Thomas J. Evanko v. MANAGEMENT & TRAINING CORPORATION On Appeal from the United States District Court…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 08-2060
THOMAS J. EVANKO,
Appellant.
v.
MANAGEMENT & TRAINING CORPORATION
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 06-cv-02440)
District Judge: Hon. Richard P. Conaboy
Submitted under Third Circuit LAR 34.1(a)
on May 14, 2009
Before: AMBRO and ROTH, Circuit Judges
and FISCHER*, District Judge
(filed: May 6, 2010 )
*Honorable Nora Barry Fischer, United States District Judge for the Western
District of Pennsylvania, sitting by designation.

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O P I N I O N
ROTH, Circuit Judge:
Thomas Evanko has sued Defendant Management and Training Corporation,
operator of the Keystone Job Corps facility, for negligence arising from injuries he
suffered when three students left the facility without permission and one of them struck
him in the face. The District Court granted summary judgment in favor of Defendant,
holding that it owed no duty of care to Evanko. Evanko has timely appealed and argues
genuine issues of material fact existed.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a grant of summary judgment is
plenary. Nationwide Mut. Ins. Co. v. Riley, 352 F.3d 804, 806 n.3 (3d Cir. 2003). We
will affirm.
A plaintiff alleging negligence “must demonstrate that the defendant owed a duty
of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to
the plaintiff and the plaintiff suffered an actual loss or damage.” Brisbine v. Outside In
Sch. of Experimental Educ., Inc., 799 A.2d 89, 93 (Pa. Super. Ct. 2002) (quoting
Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 40 (Pa. Super. Ct. 2000)).
“Generally, there is no duty to control the acts of a third party unless the ‘defendant
stands in some special relationship’” either to the third party actor or to the injured

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person. Id. at 93 (quoting Brezenksi, 755 A.2d at 40). Pennsylvania law limits the
“special relationship” duties to the four recognized in the Restatement (Second) of Torts:
(1) a parent’s duty to control a child; (2) a master’s duty to control a servant; (3) the duty
of a possessor of land to control a licensee; and (4) the duty of those in charge of an
individual with dangerous propensities to control the individual. See Restatement
(Second) of Torts §§ 316–319 (1965). Only the first and last of these relationships are
potentially applicable to the facts of the instant case.
As the District Court observed, there is no “special relationship” under the
applicable Restatement sections—and, thus, no duty—unless the defendant knew or
should have known that the third party actor was likely to cause injury. See Frey By and
Through Frey v. Smith By and Through Smith, 685 A.2d 169, 174 (Pa. Super. Ct. 1996)
(“[I]f the injury [inflicted by a child] ought to have been foreseen by the parents, their
negligence is the proximate cause of the injury.”); see also Restatement (Second) of Torts
§ 319 (1965) (“One who takes charge of a third person whom he knows or should know
to be likely to cause bodily harm to others if not controlled is under a duty to exercise
reasonable care to control the third person to prevent him from doing such harm.”).
Here, on the record presented, no reasonable jury could conclude that Evanko’s
injury was foreseeable to Defendant. The student who struck Evanko had a clean
criminal record, and though he had committed a number of minor infractions while at the
facility, none of those infractions evidenced a tendency to commit violent or criminal

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behavior. The histories of the other two students are of no moment, since they did not
cause any injury to Evanko. Finally, though Evanko attempts to portray the Keystone Job
Corps as a detention or incarceration facility, we agree with the District Court that he
failed to produce any evidence to support a finding that the students are a “special class”
of dangerous individuals.
Accordingly, we will affirm the judgment of the District Court.

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