Recent Blog Posts in July 2010

The family of an alleged victim of priestly sexual abuse who killed himself filed a wrongful death suit Thursday against the Catholic diocese of Pittsburgh.

Michael Unglo's family said the diocese and Bishop David Zubik should have continued to pay for his treatment at the Austen Riggs Center in Massachusetts, the Pittsburgh Tribune-Review reported. Unglo killed himself at Austen Riggs in May, two months after he was told a final payment of $75,000 from the diocese would be the last one.

Unglo, 39 when he died, grew up in Etna, Pa., and said he was molested for several years by Richard Dorsch, the priest at All Saints Church. Dorsch was later defrocked and imprisoned after he was convicted of abusing another boy.

The diocese began paying for Unglo's psychiatric treatment after a 2008 suicide attempt. In December that year Zubik promised Unglo and his brothers the church would "right the wrong" to him.

Unglo made a second unsuccessful suicide attempt last year

2010 UPI

Almost four years after filing a civil suit against former Lafayette Police Chief Randy Hundley and the department, Jeanette Luque was awarded $23,000 in a settlement.

While the criminal trial against Hundley ended in June 2008 with a plea bargain, in which he pleaded guilty to attempted malfeasance in office, the city is now paying for his alleged wiretapping of Luque's desk.

"It was never about the money," said Jill Craft, Luque's attorney. "It was about exposing things that should have never even happened. She did nothing more than to stand up for what was right."

In August 2004, a state police investigation found that a wireless microphone was planted in her office. For about 30 to 45 days, the microphone remained in Luque's office but investigators said there was nothing of value on the tapes as it had only recorded background noise.

Craft said the main issue was to ensure that everyone has a right to privacy, even in the workplace.

"And for the police to install listening devices without their consent violated the law," she said.

Hundley's co-defendants in the criminal case — Shannon Hundley, Brian Butler and Michael Lavergne — had their charges dropped after testifying against Hundley saying Hundley had given them orders to place the microphones.

Hundley resigned as the police chief in June 2006 after 30 years working for the department.

"I think (Luque) is first and foremost relieved," Craft said. "Secondly, I am extraordinarily proud of her for standing up for herself, as should everyone else be."

Luque continues to work for Lafayette police.

J.J. Alcantara • jalcantara@theadvertiser.com • July 30, 2010

Mr. Bell’s children, whom he had with his fiancée, Nicole Paultre Bell, will receive $3.25 million. Mr. Bell’s two friends Joseph Guzman and Trent Benefield, who were injured in the shooting, will receive $3 million and $900,000, respectively. [NYT] (Also see The New York Post and The Daily News.)

A Kalama home developer won a $5.8 million settlement against the man who shot him four times in 2008, according to court documents.

Clark County Superior Court Judge Barbara D. Johnson ruled last week that the shooter, Roy S. Jorgenson of Woodland must pay the damages to Chad Wilson, who underwent 14 surgeries following the attack and racked up more than a half-million dollars in medical bills.

Wilson's lawyer doesn't expect his client to ever see anywhere near that amount, however.

A jury convicted Jorgenson of second-degree assault in March. He is serving a nine-month sentence in the Cowlitz County Jail.

Wilson, the developer of the high-end Dave's View housing tract in Kalama, said this week that it's been a difficult stretch, with one legal battle after another.

In 2007, the city of Kalama accused Wilson of stealing two million gallons of water from a city reservoir for two ponds at the development's entrance and his personal home. The prosecutor dropped charges against Wilson of defrauding a public utility in November 2007 and Kalama officials withdrew a civil claim against him in 2008, Wilson said in court documents.

Wilson filed a civil claim for unspecified damages against the city of Kalama in June, saying the imbroglio cost him past and future earnings. Kalama City Attorney Paul Brachvogel declined to comment on the claim, except to say, "We'll defend any claim like that that's brought against the city - vigorously."

In addition, Wilson faces a lawsuit from his development's residents, saying he improperly assessed and collected fees against members of the developments' homeowners' association. He said he suspects the allegations of water theft lead residents to believe he mishandled the homeowners' association's funds.

"He's had an awful lot on his plate between the shooting and this," said Longview attorney Duane Crandall, who is representing Wilson in his claim against the city of Kalama. "He's kind of swimming for the surface at this point."

At the time of Jorgenson's sentencing, Wilson said he was infuriated by a jury's decision to convict Jorgenson of a lesser charge, which carried what he considered a light sentence. He said this week that the award in the civil case restored "some needed confidence in our overall justice system."

Crandall said the suit over the shooting was filed in Clark County because Jorgenson owns property there. It's unclear how much Wilson will be able to collect from Jorgenson, Crandall said. Wilson said this week that the value of Jorgenson's assets is "not even in the ballpark" of $5.8 million.

Prosecutors said Wilson and his wife discovered Jorgenson looking at some landscaping in their development on May 18, 2008. Jorgenson refused to leave and punched Wilson in the face, prosecutors said. When Wilson fought back, Jorgenson pulled a gun and began firing as Wilson tried to run away. Wilson was shot four times at a range of at least 30 feet, prosecutor's said.

Jorgenson said he acted in self-defense because Wilson was severely beating him.

Wilson said he underwent 14 surgeries over three months. Some of his fingers were permanently paralyzed, he said. A portion of his intestines were removed and, he said, he had to use a colostomy bag for about a year.

He said he is a country and classic rock musician who has toured with bands and lived in Nashville, but playing guitar is too difficult now.

"Oh my God, we're still struggling," Wilson said. "We're still trying to get back on track."

Wilson said his claim against the city of Kalama - the first step in filing a lawsuit - is aimed mainly at clearing his name.

"I just really feel strong in my heart that my family deserves an answer; my friends deserve an answer; my business associates deserve an answer," Wilson said. "If I could clear my name, I'd feel a lot better about doing business here."

He said the city gave him permission to hook up to the reservoir and that much of the water disappeared as a result of a leak. He provided to the newspaper an affidavit from Paul King, a Kalama landscape contractor, which says the city gave him unmetered access to the reservoir in August 2005 to construct the development's "entry monument."

"These construction practices are fairly routine and have been applied in the field regularly by the city of Kalama and other municipalities in the past," King said.

Wilson also provided three affidavits from Confer Road area residents saying the city of Kalama was in the neighborhood repairing a water main leak in August 2006. The city has provided no documentation of the repairs, Wilson said.

Wilson said he paid the city $1,000 to settle the question of the stolen water, largely because it would have been more expensive to pay an attorney than to drag the matter through the court system.

Sometimes, he said, "life comes at you.

The maker of an instrument used in circumcisions claimed that injury was impossible with its use, but after an infant lost a portion of his penis during an operation with the Mogen clamp, a judge awarded $10.8 million in damages against the company.

The judgment handed down Friday in New York involves an Atlanta lawyer who has been crusading against circumcision as a dangerous and unnecessary practice.

Attorney David Llewellyn won a similar case in Atlanta last year and the injury behind that prior lawsuit in Fulton County Superior Court put the New York clamp manufacturer on notice about the danger of the device, his current lawsuit said.

The baby in the current case, identified in court documents only as L.G., lost the entire glans, or head, of his penis after it was pulled into the jaws of the clamp, according to a federal magistrate's order. On Friday, U.S. District Judge Jack B. Weinstein ordered Mogen Circumcision Instruments of New York to pay $10.8 million in compensatory and punitive damages to the Florida boy, now 3, and his parents.

The parents "are extraordinarily distraught and angered that this company tells people it can't happen," Llewellyn said.

It's unclear whether they will ever collect the money. Mogen is already in default on a $7.5 million judgment in 2007 from a Massachusetts lawsuit, Llewellyn said.

The company is going out of business, according to a woman who answered the phone at its Brooklyn headquarters Monday. The woman, who said she was a secretary and would identify herself only as D. Rotter, the person whom Llewellyn said was served papers in the lawsuit. She said increased competition  has undermined their business.

"It's just kind of dwindling down to nothing," she said, adding that the phones at the Mogen office were scheduled to be disconnected Tuesday. Mogen didn't defend itself in court, and Rotter said it was because the company couldn't afford it.

She said the Mogen clamp is "painless and safe" when used properly. The case involving the Florida boy was "unfortunate," she said, adding that "any medical mishap is unfortunate."

In this case, a New York mohel, or Jewish ritual circumcisor, performed the operation in the baby's home, Llewellyn said. The mohel negotiated a separate settlement, the terms of which Llewellyn would not disclose.

Llewellyn won another circumcision case in 2009 over an operation at South Fulton Medical Center. In that case, which involved a baby identified only as D.P. Jr., the mother contended that the doctor who circumcised him removed too much tissue and that his pediatrician failed to respond when a nurse complained of excessive bleeding.

The tip of the penis was placed in a biohazard bag and might have been reattached if he'd gotten attention in time, Llewellyn said in 2009. His lawsuit in New York says D.P. Jr. lost a third of his glans.

The jury found that both the pediatrician and the physician who performed the circumcision were negligent, and awarded $2.3 million to the plaintiffs. South Fulton Medical Center was absolved of liability.

In Friday's decision, the court determined that Mogen had to pay for medical expenses and for the years of psychotherapy that will be needed. The boy suffers pain when he urinates, the court order says. He will eventually be able to have sex, but he is likely to be embarrassed and will likely have trouble forming "meaningful" relationships with girls, it adds. "At 3 years old, L.G. is aware that he looks different from other boys based on both his own observations and comments from other children which make him feel inferior ."

The Atlanta Journal-Constitution

REDWOOD CITY — Caltrans and a driver who ran her car into a Millbrae girl walking across El Camino Real were ordered to pay the now-comatose woman $12.2 million in damages, attorneys said Wednesday.

A San Mateo County jury decided Gada Hassan and Caltrans were responsible for the March 2006 collision in a crosswalk near Ludeman Lane in Millbrae that left then-17-year-old Emily Liou with permanent brain injuries, said her attorney, Douglas Saeltzer.

The settlement is to be paid in a lump sum, he added.

Caltrans said by e-mail it is considering an appeal, but made no further comment.

One of Saeltzer's primary arguments to the jury was that the crosswalk Liou used was dangerous because it sits on top of a small rise where drivers can't see pedestrians.

Three walkers have been struck and killed by cars in the same spot since 1991.

Aggravating the situation is a lack of traffic lights or stop signs to slow drivers.

The result is a crosswalk that gives pedestrians a sense of security, though there is nothing to protect them, Saeltzer said.

"Caltrans created the problem," he added. "They have not done a thing to (improve) this intersection."

Liou was walking across the road in the early evening on her way home from singing karaoke with friends.

She had made it across six of seven lanes when she was struck by a Toyota sedan.

Although the impact was at a relatively low speed — 20-25 mph

Hassan told investigators that she didn't see the girl until just before the impact, Saeltzer said. Her attorney, Jonathan Lee, declined to comment on the case.

Liou, now 21, is in China seeking treatment because medical costs are lower there.

Saeltzer said one of the themes of the four-week trial, which ended with a verdict July 1, was to bring Liou back to the United States.

"Caltrans told people that this is a safe way to cross. It's definitely not," he said.

AMENDED OPINION OF THE COURT

Joseph Elassaad appeals from an order granting summary judgment in favor of Independence Air, Inc., with respect to his negligence claim for injuries sustained when he fell while disembarking from an airplane at the Philadelphia International Airport. His appeal requires us to consider the extent to which the Federal Aviation Act (“Aviation Act”), 49 U.S.C. § 40101 et seq., preempts state law concerning tort claims arising from an air carrier's conduct in overseeing the disembarkation of passengers. Although we stated in Abdullah v. American Airlines, Inc., 181 F.3d 363, 365 (3d Cir.1999), that the Aviation Act preempts “the entire field of aviation safety” from state regulation, we hold that the “field of aviation safety” does not include a flight crew's oversight of the disembarkation of passengers once a plane has come to a complete stop at its destination. Abdullah therefore does not control the instant case. We also hold that the Aviation Act and the regulations promulgated thereunder do not preempt state tort law with respect to such negligence claims. Moreover, we conclude that the federally enacted Air Carrier Access Act (“ACAA”), 49 U.S.C. § 41705 et seq., and its implementing regulations do not control the standard of care from the standpoint of airline safety. As a result, we conclude that the standard of care in Elassaad's negligence claim is not preempted by federal law, and we will reverse the grant of summary judgment for Independence and remand for further proceedings.

I. Background

Elassaad's right leg was amputated above the knee in 1978, and he relies on a pair of crutches to walk. On February 9, 2004, he boarded a Boston-to-Philadelphia flight operated by Independence under the auspices of Delta Air Lines. The flight was on a Dornier 328, a small commuter jet, which passengers boarded from the tarmac via a 31/212-foot long flight of steps built into the door of the aircraft. After arriving at his seat without incident, Elassaad attempted to place his crutches in the overhead bin, which was not long enough to accommodate them. Adrien Lavoie, the lone flight attendant on the plane, then took the crutches and stowed them in the baggage area for the duration of the flight.

Upon landing in Philadelphia, Lavoie asked Elassaad to stay in his seat until the other passengers had deplaned. Lavoie then returned the crutches to Elassaad, who used them to approach the aircraft door. At that point, despite having boarded the aircraft by the same staircase, Elassaad noticed for the first time that the stairs were narrow.¹ The staircase had a railing on the left side, but not on the right. Though Elassaad recognized that he “needed assistance” to descend the staircase, App. 117, he chose not to request help because he believed the only aid the airline could offer would be to carry him down the stairs. Elassaad testified that he would have declined such assistance due to his perception of it as demeaning.² However, he would have accepted the assistance of a wheelchair or an electronic lift had he known that this type of assistance was available to him.³

As Elassaad began to descend the stairs, he lost his balance and fell off the right side of the staircase, striking his shoulder on the pavement. According to his complaint, this resulted in severe injuries, including torn cartilage in his shoulder that required surgical repair.

Elassaad commenced this lawsuit in the Court of Common Pleas of Philadelphia County, Pennsylvania, advancing three separate negligence claims under Pennsylvania law against Independence and Delta: that the airlines were negligent in (1) operating an aircraft made defective by design features of the aircraft steps; (2) failing to inspect and maintain the steps; and (3) failing to offer and render personal assistance to Elassaad as he disembarked from the jet. The case was removed to the United States District Court for the Eastern District of Pennsylvania on May 18, 2005, based on diversity of citizenship. Shortly thereafter, on June 14, 2005, Elassaad voluntarily dismissed Delta from the suit. Independence then moved for partial summary judgment with respect to the first claim. The District Court granted Independence's motion as unopposed. By that time, Elassaad had withdrawn his second claim, which was based on Independence's alleged failure to inspect and maintain the steps, leaving, in the words of the District Court, “the sole liability issue [as] whether [Independence] negligently failed to assist [Elassaad] in disembarking the airplane, including, without limitations, making available all appropriate safety measures and devices.” App. 3.

Independence moved for summary judgment on Elassaad's remaining claim, arguing that the controlling standard of care, dictated by federal law, obligates an airline to provide assistance only upon request, and that it is undisputed that Elassaad did not ask for assistance. Specifically, Independence argued that the regulations implementing the ACAA,⁴ which address air carriers' conduct toward the disabled, see 14 C.F.R. §§ 382.1-.70 (2004), preempt state law negligence standards. The ACAA regulations require air carriers to “provide assistance requested by or on behalf of qualified individuals with a disability, or offered by air carrier personnel and accepted by qualified individuals with a disability, in enplaning and deplaning.” 14 C.F.R. § 382.39(a) (2004).⁵ Neither the ACAA nor its regulations expressly require air carriers to offer assistance, and Elassaad made no such request for assistance. Nor do the ACAA regulations obligate carriers to inform a disabled passenger of available assistive measures unless the passenger states the need for a wheelchair. See 14 C.F.R. § 382.45(a)(2) (2004).⁶

Elassaad responded to Independence's motion for summary judgment by asserting that the ACAA and its regulations were intended only to prevent discrimination against disabled passengers, not to establish standards for the safe operation of an aircraft. He argued that air carriers could be held liable for failing to affirmatively offer assistance to disabled passengers, notwithstanding the ACAA, if that failure compromised passenger safety. Elassaad noted that the Federal Aviation Administration (“FAA”), which has the authority to establish air safety standards, has not promulgated any safety regulations describing what, if any, assistance air carriers must offer passengers when deplaning. In the absence of a controlling federal safety regulation, Elassaad argued, state negligence law governs an air carrier's duty of care in that situation, and the failure of Independence to offer him aid constituted negligence under Pennsylvania common law. Alternatively, Elassaad argued that, if the Aviation Act does control, the general standard of care set forth in 14 C.F.R. § 91.13, which prohibits carriers from operating an aircraft in a “careless or reckless manner,” imposed a duty of care on Independence to offer him deplaning assistance and that the airline consequently breached that duty when it failed to offer him such assistance.

The District Court concluded that, under our holding in Abdullah, federal law dictated the standard of care for Elassaad's negligence suit. The District Court adopted Independence's view of the applicable standard of care, as found in the ACAA regulations. The District Court concluded that the ACAA and its regulations impose no affirmative duty to offer assistance to a disabled airline passenger, and that, even if the standard under 14 C.F.R. § 91.13 applied, Elassaad had failed to “point[ ] to caselaw or expert testimony to establish that the failure of Independence to offer assistance to [Elassaad] constituted careless or reckless conduct.” App. 6-7. The District Court granted Independence's motion for summary judgment, and Elassaad filed a timely appeal.

II. Jurisdiction and Standard of Review

Independence removed the present action to federal court under 28 U.S.C. § 1441. The District Court exercised diversity jurisdiction under 28 U.S.C. § 1332. Our jurisdiction arises under 28 U.S.C. § 1291. We review de novo district court orders granting or denying summary judgment. See Levy v. Sterling Holding Co., 544 F.3d 493, 501 (3d Cir.2008). We also exercise de novo review of a preemption determination, as it is a question of law. See Horn v. Thoratec Corp., 376 F.3d 163, 166 (3d Cir.2004).

Summary judgment is proper where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Because summary judgment was entered against Elassaad, we view any disputed facts in his favor. See Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir.1995).

III. Discussion

On appeal, Elassaad challenges the District Court's determination that the ACAA and its implementing regulations preempt state negligence law with respect to an air carrier's duty to offer aid to disabled passengers when deplaning. Elassaad asserts that state negligence law governs an air carrier's duty of care under such circumstances, or in the alternative, that if our holding in Abdullah dictates that there is federal preemption, then the standard of care is the “careless or reckless” standard established by 14 C.F.R. § 91.13.

Independence argues that whether or not Abdullah applies, the ACAA and its implementing regulations “preempt state law on air carrier interaction with passengers with a disability.” Appellee's Br. at 7. Independence alternatively urges that Abdullah “remains good law, extends to boarding and disembarking, and applies in this case,” but that the level of care provided was above the “careless or reckless” standard imposed by § 91.13. Id. at 5.

We agree with Elassaad's main contention, namely, that his common law negligence claim is not preempted by federal law. We will explain our reasoning by addressing each of the arguments made by Independence on appeal. To do this, we will begin by discussing our decision in Abdullah, the scope of its holding, and why the instant case does not fall within that scope. Then we will discuss why the Aviation Act and the ACAA, and the regulations implementing those statutes, do not preempt the state law standard of care in this case. These are issues of first impression in our court, as we have not previously considered the intersection of the Aviation Act safety regulations and the ACAA regulations, or their proper applications in this context.

A.

In Abdullah, passengers aboard an American Airlines flight were injured as a result of severe turbulence en route from New York to Puerto Rico. 181 F.3d at 365. The passengers initiated two separate lawsuits in the District Court of the Virgin Islands against American Airlines, which were consolidated for trial. Id. The passengers claimed that the flight crew was negligent as a matter of Virgin Islands law both in failing to take reasonable precautions to avoid, and in failing to warn the passengers about, the turbulence. Id. After a jury in Saint Croix returned a verdict in favor of the passengers, the trial court granted American Airlines' motion for a new trial, on the ground that the court had improperly instructed the jury on the local standard of care rather than on the standard prescribed by the Aviation Act. Id. at 366.

At the passengers' request, the trial court then certified a two-part question for appeal: “Does federal law preempt the standards for air safety, but preserve State and Territorial damage remedies?” Id. at 364. We granted interlocutory review, and answered both parts of the question in the affirmative. We held that there was “implied preemption of the entire field of aviation safety,” but that “despite federal preemption of the standards of care, state and territorial damage remedies still exist for violation of those standards.” Id. at 365.

Abdullah's holding was grounded in our finding that Congress, by enacting the Aviation Act, intended “ ‘to promote safety in aviation and thereby protect the lives of persons who travel on board aircraft’ “ by resting “sole responsibility for supervising the aviation industry with the federal government.” Id. at 368 (citation omitted). This conclusion as to congressional intent was primarily supported by the Aviation Act's legislative history and its judicial interpretation in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973). We noted that the Supreme Court in City of Burbank had analyzed the Aviation Act's legislative history to reach the conclusion that “Congress's consolidation of control of aviation in one agency indicated its intent to federally preempt aviation safety.” Abdullah, 181 F.3d at 369 (citing City of Burbank, 411 U.S. at 639).

In Abdullah, we specifically found that Congress intended the Administrator of the FAA to exercise “sole discretion in regulating air safety” by vesting the Administrator with broad regulatory authority. Id. We stated that, to effectuate this authority, the Administrator “has implemented a comprehensive system of rules and regulations” to promote flight safety. Id. Based on the comprehensive regulatory system, we determined that federal law so thoroughly occupies the legislative field of aviation safety that federal law impliedly preempts state regulation in that area. Id. at 371. Our finding of field preemption notwithstanding, we held that state common law remedies were still available to the injured passengers based on the specific language of the Aviation Act's savings and insurance clauses. Id. at 375-76. We remanded proceedings to the trial court to determine whether the jury instructions based on Virgin Islands law nevertheless comported with the federal standard of care. Id. at 376.

We did not conclude in Abdullah that the passengers' common law negligence claims themselves were preempted; instead, we determined only that the standard of care used in adjudicating those claims was preempted. Local law still governed the other negligence elements (breach, causation, and damages), as well as the choice and availability of remedies. This was consistent with our prior observation, in the context of airline deregulation, that “[i]t is highly unlikely that Congress intended to deprive passengers of their common law rights to recover for death or personal injuries sustained in air crashes.” Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 194 (3d Cir.1998).

Again, Abdullah's primary holding was that federal law preempted “the entire field of aviation safety.” 181 F.3d at 365. Of critical import here is the fact that precedent is controlling only as far as it goes. Because the parties debate whether and when Abdullah applies, we will provide clarification on that issue.

B.

Courts have recognized three species of preemption: express preemption, conflict preemption, and field preemption. Express preemption requires that Congress's intent to preempt be “ ‘explicitly stated in the statute's language or implicitly contained in its structure and purpose.’ “ Cipollone v. Liggett Group, Inc ., 505 U.S. 504, 516 (1992) (citation omitted). Conflict preemption occurs when state law “actually conflicts with federal law,” such that “it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (internal quotation marks and citations omitted). Field preemption occurs when a field is “reserved for federal regulation, leaving no room for state regulation,” and “congressional intent to supersede state laws [is] clear and manifest.” Holk v. Snapple Beverage Corp., 575 F.3d 329, 336 (3d Cir.2009) (internal quotation marks and citations omitted). Both statutes and regulations can preempt state law. Id. at 339.

C.

There is no basis for finding that the Aviation Act preempts Elassaad's state law claims through express preemption or conflict preemption. To the extent that the Aviation Act preempts these claims, it must be through field preemption.

In Abdullah, we found that there was implied field preemption “of the entire field of aviation safety” as a result of the Aviation Act and its implementing regulations. 181 F.3d at 365. However, our analysis of field preemption in Abdullah-specifically, the “field” of “aviation safety”-was in the context of in-flight safety. This is clear from a careful reading of our decision. In describing our conclusion regarding preemption, we stated that “federal law establishes the applicable standards of care in the field of air safety,” and that the FAA has “sole discretion in regulating air safety. ” Id. at 367, 369 (emphases added). As examples of what we meant by the term “air safety,” we noted that a goal of the Aviation Act was to reduce “accidents in air transportation,” id. at 369 (quoting 49 U.S.C. § 44701(c)); we referred to the FAA's regulation of “pilot certification, pilot pre-flight duties, pilot flight responsibilities, and flight rules,” id. at 369 (footnotes omitted); and we described case law regarding issues “such as airspace management, flight operations, and aviation noise,” id. at 371. Accordingly, we identified the standard of care applicable in Abdullah as that supplied by 14 C.F.R. § 91.13(a), which states, with respect to “[a]ircraft operations for the purpose of air navigation,” that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” 14 C.F.R. § 91.13(a); see 181 F.3d at 372. This is, of course, consistent with the facts of Abdullah, in which plaintiffs brought suit based on injuries sustained while the aircraft was in the air, transporting passengers from New York to Puerto Rico. 181 F .3d at 366.

Our discussion of the regulatory framework giving rise to preemption in Abdullah focused exclusively on safety while a plane is in the air, flying between its origin and destination. Our use of the term “aviation safety” in Abdullah to describe the field preempted by federal law was thus limited to in-air safety. The supervision of the disembarkation process by a flight crew therefore falls outside the bounds of what we were considering in Abdullah.⁷

As we have not opined as to the preemptive effect of federal law in this context, we must do so here. Accordingly, we will consider an issue presented to us for the first time: whether the Aviation Act, the ACAA, and their implementing regulations preempt state tort law with respect to accidents that occur when a passenger is disembarking a plane.

D.

When considering preemption of an area of traditional state regulation, we “begin our analysis by applying a presumption against preemption.” Holk, 575 F.3d at 334 (citations omitted).⁸ It is beyond dispute that it has traditionally been the province of state law to govern disputes in cases where a plaintiff alleges that he fell as a result of the defendant's negligence. Moreover, as we recognized in Taj Mahal, Inc. v. Delta Airlines, Inc., 164 F.3d 186 (3d Cir.1998), it is appropriate to use a restrained approach in recognizing the preemption of common law torts in the field of aviation. Although Taj Mahal focused on the impact of the Airline Deregulation Act, we reasoned that preemption of tort law in aviation should be constrained in part because “the Department of Transportation has neither the authority nor the apparatus required to superintend” tort disputes. 164 F.3d at 194.

In addition, as Justice Stevens has stated, “ ‘Congress did not intend to give airlines free rein to commit negligent acts subject only to the supervision of the Department of Transportation, any more than it meant to allow airlines to breach contracts with impunity,” because “the standard of ordinary care, like contract principles, ‘is a general background rule against which all individuals order their affairs.’ “ Id. at 192 (quoting Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 236-37 (1995) (Stevens, J., concurring in part and dissenting in part)). Even though Taj Mahal addressed a different statute than the federal laws at issue in this case, we adhere to its conservative approach today.

As noted above, to find field preemption, we must find that federal law “leav [es] no room for state regulation” and that Congress had a “clear and manifest” intent to supersede state law. Holk, 575 F.3d at 336 (internal quotation marks and citations omitted). In undertaking this inquiry, we consider the language and goals of the applicable statute and regulations, as well as any explicit statements by Congress or an agency regarding preemption. Id. at 336-39.

When the Aviation Act was enacted in 1958, it, among other things, created the FAA, gave the government authority to review airfares, instituted a system for registering and certifying aircraft, and set safety standards for air carriers and aircraft. See Federal Aviation Act of 1958, Pub.L. No. 85-726, 72 Stat. 731. Only the portions of the Aviation Act relating to safety are relevant here. In their current form, the statute's safety-related provisions set forth standards for certifying pilots, flight attendants, air carriers, airports, and other facilities, see 49 U.S.C. §§ 44702-44711, 44728, and require the FAA to regulate such issues as collision avoidance systems, aircraft inspections, and “aircraft operations during winter conditions,” see §§ 44713, 44716, 44717, 44722. The statute also directs the FAA to issue regulations in keeping with two safety-related goals: the “reduc[tion] or eliminat[ion][of] the possibility or recurrence of accidents in air transportation,” and the “promot[ion][of] safe flight of civil aircraft,” such as by prescribing standards for the construction and maintenance of aircraft, “the reserve supply of fuel and oil carried in flight,” and “the maximum hours or periods of service of airmen and other employees of air carriers.” § 44701(c), (a). Nothing in the statute pertains to safety during disembarkation; rather, the statute's safety provisions appear to be principally concerned with safety in connection with operations associated with flight. Indeed, as we noted in Abdullah, Congress enacted the Aviation Act to “protect the lives of persons who travel on board aircraft.” 181 F.3d at 368 (internal quotation marks and citation omitted).

