# DiMarco v. Lynch Homes-Chester County, Inc.

> Supreme Court of Pennsylvania · November 29, 1990 · 525 Pa. 558

URL: https://www.frixlaw.com/law-library/cases/9711879

## Case

- **Full name:** Joseph R. DiMARCO, v. LYNCH HOMES-CHESTER COUNTY, INC., Lynch Homes, Inc., Leonard C. Giunta, D.O., Lawrence K. Alwine, D.O., and Chester County Medical Associates, Appeal of Leonard C. GIUNTA, D.O. and Lawrence K. Alwine, D.O. and Chester County Medical Associates
- **Court:** Supreme Court of Pennsylvania
- **Decided:** November 29, 1990
- **Citations:** 525 Pa. 558; 583 A.2d 422; 1990 Pa. LEXIS 202
- **Precedential status:** Published
- **Opinion:** Dissent by Flaherty
- **Judges:** Nix, Larsen, Flaherty, McDermott, Zappala, Papadakos, Cappy
- **Cited by:** 58 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9711879

## How later opinions describe it (automated extraction)

- finding third person has cause of action against physician if plaintiffs health is likely to be threatened by physician’s patient when physically intimate with patient, patient has communicable disease, and erroneous advice was given to that patient by physician
- holding that a third-person in class of persons whose health is likely to be threatened by patient with communicable disease has tort cause of action against treating physi cian for giving patient erroneous advice about the risk of spreading the disease
- holding physician owed duty to patient’s sexual partner where physician failed to advise patient that hepatitis exposure could be spread by sexual conduct
- concluding that it was foreseeable that third person would rely on information given to patient by doctor concerning the contagious nature of hepatitis
- recognizing that physician owed a duty of care to patient's sexual partner to properly advise patient of the risks of contracting hepatitis

## Opinion text

FLAHERTY, Justice,
dissenting.
The majority cites Cantwell v. Allegheny County, 506 Pa. 35 , 483 A.2d 1350 (1984) for the proposition that a professional may be held liable to a third party under the terms of Restatement of Torts (Second) § 324A if the professional has undertaken to render services to another which he should recognize as necessary for the protection of a third person. In doing so, the majority misstates the rule of Cantwell. Cantwell was written in the context of its facts, not involving professional services, and close on the heels of Guy v. Liederbach, 501 Pa. 47 , 459 A.2d 744 (1983), in which this Court clearly set out the requirements for the liability of professionals to third parties on a negligence theory.
In Guy v. Liederbach, a beneficiary who was also named executrix under a will brought suit against a Pennsylvania attorney who drafted the will and directed her to witness it, which, under applicable New Jersey law, voided her legacy. In an action brought by the beneficiary against the attorney, this Court held that a legatee of a will may bring an action as an intended third party beneficiary of the con *565 tract between the attorney and the testator, pursuant to § 302 of the Restatement (Second) of Contracts (1979), but that “important policies require privity (an attorney-client or analogous professional relationship, or a specific undertaking) to maintain an action in negligence for professional malpractice....” 501 Pa. 47, 51 , 459 A.2d 744, 746 (1983) (emphasis added). This holding was consistent with Lawall v. Groman, 180 Pa. 532 , 37 A. 98 (1897), in which this Court, in dicta, stated that an attorney has a duty to exercise reasonable care with respect to third parties and may be liable for misfeasance if (1) the attorney undertook to perform a specific service for a third party, (2) the third party relied on this service, and (3) the attorney was aware of the reliance. Building on this, we stated in Guy v. Liederbach:
Thus, we retain the requirement that plaintiff must show an attorney-client relationship or a specific undertaking by the attorney furnishing professional services, as in Lawall , as a necessary prerequisite for maintaining such suits in trespass on a theory of negligence.
501 Pa. at 58 , 459 A.2d at 750 . 1
In this case, as in Liederbach , the professional service was not performed for the third party, and the doctor did not even know of the existence of the third party. 2 Thus, there was neither privity nor a specific undertaking in favor of the third party, as is required under Liederbach , and in the absence of privity or specific undertaking, the doctors had no duty of care, and thus no liability, with respect to DiMarco.
As we stated in Liederbach , the dangers of adopting a negligence concept of duty analyzed in terms of scope of the risk or foreseeability are considerable and are to be avoided. These dangers include not only the imposition of *566 liability in favor of third parties in situations which are beyond the control of the professional rendering the service, 3 but also the prospect of inducing professionals to narrow their inquiries into the client or patient situation, to the detriment of the client or patient, so as to avoid possible liability toward third parties which might come from knowing “too much.” 4 In failing to apply the rule of Liederbach the majority has not only ignored this Court’s own caselaw, but has done a disservice to plaintiffs of the sort it seeks to protect.
Thus, I dissent.
NIX, C.J., and ZAPPALA, J., join this dissenting opinion.
. Our holding in Liederbach was not restricted to lawyers, but was intended to apply to "an attorney/client or analogous professional relationship or specific undertaking.” 501 Pa. at 51 , 459 A.2d at 746 .
. Although DiMarco’s brief argues that the doctors knew of DiMarco’s existence and his identity as a sexual partner of Ms. Viscichini, such knowledge is not alleged in the complaint.
. The professional has no control over the client's or patient’s disclosures of professional advice, the third parties to whom the advice is disclosed, the nature or circumstances of the communications, the accuracy of what is disclosed, the number of persons to whom disclosures are made, or when disclosures are made. Thus, the professional, under the majority’s view, would be subject to an unpredictable number of suits filed by an unpredictable number of persons, some or all of whom may be unknown to the professional, at almost any time, claiming that they learned of and relied on the professional’s advice.
. The more a professional knows about his client’s or patient’s situation, the more likely he is to be able to render valuable services, but also the more likely it is that he will learn things which may affect third parties. If liability were imposed for harm which might befall one or more of these third parties, a professional would be forced to analyze each client or patient situation with respect to potential third pariy risk and to speculate as to the nature, seriousness, likelihood, frequency of risk, the patient’s circumstances which might trigger the risk, and the third parties who might be exposed to risk. Obviously, such an undertaking would require much more information from the client or patient, would be very costly and time consuming, and would inevitably result in the sort of narrowing of inquiry referred to above.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9711879. Public record. Not legal advice.