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On March 30, 18-year-old Gary DeVercelly died tragically in a hazing incident at Rider University after drinking three-quarters of a bottle of vodka as part of a fraternity ritual. Three fraternity members and two Rider University administrators, the director of Greek life and dean of students, were indicted by a grand jury on Aug. 3 on charges stemming from the death; however, on Aug. 28, Superior Court Judge Maria Sypek approved a request by Mercer County Prosecutor, Joseph Bocchini Jr., to dismiss the criminal charges against the two Rider administrators. The initial indictment of the college administrators provoked a firestorm of controversy in the media and raised a host of complex legal issues. The action taken by the prosecutor and the grand jury ran up against two basic principles of criminal jurisprudence. The first is what might be called “the principle of personal causation.” An individual is not ordinarily responsible for crimes in which he or she did not participate. “In general, under the common law, one is not liable for the criminal acts of another in which he did not participate directly or indirectly.” Criminal liability must be based on “personal causation.” The second principle with which the indictment arguably conflicted is the general rule that failure to prevent a crime is not itself a crime. Except in certain contexts established by statute (such as the parent-child relationship), there is no “duty to protect,” the breach of which gives rise to criminal liability. An omission to act results in criminal liability only where a duty to perform the omitted act is otherwise expressly imposed by statute. We might call this “the right not to act.” It is codified in Pennsylvania statutory law at 18 Pa.C.S.A. Section 301(b). “Liability for the commission of an offense may not be based on an omission unaccompanied by action unless the omission is expressly made sufficient by the law defining the offense; or a duty to perform the omitted act is otherwise imposed by law.” (See Commonwealth v. Howard and Commonwealth v. Cardwell regarding the exception to the right not to act in the context of the parent-child relationship.) While the principle of personal causation and the right not to act are relatively hard and fast in the context of criminal law, that is not the case in a civil action. Both are general rules in civil law as well, but they are more flexible and there are many more exceptions. As to personal causation, there are a number of circumstances in which tort liability is imposed upon a third party who did not directly cause the harm. In Pennsylvania, this is sometimes referred to as secondary liability, and rests upon the concepts of imputed or vicarious or constructive fault. Secondary liability arises by virtue of either some legal relation between the parties or a positive rule of common or statutory law. The second basic principle, the right not to act, also normally prevails in civil law. There is ordinarily no liability for failing to prevent the commission of a crime against another person. Pennsylvania law “does not recognize a cause of action against one who fails to prevent another from committing a crime.” There are, however, significant exceptions to this. A duty to protect may arise in cases where there is a “special relationship with either the third party whose conduct needs to be controlled or the intended victim of such conduct.” A number of Pennsylvania cases address the question of what does and does not qualify as a “special relationship” under this rule. In Paliometros v. Loyola, decided Aug. 13, the Superior Court held that one such “special relationship” giving rise to a duty to protect a victim is that between a hotel owner and guest. On Oct. 16, 1998, Angela Paliometros, a student at Indiana University of Pennsylvania, attended a party hosted by members of Sigma Tau Gamma fraternity. The party took place in two hotel rooms that had been rented by the fraternity at the Fort Ligonier Motor Lodge in Ligonier, Pa. Edwin Parsons, one of the co-owners of the hotel and its only employee, knew that the rooms would be used for such purpose. Nevertheless, Parsons left the premises before the first party guests arrived. The hotel was unsupervised during the entire course of the party. Although most of the guests at the party were under age 21, alcohol was served. Paliometros consumed four drinks during the course the evening. She became sick, passed out, and went in and out of consciousness. In the early morning hours of Oct. 17, while she was in this state, she was sexually assaulted by Diego Loyola, and, as a result sustained physical and emotional injuries. Paliometros brought legal action in the Westmoreland County Court of Common Pleas against the national fraternity, the local chapter, certain individual members, the hotel and its owners. Judgment was entered against all of the defendants in the amount of $745,172.17. On appeal to the Superior Court, the hotel and its owners argued, among other things, that they did not have a duty to protect Paliometros. The Superior Court rejected this contention based upon its prior decision in Rabutino v. Freedom State Realty. In Rabutino, a 19-year-old was shot to death at the Travelodge Hotel in South Philadelphia, while attending a beer party with about 200 others also under the age of 21. The administratix of the estate brought action against the hotel owners, among others. The trial court entered summary judgment in favor of the owners, but the Superior Court reversed and remanded. The Superior Court in Rabutino relied on an earlier decision, Moran v. Valley Forge Drive-In Theater, in which the Supreme Court adopted as Pennsylvania law Section 344 of the Restatement (Second) of Torts. This section of the Restatement provides that “a possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to discover that such acts are being done or are likely to be done, or giving a warning adequate to enable visitors to avoid the harm, or otherwise protect them against it.” According to the Superior Court in Rabutino, the “special relationship” required by Pennsylvania law is sufficiently established by showing that the plaintiff is a business invitee or hotel guest. The status of an individual as a business invitee imposes an obligation on the property owner to “take reasonable precaution against harmful third party conduct that might be reasonably anticipated. � One who invites all may reasonably expect that all might not behave, and bears responsibility for injury that follows the absence of reasonable precaution against that common expectation.” Applying Rabutino, the Superior Court held in Paliometros that the hotel owners, “knowing that a fraternity party was going to take place where there undoubtedly would be underage drinking going on, owed to appellee the affirmative duty to exercise reasonable care under the circumstances, and to take precautions by having some supervisory personnel physically present on the premises to monitor both the premises and the conduct occurring upon the same in order to prevent any possible injury to appellee, as a business invitee on their premises.” Over and against the principle of personal causation and the right not to act, there is a powerful countervailing need in contemporary society to fashion legal obligations which will assure a basic level of protection for our young people from the criminal acts of third parties. This may require widening the net of civil accountability beyond the primary perpetrator of the act, to include individuals who do not participate directly in the harm caused. More and more, the principle of personal causation and the right not to act will give way to the duty to protect. The breach of that duty may give rise to civil liability, as in Rabutino v. Freedom State Realty and Paliometros v. Loyola; however, as indicated by the dismissal of the charges in the Rider University case, the judicial system is not prepared to hold criminally liable one who neither participates in nor has knowledge of the crime. This is consistent with Pennsylvania statutory and decisional law and the right not to act under 18 Pa.C.S.A. Section 301(b). MARTIN DOYLE and DAVID FELDER are members of Saul Ewing’s real estate department in the firm’s Philadelphia office. Both have worked on a number of major real estate transactions and have been involved in all aspects of real estate development, sales, finance and leasing. Doyle received a law degree, cum laude, from the University of Pennsylvania Law School. Felder received his J.D. degree, cum laude, from Harvard Law School.

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