It is not surprising, then, that most of the regulations adopted pursuant to the Aviation Act concern aspects of safety that are associated with flight. For example, the regulations detail certification and “airworthiness” requirements for aircraft parts.⁹ They include flight rules familiar to air travelers, such as those requiring the use of seatbelts, restricting the use of electronic devices, regulating where carry-on baggage can be stored, and requiring the stowage of food and beverage equipment during taxiing, takeoff, and landing.¹⁰ They also set qualifications for pilots, flight attendants, and air traffic control operators,¹¹ and regulate the conduct of crew members during flight.¹² Similarly, the regulations impose restrictions on an aircraft's speed, altitude, communications, and flight path.¹³ We note that the regulations under the Aviation Act do not specifically regulate the conduct of the crew in connection with the loading or unloading of passengers. The primary purpose of these regulations appears to be the prevention of accidents, and the assurance of passenger safety, in connection with flight.

The regulations also contain a broader standard in 14 C.F.R. § 91 .13, which we identified in Abdullah as “provid[ing] a general description of the standard required for the safe operation of aircraft” even “where there is no specific provision or regulation governing air safety.” 181 F.3d at 371. That regulation contains two paragraphs. Section 91.13(a) applies when an aircraft is being operated “for the purpose of air navigation”; section 91.13(b) applies when an aircraft is being operated “other than for the purpose of air navigation.”

Section 91.13(a) provides as follows: “Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” Independence contends that the aircraft was being “operat[ed] for the purpose of air navigation” within the meaning of this regulation. We are not so sure.

In order to interpret the phrase “operations for the purpose of air navigation” as used by § 91.13(a), we begin by considering the definitions provided by the regulations themselves. The general definitions section of the regulations defines “operate” to mean “use, cause to use or authorize to use aircraft, for the purpose (except as provided in [§ 91.13] ) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise).” 14 C.F.R. § 1.1. As that definition indicates, the meaning of “operate” is derived in part from § 91.13. Since § 91.13(a), like the general definition of “operate,” refers to “operations for the purpose of air navigation,” the reference to § 91.13 appears to mean § 91.13(b), which we will discuss below.

The definitions provided by the Aviation Act also help to elucidate the meaning of § 91.13(a). The statute defines “ ‘operate aircraft’ and ‘operation of aircraft’ [to] mean using aircraft for the purposes of air navigation, including-(A) the navigation of aircraft; and (B) causing or authorizing the operation of aircraft with or without the right of legal control of the aircraft.” 49 U.S.C. § 40102(a)(35). Although the statute does not define “air navigation,” it does define two related terms: “navigate aircraft” and “air navigation facility.” “ ‘[N]avigate aircraft’ and ‘navigation of aircraft’ include piloting aircraft.” § 40102(a)(33). “ ‘[A]ir navigation facility’․ includ[es]-(A) a landing area; (B) a light; (C) apparatus or equipment for distributing weather information, signaling, radio-directional finding, or radio or other electromagnetic communication; and (D) another structure or mechanism for guiding or controlling flight in the air or the landing and takeoff of aircraft .” § 40102(a)(4).

In light of these definitions, we conclude that the aircraft was not being operated for the purpose of air navigation at the time of Elassaad's accident, and thus that the standard of care provided by § 91.13(a) did not apply to this situation. By the time of the accident, the aircraft had landed, taxied to the gate, and come to a complete stop; the crew had already opened the door and lowered the plane's stairs; and all of the passengers other than Elassaad had deplaned. As discussed above, the statutory and regulatory definitions of “operate” state that a plane is only being operated, within the meaning of § 91.13(a), when it is being “use[d]” for “navigation,” and the Aviation Act's definitions of “navigate aircraft” and “air navigation facility” demonstrate that the term “navigation” principally applies to the takeoff and landing of an aircraft, and the “piloting” that occurs during the flight. These definitions contemplate a flight crew's interaction with an aircraft and with passengers who are on the aircraft. By contrast, we conclude that a flight crew's oversight of the disembarkation of passengers-after a plane has finished taxiing to the gate, and its crew has opened the aircraft's door and lowered its stairs-does not constitute “operations for the purpose of air navigation.”¹⁴

We also conclude that the aircraft was not being operated “other than for the purpose of air navigation” as envisioned by 14 C.F.R. § 91.13(b). Both parties concede this, and we agree. That portion of the regulation provides as follows:

Aircraft operations other than for the purpose of air navigation. No person may operate an aircraft, other than for the purpose of air navigation, on any part of the surface of an airport used by aircraft for air commerce (including areas used by those aircraft for receiving or discharging persons or cargo), in a careless or reckless manner so as to endanger the life or property of another.

§ 91.13(b). The comments made by the FAA in conjunction with the issuance of this regulation¹⁵ help to clarify its meaning. The agency explained that the term “ ‘operate an aircraft other than for the purpose of air navigation’ ․ is employed in this rule in order to clearly limit the applicability of the rule to those acts which impart some physical movement to the aircraft, or involve the manipulation of the controls of the aircraft such as starting or running an aircraft engine.” Careless or Reckless Ground Operation of Aircraft, 32 Fed.Reg. 9640, 9640-41 (July 4, 1967) (emphasis added). There is no evidence that, by watching Elassaad exit the plane, the flight crew was engaging in any acts that “impart[ed] some physical movement to the aircraft, or involve[d] the manipulation of the controls of the aircraft.” Id. As noted above, not only had the aircraft come to a complete stop, but the aircraft's door had been opened, its stairs had been lowered, and most of the passengers had already disembarked. The crew's conduct with respect to Elassaad's disembarkation therefore did not constitute “operations” for any purpose under § 91.13.

The statutory and regulatory framework of the Aviation Act thus provides no evidence of any intent-much less a “clear and manifest” intent-to regulate safety during disembarkation. In Abdullah, we concluded that, given the overwhelming number of relevant Aviation Act safety regulations, the Aviation Act preempted the field of aviation safety. Here, there is no indication that either Congress or the FAA intended that federal law would impose a legal duty in an area that is neither specifically regulated by federal law nor clearly governed by a general federal standard of care: the assistance provided to passengers during their disembarkation. Accordingly, we conclude that the Aviation Act and its safety regulations do not preempt state law standards of care in this negligence action.

E.

After the District Court found federal preemption based on Abdullah, it looked to the ACAA regulations for the applicable standard of care. On appeal, Independence goes further than the District Court, and argues that, as a matter of both field preemption and conflict preemption, the ACAA independently preempts Elassaad's negligence claim. We reject these arguments.

Congress passed the ACAA in 1986 as an amendment to the Aviation Act. See Pub.L. No. 99-435 § 2(a), 100 Stat. 1080 (1986). The statute was intended to close a gap in antidiscrimination law that was made apparent by the Supreme Court's decision in Department of Transportation v. Paralyzed Veterans of America, 477 U.S. 597, 610-12 (1986), in which the Court held that, despite receiving federal funding, air carriers were not subject to certain provisions of the Rehabilitation Act, 29 U.S.C. § 794. The ACAA was designed to address and prohibit airline discrimination based on disabilities, and directed the FAA to issue regulations “to ensure nondiscriminatory treatment of qualified handicapped individuals consistent with safe carriage of all passengers on air carriers.” § 3, 100 Stat. at 1080; see also 49 U.S.C. § 41705(a). More than just prohibiting overtly discriminatory conduct, these regulations “are aimed at ensuring that services, facilities, and other accommodations are provided to passengers with disabilities in a respectful and helpful manner.” Nondiscrimination on the Basis of Disability in Air Travel, 70 Fed.Reg. 41,482, 41,504 (July 19, 2005).¹⁶ Despite the statute's reference to the “safe carriage of all passengers,” the ACAA regulations do not displace Aviation Act safety regulations. See 14 C.F.R. § 382.3(d) (2004) (“Nothing in this part shall authorize or require a carrier to fail to comply with any applicable FAA safety regulation.”).¹⁷

It is clear that the ACAA is aimed at ensuring respect and equal treatment for disabled airline passengers. But Elassaad did not claim that Independence violated any of its obligations under the ACAA,¹⁸ nor did he even suggest that discrimination played any role in its conduct toward him. Instead, Elassaad alleged in his complaint that Independence was negligent, inter alia, in failing to provide both “a means for Plaintiff to safely exit the plane given his physical condition and need to use crutches” and “personal assistance to help Plaintiff go down the steps.” App. 16-17. Independence contends that these claims are preempted by the ACAA.

In light of the purposes of the ACAA and its implementing regulations, we are not persuaded that they preempt state law through either field preemption or conflict preemption. Independence contends that the ACAA preempts the field of “air carrier interaction with disabled persons.” Appellee's Br. at 16. However, the ACAA is clearly directed at nondiscrimination, and we are not persuaded that Congress intended the ACAA to preempt any state regulation of the interaction between an air carrier and disabled passengers (or disabled persons in general). At most, the ACAA might preempt state nondiscrimination laws as they apply to discrimination by air carriers against disabled passengers. See Nondiscrimination on the Basis of Handicap in Air Travel, 55 Fed.Reg. 8008, 8014 (Mar. 6, 1990) (“[The ACAA] is a detailed, comprehensive, national regulation, based on Federal statute, that substantially, if not completely, occupies the field of nondiscrimination on the basis of handicap in air travel ․ [I]nterested parties should be on notice that there is a strong likelihood that state action on matters covered by this rule will be regarded as preempted.” (emphasis added)). State nondiscrimination laws, however, are not at issue in this case. We can find no evidence of a “clear and manifest” congressional intent to supersede any relevant state tort law or to “leav[e] no room for state regulation” in this area, and we thus cannot conclude that field preemption applies here. Holk, 575 F.3d at 336.

Nor do we believe that there is conflict preemption here. When conflict preemption applies, it is because state and federal requirements are diametrically opposed so as to frustrate each others' goals. In Fidelity Federal Savings and Loan, for instance, a federal regulation allowed savings and loans to enforce “due-on-sale” clauses, but state law prohibited enforcement of such clauses. Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 155 (1982). In Geier, a federal regulation sought a “variety and mix” of safety devices in cars, but a state law required the use of just one safety device. Geier v. Am. Honda Motor Co., 529 U.S. 861, 881 (2000). In Umland, there was a “comprehensive administrative scheme” under federal law for employees to challenge their classifications as independent contractors, but this scheme would have been undermined by a state law cause of action based on the same claim. Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64-65 (3d Cir.2008).

