Pennsylvania law imposes no duty upon a valet service to withhold the keys to a vehicle if the owner appears visibly intoxicated, an en banc panel of the Superior Court ruled in Moranko v. Downs Racing L.P., __ A.3d __ (No. 192 MDA 2013, filed June 10, 2015). After consuming “copious amounts of alcohol” at the Mohegan Sun casino, Richard Moranko (Decedent) retrieved his vehicle from valet services. He was involved in a fatal car accident after he left the casino. Decedent’s mother, Faye Moranko, instituted a wrongful death and survival action, arguing that Mohegan Sun was negligent in serving Decedent alcoholic beverages and in handing over his car keys when he was allegedly visibly intoxicated. Mohegan Sun moved for summary judgment, which the trial court granted. A panel of the Superior Court affirmed. Moranko sought reargument en banc, which was granted.
In an opinion authored by Judge Panella, the en banc Court panel affirmed the entry of summary judgment in favor of Mohegan Sun. The Court noted that a mutual bailment is created where a valet accepts possession of a patron’s keys and parks the vehicle. Applying the reasoning of a factually similar Nevada case, the Court held that Mohegan Sun’s valet service, as bailee, was duty bound to surrender control of Decedent’s vehicle when it was demanded, notwithstanding his alleged intoxication. When Decedent requested the return of his vehicle, Mohegan Sun lost the right to control the car, and could not be liable for Decedent’s subsequent actions. The Court rejected Moranko’s reliance upon Section 324A of the Restatement (Second) of Torts (Liability to Third Person for Negligent Performance of Undertaking) since liability to third persons was not at issue. The Court found Moranko had waived her argument under Section 323 of the Restatement (recognizing duty to others for voluntarily assumed undertakings). Finally, the Court rejected Moranko’s argument that a duty of care arose from Mohegan Sun’s internal policies since the policies she cited were aimed at keeping visibly intoxicated patrons off of the gaming floor, not at preventing them from retrieving their automobiles.
Judge Mundy, joined by Judge Donohue and President Judge Emeritus Bender, dissented. Judge Mundy disagreed with the majority’s conclusion that Mohegan Sun’s internal policy was limited to keeping intoxicated patrons from the gambling floor. Judge Mundy cited testimony from two Mohegan Sun employees indicating that the policy was broader in scope and also aimed to prevent intoxicated patrons from driving. Judge Mundy disagreed with the majority’s conclusion that Moranko had waived her argument under Section 323 of the Restatement (Second) of Torts, which Pennsylvania has adopted and which recognizes that a duty may be found in a party who voluntarily assumes an undertaking. Judge Mundy would find that Mohegan Sun’s voluntary provision of valet services to its patrons created a duty of care to Decedent.