Daily Development for
Thursday, May 16, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

COTENANCIES; COTENANT LIABILITY FOR ACTS OF ANOTHER COTENANT: Ownership of property as tenant by the entireties does not create impose a duty upon a wife to protect her husband's minor licensees against criminal or tortious child molestation by the husband. T.A. v. Allen, 669 A.2d 360 (Pa. Super. 1995). Husband and wife owned property as tenants by the entireties. The husband was convicted of criminal offenses involving sexual abuse of his three grandchildren committed in the couple's residence. The three grandchildren brought an action against both husband and wife to recover damages for the husband's acts. Liability of the wife was based on her failure to exercise due care to protect the children against the husband's misconduct. A jury apportioned liability against the wife under Pennsylvania's comparative negligence statute in the amount of 5%. The jury also awarded punitive damages against the husband in the amount of $10,000,000 and against the wife in the amount of $230,000 for each plaintiff.

On the wife's appeal, the Pennsylvania Superior Court, sitting en banc, rejected the plaintiffs' claim that the wife had a duty under 315 of the Restatement (Second) of Torts to exercise due care to protect them from tendencies of her husband of which she knew or should of known. The court found that there was no special relationship between the plaintiffs and the wife that would have imposed a duty to protect the plaintiffs from criminal abuse by their own grandfather. The wife was the husband's second wife, not the children's grandmother. When visiting their grandfather, the children were his licensees, not his wife's. Nor was there any evidence that the wife had assumed any responsibility or special relationship to the children when they visited her husband. Therefore, the court can find no legal basis for imposing an affirmative duty on the wife to protect the children.

Nor was the wife liable as a possessor of land who owes a duty under Restatement (Second) of Torts 329 to a licensee. Her husband, not she, issued the invitation to which the children responded; they were not there in any business relationship with the wife. Therefore, the wife owed only a duty to avoid injuring the children through her active negligence. The husband was not a "condition on the land" giving rise to liability.

There were two dissenting opinions. While agreeing with the majority's conclusion that the wife did not have a duty to protect the children, one pair of dissenters would have remanded for a new trial on the issue of her duty to warn the children about her husband's tendencies. Although she could not, as a co-owner, remove her husband, also a co-owner, and the source of danger to the children, these dissenters believed that the law "can and should impose a duty to warn them of their grandfather's known propensity for sexually abusing children," citing Pamela L. v. Farmer, 112 Cal. App. 3d 206, 169 Cal. Rptr. 282 (1980) (wife who knew that her sex offender husband was inviting minor children home while she was at work had a duty to warn minor licensees of the danger).

A second pair of dissenters dissented from both the majority and first dissenting opinions and would have affirmed the trial court, finding a special duty to protect child licensees based on "the public policy that society should protect those who are too young, too innocent, or too defenseless to protect themselves." Relying on several sections of the Restatement (Second) of Torts, Judge Ford Elliott would find a heightened duty on possessors of land to protect children from harmful acts of known third persons regardless of the children's status as trespassers, licensees, or invitees. Precisely because the wife could not exclude the children nor remove her husband, the cause of their abuse, the duty of care recognized by the trial court should exist here.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233.

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