The present case is quite different. The ACAA was intended to ensure nondiscriminatory treatment of airline passengers. If it is true, as Elassaad contends, that the standard of care supplied by state law required Independence to assist him with his disembarkation and to provide a means for him to safely exit the aircraft,¹⁹ those duties could easily coexist with the ACAA's mandate that Independence not discriminate against him. Independence urges that a goal of the ACAA was to protect “the dignity of disabled passengers,” and that this objective would be frustrated by the state law duties cited by Elassaad. Appellee's Br. at 12. Independence relies on three sources of authority for this argument: Department of Transportation guidance stating that carriers should “[o]ffer assistance only if the passenger appears to need help” (in order to “ensur[e] that services ․ are provided ․ in a respectful and helpful manner”), 70 Fed.Reg. at 41,504; a regulation prohibiting carriers from “[r]equir[ing] an individual with a disability to accept special services ․ not requested by the passenger,” 14 C.F.R. § 382.7(a)(2) (2004); and a regulation requiring carriers to “provide assistance requested by or on behalf of qualified individuals with a disability, or offered by air carrier personnel and accepted by qualified individuals with a disability, in enplaning and deplaning,” 14 C.F.R. § 382.39(a) (2004). These authorities, respectively, encourage carriers not to offer assistance when it is obvious that none is required; forbid carriers to insist that disabled passengers accept unwanted assistance; and require carriers to assist passengers who do request or accept such assistance. These mandates do not prohibit air carriers from offering unsolicited assistance to disabled passengers when the situation warrants it, and they do not evince a congressional intent that air carriers should withhold assistance from disabled passengers when doing so would be negligent or reckless under state law. In any event, we are not persuaded that compliance with duties imposed by state law would require air carriers to act in a manner that would undermine the dignity of disabled passengers. Thus, there is no basis for us to find either that it would have been “impossible” for Independence to comply with both state law and the ACAA, or that state law would have been an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” English, 496 U.S. at 79 (internal quotation marks and citations omitted).²⁰

IV. Conclusion

For the reasons given above, we conclude that Elassaad's case is governed by state law negligence principles and, since the District Court measured Elassaad's claim according to a different standard, we will vacate the District Court's order and remand for further proceedings consistent with this opinion.

FOOTNOTES

1.  At his deposition, Elassaad estimated that the steps were between eleven and thirteen inches wide, and he explained that he had not previously taken note of their narrowness because descending stairs using crutches is more difficult than ascending them. He stated that he was apprehensive of falling because the stairs were narrow and he sometimes has difficulty maintaining his balance on tight staircases.

2.  According to the relevant ACAA-implementing regulation, airline personnel would not have been permitted to carry Elassaad down the stairs unless there was an emergency. See 14 C.F.R. § 382.39(a)(2) (2004). The Department of Transportation revised the regulations implementing the ACAA on May 13, 2008, after Elassaad's accident. See Nondiscrimination on the Basis of Disability in Air Travel, 73 Fed.Reg. 27,614 (May 13, 2008). All references to and quotations of those regulations in the body of this opinion are based on the pre-amendment text, which was in effect at all times relevant to this case. The current prohibition on carrying a passenger appears at 14 C.F.R. § 382.101 (2009).

3.  During his deposition, Lavoie stated that he had told Elassaad about the availability of a wheelchair (though Elassaad denies this), but not about the availability of an electronic lift or a “straight back.” A “straight back” is similar in form to a hand truck.

4.  When referring to the ACAA-implementing regulations hereafter, we will simply say “the ACAA regulations.”

5.  The provisions of § 382.39(a) that are pertinent to this case currently appear in 14 C.F.R. § 382.95(a) (2009), and impose requirements that are substantively identical to the former § 382.39(a).

6.  That obligation currently appears in 14 C.F.R. § 382.41(c) (2009).

7.  The parties argue at length about whether our holding in Abdullah survives the Supreme Court's decision in Wyeth v. Levine, 129 S.Ct. 1187 (2009). Because Abdullah does not apply to the facts of this case, we make no comment regarding what effect, if any, Wyeth has on Abdullah's continued vitality.

8.  As the Supreme Court has recently stated, a cornerstone of its preemption jurisprudence is “the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth, 129 S.Ct. at 1194-95 (internal quotation marks and citation omitted).

9.  See, e.g., 14 C.F.R. § 21.127(a) (“Each person manufacturing aircraft ․ shall establish an approved production flight test procedure and ․ flight test each aircraft produced.”); 14 C.F.R. §§ 23.21-.29 (governing weight limits within which aircraft may be safely operated); 14 C.F.R. § 23 .51 (governing takeoff speeds).

10.  See 14 C.F.R. § 91.107 (seatbelts); 14 C.F.R. §§ 91.21 and 135.144 (electronic devices); 14 C.F.R. §§ 91.523, .525 (carry-on baggage); 14 C.F.R. § 91.535 (food and beverage equipment).

11.  See, e.g., 14 C.F.R. § 61.159 (“[A] person who is applying for an airline transport pilot certificate with an airplane category and class rating must have at least 1,500 hours of total time as a pilot․”); 14 C.F.R. § 65.33 (governing general eligibility requirements for air traffic controllers); 14 C.F.R. § 91.533(b) (“No person may serve as a flight attendant on an airplane ․ unless that person has demonstrated to the pilot in command familiarity with the necessary functions to be performed in an emergency or a situation requiring emergency evacuation and is capable of using the emergency equipment installed on that airplane.”).

12.  See, e.g., 14 C.F.R. § 91.15 (“No pilot in command of a civil aircraft may allow any object to be dropped from that aircraft in flight that creates a hazard to persons or property.”); 14 C.F.R. § 91.17(a)(2) (“No person may act or attempt to act as a crewmember of a civil aircraft-While under the influence of alcohol․”); 14 C.F.R. § 135.100(b) (“No flight crewmember may engage in, nor may any pilot in command permit, any activity during a critical phase of flight which could distract any flight crewmember from the performance of his or her duties or which could interfere in any way with the proper conduct of those duties.”).

13.  See, e.g., 14 C.F.R. § 91.117(a) (“[N]o person may operate an aircraft ․ at an indicated airspeed of more than 250 knots (288 m.p.h.).”); 14 C.F.R. § 91.119 (setting minimum altitudes for various situations); 14 C.F.R. §§ 91.126, .127, .129, .130, .131, and .135 (prescribing requirements for communications with air traffic control towers); 14 C.F.R. § 91.145 (describing temporary flight restrictions that may be imposed “to prevent the unsafe congestion of aircraft in the vicinity of an aerial demonstration or major sporting event”).

14.  We do not reach the issue of whether other activities that occur while a plane is on the ground, such as taxiing or the process of opening an aircraft's doors, would constitute “operations” such that they would be subject to federal preemption.

15.  At the time, § 91.13(b) was known as 14 C.F.R. § 91.10. The regulation was later renumbered, without any textual revisions, in 1989. See Revision of General Operating and Flight Rules, 54 Fed.Reg. 34,284, 34,289 (Aug. 18, 1989).

16.  The FAA goes so far as to advise air carriers on the proper content of, and tone used in, communications with disabled passengers. See 70 Fed.Reg. 41,504 (“Emotions matter․ When acknowledging the emotions of others, it may be more effective to use ‘you’ rather than ‘I.’ For example, use, ‘You must be frustrated

In December 2002, a car accident paralyzed a foster care child, I .H. A jury found that his foster father's negligent driving caused I.H.'s injury. The single issue before us in this tragic case is whether a private foster care agency can be vicariously liable for the ordinary negligence of a foster parent. The District Court held no, and granted the foster care agency's motion for summary judgment on this issue. We affirm.

I. Facts

In November 1998, a court determined I.H., then three years old, was a “dependent child.” As a result, Lehigh County took legal and physical custody of him.

With the Lutheran Home at Topton's assistance, Lehigh County placed I.H. with foster parents, Peter and Atlanta Norton.¹ The County had contracted with the Home to aid with foster child placement and related supervision. The Contract of Service (the “Service Contract”) between the parties imposed several obligations on the Home, including:

supervising each foster child's placement; submitting to the County individual service plans, progress reports, discharge summaries, and other written reports required by the County or regulations pertaining to each foster child; submitting to the County medical, dental[,] and educational information; and providing notification to the County if it proposes changing a foster child's placement from one foster home to another.

In exchange for providing these services, the Home received a daily fee of $43.75 for each child under its supervision. In turn, it paid its foster parents $17.00 per day.

Prior to I.H.'s placement, the Home entered into a Foster Care Placement Contract of Agreement (the “Placement Agreement”) with the Nortons. In it, the Nortons promised “to receive a foster child [into their home] ․ and to be responsible to meet [his] physical, social[,] and emotional needs.” It also contained baseline requirements intended to guide I.H.'s care. Many of these provisions incorporated specific items from the Service Contract (including various state regulations). However, the Placement Agreement included additional requirements imposed by the Home itself. The Nortons also received a Foster Care Handbook (the “Handbook”), which outlined the family's obligations in greater detail. In the end, the parties agreed that “it is the responsibility of the Home and foster family to work together on behalf of [I.H.]” Importantly, both the Home and the Nortons had the power to terminate the Placement Agreement with reasonable notice.

At various times the Home was quite active in supervising I.H.'s care. For instance, shortly after I.H.'s placement, the Home received reports that the Nortons were using inappropriate methods to discipline and toilet train him. These methods violated the Nortons' obligations under their Placement Agreement, as well as related Pennsylvania law.² In response, the Home met with the Nortons and counseled them on proper disciplinary methods.

