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The managing companies of a South Philadelphia hotel that did not prevent teen-agers from drinking, crowding the hotel and engaging in violent behavior can be held responsible for the shooting death of an individual on the premises, the Philadelphia Superior Court has ruled. The decision in Rabutino v. Freedom State Realtyreverses in part and affirms in part a Philadelphia Court of Common Pleas decision. “It would be sufficient for Rabutino to withstand summary judgment by producing evidence that Freedom Realty perpetuated an atmosphere where it was foreseeable that a harmful confrontation involving one or more of the unruly groups in the crowded hallways could have arisen,” Judge Correale F. Stevens wrote. Judges John L. Musmanno and Patrick Tamilia also sat on the panel, which delivered a unanimous decision . On Jan. 1, 1997, 19-year-old William Impagliazzo was shot to death at the Travelodge Hotel in South Philadelphia. The hotel is owned, maintained and operated by Freedom State Realty Co., Pace Management Co. and Liberty City Management Co. At the time of his death, Impagliazzo was among about 200 underage individuals at a New Year’s Eve party at the hotel. According to the opinion, partygoers were drinking alcohol and crowding the hallways and rooms of the hotel. A group of Hispanic-American partygoers and a group of Italian-American partygoers engaged in a racial conflict, and Jose Nunez fired a handgun twice into the group of Italian-Americans, hitting and killing Impagliazzo, according to the opinion. Nunez was convicted of third-degree murder, possessing an instrument of crime and reckless endangerment. According to hotel employees and guests at the Travelodge, the crowd was unruly and out of control for most of the evening of Dec. 31 and the early morning of Jan. 1. At trial, an employee in the hotel kitchen testified that he witnessed the lobby crowded with “hundreds” of youths who appeared to be under 21 and who were not registered guests of the hotel. Some individuals, he said, had so much beer that dollies were needed to transport it, and security on the premises had not been granted the authority to control the party. The employee also testified that he heard gunshots being fired out of hotel windows prior to the shooting of Impagliazzo. A security guard testified that many of the young people at the party ignored his requests to be quiet, that the partygoers were littering the hotel with beer cans and that, as the night progressed, the level of unruly behavior increased. The guard also said that he asked Freedom State Realty management to evict the crowd because he did not have the authority to do so but that Freedom State Realty elected not to do so. A hotel guest, who was not a partygoer, testified that she entered the hallway where the majority of the partygoers were gathered about 10 p.m. She witnessed what she said were 100 youths who were crowded in the hallway, some of whom were streaking in their underwear and screaming. The majority of the partygoers, she said, appeared to be drunk. A 17-year-old partygoer also testified that she warned security of a possible fight brewing between the Italian-American and Hispanic-American partygoers. The opinion states that, early in the night, Freedom State Realty did bring the police to the Travelodge. However, after the police advised Freedom State Realty to eject the partygoers, Freedom State Reality opted not to do so. Adeline Rabutino, Impagliazzo’s mother, filed suit alleging negligence on the part of Wells Fargo Guard Services, which provided security at the hotel; Pace Management; Liberty City Management; the Travelodge Hotel; and Freedom State Realty for failure to protect Impagliazzo from Nunez’s criminal conduct. All defendants filed a motion to dismiss, and a common pleas judge granted the petitions. Rabutino appealed the decision for all defendants except for Travelodge, which was dismissed from the suit. On appeal, Rabutino argued that she provided evidence that, when viewed in a light most favorable to her, presented triable factual issues as to Freedom State Realty’s and Wells Fargo’s negligence. The Superior Court, however, upheld the trial court’s grant of summary judgment to Wells Fargo. According to the opinion, Rabutino, Freedom State Realty and Wells Fargo all agreed that Rabutino established that Impagliazzo was a business invitee of the defendants. “It follows then, that Freedom Realty owed Impagliazzo a duty owed to any business invitee, namely, that it would take reasonable precaution against harmful third party conduct that might be reasonably anticipated,” Stevens wrote, citing the Pennsylvania Supreme Court’s 1984 decision in Feld v. Merriam. Feldadopted as Pennsylvania law innkeeper liability as stated in the Restatement (Second) of Torts,  344, Business Premises Open to Public: Acts of Third Persons or Animals. In part,  � 344 reads: “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.” Rabutino’s breach of duty argument, the court said, is rooted in  344 because it alleges a failure to police adequately. Rabutino argued that Freedom State Realty breached its duty to respond reasonably to apparent drunken behavior and did not prevent foreseeable harm from occurring to the hotel’s invitees. “We agree that reasonable responsiveness to presently occurring conduct of third persons likely to cause harm is clearly within the scope of duties imposed on possessors in Section 344,” Stevens said. “Furthermore, and contrary to the lower court’s opinion, the disputed record of material fact may reasonably support Rabutino’s claim that Freedom Realty breached its Section 344 duty.” Some court testimony, when viewed in a light most favorable to Rabutino, reveals that Freedom State Realty knowingly allowed extensive underage drinking and out-of-control behavior on New Year’s Eve, according to the opinion. “This forecast of evidence, if believed, would allow a reasonable jury to impute to Freedom Realty actual knowledge of a foreseeable risk of harm that went effectively unchecked,” the court said. “Indeed, reasonable minds could differ as to whether it is a common expectation that an already unruly assembly of underage drinkers, left in large measure to their own devices in a reputedly permissive hotel, would engage in careless or deliberate conduct resulting in injury to themselves or other invitees.” The court also determined that reasonable minds could differ as to whether Freedom State Realty failed to address the possibility of injury with reasonable precaution and responsiveness. Therefore, the trial court’s summary judgment as to that element of Rabutino’s  344 claim was in error, the court ruled. The Superior Court then had to decide if an issue of material fact existed regarding whether Freedom State Realty’s purported breach of duty was a legal cause of Impagliazzo’s death. The defendants argued that Nunez’s shooting of Impagliazzo was unforeseeable and was wholly independent of the activities going on in the hotel. The Superior Court disagreed. While Nunez’s firing of the gun was an intervening force in Impagliazzo’s death, a jury, the court said, may reasonably determine that the shooting was not so unforeseeable as to terminate Freedom State Realty’s liability. “We must be mindful that the peculiar way in which an injury may result is not material so long as there was a foreseeable probability of injury to one within the ambit of danger,” Stevens wrote. The court also said that Rabutino could withstand summary judgment by producing evidence that Freedom State Realty perpetuated an atmosphere where it was foreseeable that a harmful confrontation would occur involving the group gathered at the hotel. As a matter of law, the court said, it could not be determined that the shooting was an unforeseeable event superseding the defendant’s negligence. “Indeed, the confrontation may reasonably be understood to have sprung directly and predictably from the failure to respond adequately to the events as they evolved on the Travelodge’s fifth floor,” Stevens wrote. Rabutino’s evidence that Freedom State Realty’s purported negligence was a substantial factor in bringing about Impagliazzo’s death was sufficient, the court said, to reverse the lower court’s decision to grant summary judgment in favor of Freedom State Realty, Pace Management and Liberty City Management.

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