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Mellon Bank Corp. cannot be sued for negligence by an independent contractor who was shot while attempting to repossess a car from a woman who defaulted on her Mellon loan, a federal judge has ruled. U.S. District Judge Thomas N. O’Neill of the Eastern District of Pennsylvania predicted how the state supreme court would rule on the issue, and said an employer owes no duty to protect an independent contractor from harm by a third party. O’Neill, therefore, granted Mellon’s motion for summary judgment in Simmons v. Galin. Plaintiff Edwin Simmons worked for D&D Adjustment Co., a car repossession company. On October 4, 1995, Simmons and his boss, David Hermes, attempted to repossess a car owned by Rosita Conroy. Mellon had financed the car, and the loan was allegedly in default when Mellon hired D&D to repossess the vehicle. Simmons used a duplicate key he had secured with information provided by Mellon to gain access to the car. He was backing the car out of an alley near Conroy’s home into a nearby gas station when Jacques Galin, Conroy’s boyfriend, fired 11 shots at him. Galin contended that he thought the car was being stolen by Simmons. Galin said he believed that Conroy’s mother had paid the overdue balance on the car loan. Simmons filed suit claiming negligence, negligent misrepresentation and vicarious liability against Mellon. He also sued Galin and Conroy for assault and battery and intentional infliction of emotional distress. The sole issue before O’Neill was Mellon’s motion for summary judgment. A large portion of both parties’ arguments on the factual disputes revolved around whether Mellon received a check from Conroy’s mother, paying off the overdue balance. Mellon claimed it was entitled to summary judgment because the payment was not received until after the date of the attempted repossession, it did not owe a duty of care to Simmons, and its actions were not the proximate cause of Simmons’ injuries. Simmons argued that the date Mellon received the check was an issue of material fact rendering summary judgment inappropriate. O’Neill concluded that the date the check was received was not a fact material to Simmons’ negligence claim because Mellon owed no duty of care to the plaintiff. The state supreme court has never addressed the issues Simmons presented, so it was up to O’Neill to anticipate which way the justices would rule. Two of Simmons’ causes of action sought recovery under the Restatement (Second) of Torts, under Sections 416 and 427. Those sections, O’Neill said, impose vicarious liability for the negligence of an independent contractor on an employer who hires the contractor to do work involving “heightened risks of physical harm to third parties.” However, any successful action under those torts must involve a plaintiff’s argument that he or she failed to exercise reasonable care. Simmons made no such claim, O’Neill said. “Because [Simmons] alleged that his injuries were caused by the negligence of others and not himself, these two claims of vicarious liability against Mellon are not viable,” O’Neill said. Turning to Simmons’ negligence claims, O’Neill said that to support them, Simmons would have to show that Mellon violated a duty of care owed to him. O’Neill looked to the state Superior Court for assistance in predicting that the supreme court would not find in Simmons’ favor. In the 1995 case Elbasher v. Simco Sales Service of Pennsylvania, the plaintiff leased an ice cream truck from the defendant manufacturer and sold the defendant’s ice cream along an assigned route. The Superior Court said the manufacturer did not owe a duty to protect an independent contractor from the criminal acts of unidentified third parties. “As a general rule, a person is not liable for the criminal conduct of another in the absence of a special relationship imposing a pre-existing duty,” the Superior Court said. O’Neill said there was no special relationship between Simmons and Mellon imposing a pre-existing duty. “Mellon does not owe a duty to protect an employee of its independent contractor against the intentional, violent criminal assault by a third person unknown to Mellon,” O’Neill said. “I predict the Pennsylvania Supreme Court would adopt the Elbasher decision.”

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