A few months later, I.H. and his foster brothers were swimming in the Nortons' pool. They had just returned home from a party. While unsupervised, I.H. nearly drowned. Mr. Norton pulled the child from the pool, and Mrs. Norton administered life-saving CPR. As a result of this incident, the County and I.H.'s court-appointed guardian instructed the Home to increase the frequency of its in-house visits with the foster family. They also directed the Home to provide additional training to the Nortons and use their supervisory authority to intervene further, as needed.

In December 2002, Mr. Norton was bringing I.H. home from daycare. During that trip, Mr. Norton was momentarily distracted when I.H. bit Thomas (Mr. Norton's son) on the arm. Mr. Norton glanced in his rearview mirror to see what was happening and to reprimand the boys. With this distraction, he crossed the center line of the road and hit an oncoming car. Thomas was killed, and Mr. Norton was severely injured. I.H. was rendered paraplegic.

II. Procedural History

In August 2004, I.H., through his guardian ad litem, filed an action against Mr. Norton, Lehigh County, and the Home to recover for his injuries. I.H. brought the following claims in his initial Complaint: 1) ordinary negligence against Norton; 2) constitutional violations against Lehigh County for alleged deliberate indifference; and 3) direct liability against the Home for negligent placement and supervision. Even an Amended Complaint did not allege that the Home was vicariously liable for Norton's negligence, but I.H.'s later summary judgment motion referred to it.³

In March 2006, I.H. filed a Motion for Partial Summary Judgment. The District Court denied his motion on the ground that genuine issues of material fact existed as to whether Norton was negligent. In October 2006, the Home and Lehigh County filed motions for Partial Summary Judgment. The District Court granted both motions. In its opinion, the Court addressed the merits of I.H.'s vicarious liability claim, concluding that it “fails as a matter of law because the requisite master-servant relationship does not exist between the Home and Peter Norton.” The Court reasoned that most of the rules imposed on Norton in the Placement Agreement and the Handbook were the product of state regulations. It added that this setting of state-mandated standards and goals addressed the results of the work and not the manner in which it was conducted, leaving the Nortons free to make the same decisions for I.H. that they would make for their own children on a daily basis. (The Court further held that the Home's actions were not the proximate cause of I.H.'s injuries. Thus, it was not directly liable for them, either.)

In March 2007, I.H. filed a motion requesting that the District Court certify its decision for immediate appeal. Specifically, I.H. sought review of the Court's determination that there were no genuine issues of material fact with respect to the existence of a master-servant relationship between the Home and Norton. After initially denying this request, the Court sua sponte vacated its decision and certified this matter for appeal. We denied the request.

I.H.'s claim against Norton continued to trial. The jury returned a unanimous verdict, finding Norton negligent and awarding $28,750,000 in damages. After entry of a final judgment, I.H. appealed the District Court's summary judgment order from February 2007. I.H. limited his appeal to the Court's dismissal of his vicarious liability claim against the Home.

III. Jurisdiction and Standard of Review

The District Court had jurisdiction to hear this case under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

The standard of review for a grant of summary judgment is “plenary.” Michael v. Shiley, Inc., 46 F.3d 1316, 1321 (3d Cir.1995). When considering a grant of summary judgment, we employ the same legal standard as the District Court. Kelly v. TYK Refractories Co., 860 F.2d 1188, 1192 (3d Cir.1988). Summary judgment is only proper where, when viewing the record in the light most favorable to the non-moving party, “there is no genuine issue as to any material fact and ․ the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).⁴

IV. Analysis

To repeat, the single issue before us is whether a private foster care agency can be vicariously liable for a foster parent's act of ordinary negligence. Although this is an issue of first impression under Pennsylvania law,⁵ our conclusion is dictated by well-established legal principles.

A. The “Master-Servant” Relationship and the “Right of Control” Test

In Pennsylvania, only a “master-servant” relationship “gives rise to vicarious liability for negligence.” Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476, 481 (Pa.1970). “As a general rule, a master may be held liable for the acts of the servant when those acts are committed during the course of his employment and within the scope of his authority.” Valles v. Albert Einstein Med. Ctr., 569 Pa. 542, 805 A.2d 1232, 1237 (Pa.2002). The rationale for this rule is simple: “[B]ecause a master has the right to exercise control over the physical activities of the servant within the time of service, he is vicariously liable for the servant's negligent acts committed within the scope of his employment.” Smalich, 269 A.2d at 481 (emphasis in original).

In a master-servant relationship, “a master not only controls the results of the work but also may direct the manner in which such work shall be done.” Id.; see also Universal Am-Can, Ltd. v. Workers' Comp. Appeal Bd., 563 Pa. 480, 762 A.2d 328, 333 (Pa.2000) (“[C]ontrol over the work to be completed and the manner in which it is to be performed are the primary factors in determining employee status.”).⁶ “[A] servant, in rendering the agreed services, remains entirely under the control and direction of the master.” Smalich, 269 A.2d at 481. When determining whether a master-servant relationship exists, “[a]ctual control of the manner of work is not essential; rather, it is the right to control which is determinative.” Drexel v. Union Prescription Ctrs., Inc., 582 F.2d 781, 785 (3d Cir.1978).

Under this “right of control” test, “[t]he control of the principal does not ․ include control at every moment; its exercise may be very attenuated and, as where the principal is physically absent, may be ineffective.” Smalich, 269 A.2d at 481 (internal quotation marks and citation omitted). Although this passage might suggest a lenient “right of control” test, the right to exercise day-to-day control remains an important factor in the master-servant inquiry. See, e.g., Smith v. Exxon Corp., 436 Pa.Super. 221, 647 A.2d 577, 583 (Pa.Super.Ct.1994); Myszkowski v. Penn Stroud Hotel, Inc., 430 Pa.Super. 315, 634 A.2d 622, 626 (Pa.Super.1993); Burnatoski v. Butler Ambulance Serv. Co., 130 Pa.Cmwlth. 264, 567 A.2d 1121, 1124 (Pa.Commw.Ct.1989). The party seeking vicarious liability bears the burden of proving a master-servant relationship. See Basile v. H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115, 1120 (Pa.2000).

B. Applying the “Right of Control” Test

In this context, the dispute between the parties focuses on the scope of control that the Home could exercise over Norton-not the level of control that the Home actually exercised during I.H.'s placement. I.H. argues that, because Norton was in the act of caring for him at the time of the accident, the Home should be held vicariously liable for any injuries caused by Norton's conduct. Under this far-reaching theory, a private foster care agency's liability would extend to all acts of ordinary negligence committed by a foster parent in the provision of foster care-which is defined by relevant regulations as a “[t]wenty-four hour” commitment. 55 Pa.Code § 3700.4.⁷

Such a theory would impose a considerable financial burden on the Pennsylvania foster care system.⁸ More importantly, it is also contrary to established Pennsylvania law. In reaching this conclusion, we first consider the terms of the Service Contract between Lehigh County and the Home. From there, we analyze the Placement Agreement between the Home and Norton. Throughout, we consider these agreements in light of the regulatory scheme enacted by the Commonwealth, as well as related Pennsylvania caselaw.

1. The Service Contract

I.H. stakes much of his argument on a single passage from the “Independent Contractor” provision of the Service Contract. In relevant part, this provision states that the Home “is deemed an Independent Contractor and shall not during the term of this contract assign, subcontract, transfer, or otherwise delegate all or part of its obligations or responsibilities without prior written approval of [Lehigh County].” From this, I.H. argues that the Home had a non-delegable duty to exercise all control necessary to ensure his safety. On this reading, the Home committed itself to providing more than initial placement and ongoing monitoring of established goals; it also must exercise additional control over the manner of its foster parents' care (on a daily basis, if necessary). According to I.H., it is thus no argument that the Home did not exercise this control, including when supervising I.H.'s care by the Nortons. The Home had the duty to exercise whatever level of control was necessary to keep I.H. safe.⁹

Scattered provisions of the Service Contract strengthen this reading. For instance, the “Purpose of [the] Contract” between the Home and Lehigh County was defined (quite broadly) as “Residential/Foster Care,” while the Home elsewhere agreed to provide “Foster Care ․ Services.” Furthermore, the Home promised to “promote [each] child's growth and development by providing the physical care, nurturance[,] and opportunity [necessary] for individual, social, emotional[,] and intellectual development.” Finally, the Home agreed to accomplish these goals by: 1) “provid[ing] a temporary living environment in the form of foster family care”; 2) “retain[ing] responsibility of [I.H.'s] physical custody” throughout his placement; and 3) “actively participat[ing] in the delivery of [related foster care] services.”

Given these provisions, I.H. concludes that the Home was charged with running a “foster care” program, with non-delegable responsibilities that extended beyond mere placement and supervision to additional control over the manner in which the Nortons cared for I.H. on a daily basis. These textual arguments, simple and supportive, nonetheless fall short.

First, I.H. reads too much into the “Independent Contractor” provision. Recourse to it merely begs the key question on appeal. It provides that the Home “shall not ․ delegate all or part of its obligations or responsibilities without prior written approval.” This provision says little about what those “obligations” and “responsibilities” are. As the Illinois Supreme Court recently noted in a similar context, “whatever duty there is to provide placement, to institute procedures, or even to exercise general authority over foster children[,] is not the same as a continuing, nondelegable duty to provide for the care of children placed in foster homes.” Nichol v. Stass, 192 Ill.2d 233, 248 Ill.Dec. 931, 735 N.E.2d 582, 589 (Ill.2000).

