Premises Liability - Ice and Snow Cases

Marshal v. Marshall, C.P. Lawrence County, opinion by Motto, J., (PICS NO. 08-1054). 
                                   
In denying defendant’s motion for summary judgment, the court reiterated Pennsylvania law that the requirement that there be hills and ridges of ice for a plaintiff to recover from a fall is only applicable where the snow and ice complained of were as the result of natural accumulations.  When an accumulation is caused by an artificial condition, (e.g., a faulty drain pipe or a depression in the walking surface, the hill and ridge doctrine does not apply.) 

Premises Liability - Assumption of the Risk  - No Duty Rule       

Garner v. Spectrum, C.P. Philadelphia, opinion by DiVito, J., filed 6/17/08 (PICS NO. 08-1048).

Plaintiff was walking through a parking lot toward the Wachovia Center a few days after a snowfall.  He approached a two foot square patch of snow.  Rather than walking around the patch, he chose to jump over it and fell fracturing his ankle.  The court granted summary judgment to the defendant based on the doctrine of assumption of the risk that where a plaintiff knowingly and voluntarily proceeded in the face of a known and obvious risk, he may not bring a claim against another in negligence.  The court noted that the plaintiff was under no compulsion to jump over the patch of snow instead of sidestepping it.

(Note: Although the court couched its decision in language referring to assumption of the risk, I believe the actual import of the decision is that the defendant owed no duty, as a matter of law, to warn the plaintiff of the existence of the snow patch or to remove it.  Had the accident happened at night or the ice patch had been otherwise obscured from view, the issue of negligence would have been one for the jury.)

Premises Liability - Dog Bite Cases - Duty on a Homeowners’ Association

McMahon v. Conklin, Commonwealth Court, opinion by Flaherty, S.J., filed 6/13/2008 (PICS No. 08-0994).

Plaintiff, an owner of a property in the Pleasant Valley Development, was attacked in his driveway by two dogs owned by the Conklins, his neighbors.  Previously, plaintiff had complained to the homeowners association about the dogs and the Association had sent a notice to the Conklins requesting that they keep their dogs on their property.  However, the letter was sent to the wrong address and was never received.

McMahon sued both the Conklins and the homeowners association.  As to the Association, he alleged that it had been negligent in failing to establish rules that would require the Conklins to control their dogs and in failing to take action once they were alerted to the dogs’ violent tendencies.  The trial court granted summary judgment for the Association and plaintiff appealed.

On appeal, the Commonwealth Court panel affirmed the dismissal of the plaintiff’s claim against the Association. 

The Commonwealth Court’s opinion held that the duties of the Homeowners Association did not include the right to control events on private property or the authority to force homeowners to remove pets from their property.  (Citing Palermo v. Nails, 483 A.2d 871 (Pa. Super. 1984).  The court also noted that the Association never undertook any “special relationship” with the plaintiff or defendants to control the behavior of the defendants’ dog – which would have given the Association a duty beyond its official one.  The opinion also noted that responsibility for  enforcement of the Pennsylvania “dog law” lies solely with the Secretary of Agriculture and therefore the law cannot be applied to individuals or groups such as homeowners associations, citing Lerro v. