and gate doors were broken or rendered inoperable. The list of criminal activity on the premises included incidents of gunshots, robberies, and sexual harassment of women, including sexual assaults and rapes.
Defendants’ security manager acknowledged that during the year preceding the assault on plaintiff, several nighttime assaults, and actual or attempted rapes, occurred on the premises. Plaintiff produced evidence that a gang called the 706 Hustlers was reportedly “headquartered” in one of defendants’ apartment buildings, conducting drug transactions, and hitting and intimidating other people on the premises. In the year prior to the incident involving plaintiff, sheriffs officers came to the Sherwood Apartments approximately 50 times. Much of this criminal activity was reported to defendants’ manager, either in daily incident reports from their nighttime security officers or in police reports. Some pizza parlors refused to deliver to apartments in the complex, insisting residents come to the sidewalk if they wanted delivery of pizzas ordered by phone. Defendants’ apartment manager used security personnel to escort her to her vehicle whenever she left the premises.
It was an unreasonably dangerous place made even more dangerous by the failure to hire security guards and to ensure adequate gates or locks. Yet, the California Supreme Court refused to let a jury even hear the case, reasoning that, because the plaintiff couldn’t find the criminals who assaulted her and hear their testimony as to whether or not better gates or guards would have deterred them.
The decision was, in a word, unfair, an attempt by a court to create the policy result it preferred instead of applying the law and letting the jury sort the facts out. The same might impact any lawsuit arising from a child left in a vehicle parked at Parx: the bias towards the parent might be visited upon the child, blaming them for their parent’s lack of judgment or mental illness and thereby denying them even the possibility of compensation — and eliminating any accountability for the casino — by denying them their right to a jury trial.