Furthermore, many of the provisions that I.H. cites apply equally to a Service Contract providing for foster care placement and ongoing monitoring rather than one including additional responsibilities for directing the manner of care the foster parents need to provide on a daily basis. For instance, the Home's purported duty to “provide a temporary living environment in the form of foster family care” can be met through placement services. The same is true of the Home's obligation to “promote a child's growth and development by providing the physical care, nurturance[,] and opportunity [necessary] for individual, social, emotional, and intellectual development.” And while the Home agreed to “actively participate in the delivery of services,” this need not extend to all (or even most) of the Nortons' day-to-day parenting decisions. Indeed, this passage itself is part of a larger paragraph on the role of caseworkers in “monitor[ing]” foster families.

The Home's level of control is further clarified by the following passage, which was part of a program description incorporated into the Service Contract by the parties: “The Lutheran Home strives to provide the most stable and caring environment for children. Proper recruitment and training of foster parents, careful matching of children and families, and viable accessible supports for foster parents and foster children are in place in order to avoid multiple placements.” J.A. 517 (emphasis added). In this passage, the Home defined its key duties as foster family recruitment, foster child placement, and ongoing supervision.

Other passages in the program description also aid this account of the Home's responsibilities. Among them, the Home pledged “to provide supportive services to [its] foster families,” which were intended to “under-gird the foster parents' effectiveness in providing a stable, nurturing environment for the foster children in their care.” In addition, the Home put in place a referral procedure for processing requests from Lehigh County: “A referral for foster care placement can be made by the county by contacting the foster care supervisor. A verbal description of [a] child's [characteristics] ․ [is] necessary in order to provide the most appropriate foster family setting.” Importantly, “[a]cceptance of the referral is contingent upon whether a suitable match can be made between the child and a foster family and the availability of an opening.” Therefore, if a “suitable match” with a family were not made, the Home would not accept a referral from Lehigh County.¹⁰

Moreover, within the Home's program approved foster families agree to “provide room/board, basic physical care, health care, and supervision,” as well as provide for the child's “developmental needs.” In this role, foster parents must “participate in the development of the [child's] [i]ndividual [s]ervice [p]lan” and “facilitate many of the objectives outlined in the plan.”

Related regulations provide further support for this account. Pennsylvania law defines a “foster family care agency” as “[a] public or private agency which recruits, approves, supervises[,] and places children with foster families.” See 55 Pa.Code § 3700.4. In this capacity, it is a stand-in for the county, which would typically be responsible for these tasks. At the same time, a foster family is defined as “[t]he living unit, including the foster family residence and foster parent, approved by a foster family care agency to provide foster family care to children.” Id. Similarly, a foster parent is defined as “[a]n individual responsible for providing foster family care to children placed by a[ ] [foster family care agency].” Id. Within this scheme, foster families are tasked with “[p]rovid[ing] temporary, substitute care” for each “child in need.” Id. at § 3130.5.

In addition, the Service Contract itself suggests that it should be read in light of these regulatory goals, as the Contract's “Interpretation” provision provides that it is “the intention of the [parties] that the public health, safety[,] and welfare be protected and furthered by the [C] ontract. Therefore, this [C]ontract is to be interpreted in such manner as to favor such public interest as opposed to any private interest.” As the Home's counsel explained at oral argument, “The [service] contracts are written in light of [related] code provisions.” Oral Arg. Tr. 24. Analyzing the Service Contract in light of related regulations, the Home argues that its duty is to provide “foster care indirectly through a foster family” and “assist the county in placing children in foster families.” Id. at 25, 26, 248 Ill.Dec. 931, 735 N.E.2d 582. The Pennsylvania Children and Youth Administrators Association (“PCYAA”) similarly explained, “Private foster care agencies cannot and do not supervise and control the day-to-day ․ care that a foster parent provides a foster child. Foster care agencies do not have the power or authority to exercise this type of control over foster parents.” PCYAA's Br. 10-11. These accounts are consistent with the role of a “foster family care agency” as defined by Pennsylvania's regulatory scheme.

Taken together, these passages suggest that the Home's duties extended only to initial placement and ongoing supervision of established goals, not to the manner in which the Nortons chose to achieve each of these goals. Therefore, the Service Contract, standing alone, is insufficient to establish a master-servant relationship. Yet this does not end the master-servant inquiry. It is still possible that the Home's related supervisory responsibilities give rise to a master-servant relationship. To that end, we turn to the Placement Agreement and accompanying Handbook.

2. The Placement Agreement and the Handbook

Under the Placement Agreement and the Handbook, the Home had the right to control many facets of I.H.'s care. Under the Agreement, Norton was assigned a “Topton foster care caseworker.”¹¹ In addition, Norton agreed that “[f]requent contacts between the caseworker ․ and the foster parents [we]re necessary [so] both c[ould] discuss observations, difficulties, general development, and future plans regarding [I.H.].” To that end, the Agreement provided for biweekly visits by the caseworker to the foster home for the first two months of placement and monthly visits thereafter (“at the discretion of the caseworker and supervisor”).

Apart from these ongoing visits, the Home also set various standards for I.H.'s care. In its Handbook, the Home “detail[ed] foster care practices, foster parent/Topton roles and responsibilities, and current foster care regulations.” As new foster parents, the Nortons were required to participate in an orientation, which outlined “Topton philosophy, practices, foster parent and Topton's roles and responsibilities, and applicable regulations for foster care.” These “practices” and “regulations” included rules dealing with a foster child's money, clothing, medical and dental treatment, education, employment, transportation, recreation, religious practices, tobacco use, and vacations. They also included standards that governed its foster parents on everything from disciplinary practices to the frequency of photograph-taking. The Home even “reserve[d] the right to question the adequacy of meals, clothing, recreational opportunities, or other needs being provided by the foster family.” In addition to these “paper” provisions, the level of control that the Home actually exercised during I.H.'s placement further suggests the limited scope of foster parent autonomy within the Home's foster care program-with the Home's frequent phone calls and visits (to say nothing of their direct interventions involving the Nortons and I.H.).

While true that the relationship between Norton and I.H. was not that of a biological parent and his children,¹² this does not settle the master-servant question. The test is not whether Norton retained as much control over I.H. as a biological parent; it is whether the Home had sufficient control over Norton to result in a master-servant relationship. We hold that it did not.

First, in the Placement Agreement, Norton agreed “to be responsible for meeting the physical, social[,] and emotional needs of [I.H.]” on an ongoing basis, leaving the Home with the related responsibility of “assisting” Norton in achieving these goals. This passage alone suggests a division of labor inconsistent with a master-servant relationship, with Norton responsible for daily parenting decisions and the Home merely responsible for setting goals and providing additional support (as needed). Under Pennsylvania law, that the Home “set[ ] certain standards in order to maintain a uniform quality of ․ service only addresse[d] the result of the work and not the manner in which it [wa]s conducted.” Myszkowski, 634 A.2d at 627 (emphases in original). This is insufficient to establish a master-servant relationship.

Second, in the specific context of transportation, the Home's responsibilities under the Service Contract were narrow, and its control over Norton attenuated: the Home simply agreed to “guarantee[ ] all drivers hold a valid, appropriate driver's license.” The Placement Agreement is not in tension with this. Rather than exerting continuous control over Norton's manner of driving, the Home stipulated that anyone driving I.H. had to have a driver's license and adequate insurance coverage-subject to certain common-sense (and state-imposed) safety guidelines.¹³ Indeed, the Home even permitted other adults to drive I.H., at the discretion of Norton, subject only to the “expectation” that Norton “knows the driver, the destination, and is able to validate that the driver has a current motor vehicle driver's license and adequate insurance coverage.” Taken together, these requirements fulfilled the Home's obligations under the Service Contract and established less extensive control over Norton's transportation responsibilities than in other areas.

Finally, the source of many of the more invasive requirements within the Placement Agreement was the Commonwealth itself-either through statute or regulation-not the Home. Under Pennsylvania law, these requirements alone do not result in a master-servant relationship. In Universal Am-Can, the Pennsylvania Supreme Court held that an agreement between a hauling company and the owner-operator of a tractor-trailer did not establish a master-servant relationship. On examining the agreement between the parties, the Court observed that its provisions were “for the most part governed by federal regulations,” including “requirements for mandatory inspections, for observing speed limits, and for covering loads with tarps.” Universal Am-Can, 762 A.2d at 334, 335. It added:

Factors which demonstrate compliance with government regulations do not assist in the application of the [right-of-control] test. The existence of the regulations precludes [the parties] from negotiating any terms subject to the regulations. Neither party has bargaining power, or the ability to control the work to be done, when dealing with matters subject to regulation.

Id. at 334-35. As a result, the Court concluded that the regulations were “not probative” of the master-servant issue, as they “reflect the control of the government, not the motor carrier.” Id. at 336.

Because federal and state regulations controlled the essential elements of the trucker's work, the Court concluded that other features of the Agreement (which were not dictated by government regulations) also fell short of establishing a master-servant relationship. These additional features included requirements to communicate with the dispatcher every 12 or 24 hours, submit fuel and toll receipts, and take a mandatory one-hour stop for meals. See id. at 337-38 (Cappy, J., concurring in part and dissenting in part).¹⁴

The Home argues that the same is true here. And, indeed, the Placement Agreement and Handbook do overlap with state regulations in many key areas. For instance, the Pennsylvania Administrative Code reads: “The county agency shall provide an opportunity for a child placed in a foster home or child care facility which it administers to participate in religious activities, services [,] and counseling, taking into account the choices specified by the parents or guardian or the child.” 55 Pa.Code § 3130.86. The Placement Agreement largely tracks the Code's language, providing that “[a]ll children are to be given reasonable opportunities for religious expression within the broad religious preferences of their choice or that of their parents.” This is only one of several examples of how the Placement Agreement and the Handbook track state regulations. Others include the regulation of a foster child's money,¹⁵ education,¹⁶ safety,¹⁷ medical and dental care,¹⁸ residence,¹⁹ grievance procedures,²⁰ transportation requirements,²¹ and constraints on parental autonomy (including methods of discipline²² and training²³ requirements).

I.H. counters that not every provision in the Placement Agreement and Handbook was a product of state regulations. For instance, the Home included certain disciplinary practices beyond those enumerated under Pennsylvania law. The Home also exercised final authority over whether a child could partake in certain childhood rights-of-passage, including holding a summer job and driving a car. Finally, foster parents were prohibited from “sign[ing] any papers or documents other than school absence excuses, report cards[,] or items of a routine nature.” I.H. contends that, even if Universal Am-Can applied, these additional provisions, among many others, would be enough to establish a master-servant relationship. We disagree.

Universal Am-Can does not mean that all requirements within an agreement must be the product of government regulations. Instead, in this case we must consider the foster care agency-foster parent relationship in light of related state regulations, as well as the provisions imposed by the Home itself.

3. The Relationship Between Foster Care Agencies, Foster Parents, and Foster Children Under Pennsylvania Law

The relationship between a foster care agency and a foster parent is unlike that of the typical master and servant.²⁴ Within the framework provided by the agency, foster parents are given considerable latitude in meeting the goals of each child's individual service plan. This is by design, as the Commonwealth requires placements that, as much as possible, “replicate ․ the traditional family setting[ ].” 55 Pa.Code § 3130.67(b)(7)(i). Implicit in the foster parent-foster child relationship is a level of parental autonomy that permits foster parents, on a daily basis, to adjust their care to the individualized needs of their foster child, just as biological parents would in a “traditional family setting.”

The Pennsylvania Supreme Court has recently provided guidance in assessing relationships that are similarly “individualized” and “dynamic.” In Valles, the plaintiff brought a claim against a hospital “premised ․ upon a theory of vicarious liability for the battery committed by [the doctor] due to his failure to obtain informed consent prior to performing [an] aortogram.” 805 A.2d at 1234. The plaintiff argued that, “[b]ecause a hospital has an obligation to oversee all persons who practice medicine within its walls, ․ [it] as an employer and health care provider in its own right maintains a right of control in the relationship sufficient to justify the imposition of liability.” Id. at 1236.

The Court affirmed the grant of summary judgment in favor of the hospital, concluding that the relationship between it and a staff radiologist in the context of informed consent was not that of a “master” and its “servant.” This was despite the hospital exercising much control over the radiologist, including:

its provision of the instrumentalities, place to work, support staff, patient base and wages; its right to require the employee's presence at a particular time[,] and to terminate his employment; its retention of revenues for the employee's professional services; and its use of departmental organization, peer review, rules and regulations, credentialing[,] and privileging practices.

Id. at 1238. As the plaintiffs argued, the doctor's “exercise of independent medical judgment was subject to [the hospital's] right of control because: his work may not be delegated to others ․; his medical findings must be reported in a manner ․ set by hospital policy; and he must perform the requested study according to departmental protocols․” Id.

The Court nonetheless declined to recognize a master-servant relationship, holding “as a matter of law [that] a medical facility lacks the control over the manner in which the physician performs his duty to obtain informed consent so as to render the facility vicariously liable.” Id. at 1239. It explained that “a medical facility cannot maintain control over this aspect of the physician-patient relationship,” since “[i]nformed consent flows from the discussions each patient has with his physician, based on the facts and circumstances each case presents.” Id. The baseline was that it would be “improvident and unworkable” to “interject an element of a hospital's control into this highly individualized and dynamic relationship.” Id.

We conclude that the Pennsylvania Supreme Court's analysis in Valles should apply equally to the relationship between a foster care agency and its foster parent. Given the “highly individualized” and “dynamic” adjustments that foster parents must make in fulfilling the ongoing obligations to their foster children, it would be similarly “improvident and unworkable” to “interject an element of the [foster agency's] control into” such a relationship.²⁵

4. Conclusion

Under its Service Contract, Lehigh County assigned to the Home the duty of selecting and approving prospective foster parents, assisting the County with suitable placements, monitoring these placements, and submitting to the County individual service plans and various reports tracking each foster child. Although this provided the Home with a great deal of control over its foster parents, it fell short of imposing a “right of control” over the manner in which foster parents provided foster care to their foster children on a daily basis. The Home's Placement Agreement with the Nortons presented general guidelines for foster care and incorporated specific provisions of the Service Contract and state regulations. Instead of subjecting Norton to the continuous control of the Home, these documents generally addressed the results of the work and not the manner in which it was conducted. It gave the Home a broad supervisory role, but not the right to control the daily activities of the Norton family. On a daily basis, the Nortons decided how to meet I.H.'s physical, social, and emotional needs themselves. This was by design.

One of the key goals of the Pennsylvania foster care system “is to replicate as closely as possible the traditional family settings in which children are cared for and raised.” Leshko v. Servis, 423 F.3d 337, 346 (3d Cir.2005). This goal limits the scope of control that the foster care agency may exercise over its foster parents on a daily basis. Indeed, too much control over the day-to-day activities of foster families would make it impossible “to replicate ․ the traditional family setting[ ].” Id. Therefore, even with the level of control that the Home may have exercised under the Placement Agreement, the Nortons still exercised largely the same level of control over I.H.'s day-to-day life as they did over their biological children. As the District Court noted, the Nortons still decided “the activities I.H. would engage in ․, the food he would eat, [and] the books he would read.” In addition, “[n]o one controlled what time the Nortons must awake I.H. in the morning, what time they must feed him, what time he must go to sleep, and what tasks or activities he should be doing at any given moment.” For goals outlined by the Home, the Nortons were largely free to accomplish them as they saw fit. For items not contained in the Placement Agreement or the Handbook, the Nortons were free to treat I.H. as they would their biological children.

Of course, the Nortons were constrained in important ways by the Placement Agreement, and they were subjected to consistent monitoring by the Home. Nonetheless the Nortons still had a great deal of discretion on a daily basis over how to care for I.H. Much as the doctor-patient relationship in Valles, the foster parent-foster child relationship in this case was “highly individualized” and “dynamic,” making it similarly “improvident” and “unworkable” to exercise a high level of control over the relationship. Moreover, such control would be inconsistent with the regulatory regime imposed by the Commonwealth.

For these reasons, we hold that a master-servant relationship did not exist between the Home and Norton. Hence the Home was not vicariously liable for Norton's ordinary negligence at issue in this appeal.

We therefore affirm.

FOOTNOTES

1.  In his Amended Complaint, I.H. labeled Topton House, LLC, Topton Management Services, Inc., and the Lutheran Home at Topton, collectively, as “the Topton Defendants.” Topton House, LLC and Topton Management Services, Inc. were subsequently dismissed from the suit. Only the Lutheran Home at Topton is before us on appeal.

2.  Under Pennsylvania law, foster children may not be “punish[ed] for bedwetting or actions related to toilet training.” 55 Pa.Code § 3700.63.

3.  We may address this issue because the Home was on notice of the claim, did not argue in our Court that the issue was waived, and addressed the issue on the merits in its brief to us. See Hedges v. Musco, 204 F.3d 109, 122 (3d Cir.2000) (citing Johnson v. Horn, 150 F.3d 276, 284 (3d Cir.1998); and Venuto v. Carella, Byrne, Bain, Gilfillan, Cecchi & Stewart, P.C., 11 F.3d 385, 388 (3d Cir.1993)).

4.  “Generally, it is a jury question whether a person is an agent or an independent contractor.” Mahon v. City of Bethlehem, 898 F.Supp. 310, 312 (E.D.Pa.1995). I.H. thus argues that the District Court “usurped the jury's role” by granting summary judgment in this case. Appellant's Br. 13. This is overstated. Both parties concede that the relationship between the Home and Norton is governed by an agreement between them. See Appellant's Br. 10, 22; Appellee's Br. 3-4, 13. Therefore, the District Court was within its power to decide whether that agreement gave rise to a master-servant relationship as a matter of law. See Cox v. Caeti, 444 Pa. 143, 279 A.2d 756, 758 (Pa.1971) (“[W]here the facts [underlying an alleged master-servant relationship] are not in dispute, the question of the relationship becomes one for determination by the court.”); see also Valles v. Albert Einstein Med. Ctr., 569 Pa. 542, 805 A.2d 1232 (Pa.2002); Myszkowski v. Penn Stroud Hotel, Inc., 430 Pa.Super. 315, 634 A.2d 622 (Pa.Super.Ct.1993).

5.  Appellant's counsel suggested at oral argument that this case presents a question of first impression for any Circuit Court of Appeals. See Oral Arg. Tr. 15 (“This is a case of first impression, and it's all Pennsylvania law.”); see also Appellee's Br. 14 (“[T]here is no known Pennsylvania appellate precedent specifically involving the relationship between a foster care agency and foster parent․”). Counsel is correct, to our knowledge. Several states have considered similar questions, but those cases have focused principally on the relationship between foster parents and the state. See, e.g., Hunte v. Blumenthal, 238 Conn. 146, 680 A.2d 1231 (Conn.1996); Nichol v. Stass, 192 Ill.2d 233, 248 Ill.Dec. 931, 735 N.E.2d 582 (Ill.2000); Mitzner v. State, 257 Kan. 258, 891 P.2d 435 (Kan.1995); Miller v. Martin, 838 So.2d 761 (La.2003); Archer v. DARE Family Servs., No. CA 98-04354, 2002 WL 243649 (Mass.Super.Ct. Feb. 4, 2002); Simmons v. Robinson, 305 S.C. 428, 409 S.E.2d 381 (S.C.1991). But see Commerce Bank v. Youth Servs. of Mid-Ill., Inc., 333 Ill.App.3d 150, 266 Ill.Dec. 735, 775 N.E.2d 297 (Ill.App.Ct.2002) (addressing the relationship between a foster care agency, foster parents, and a foster child); M.H.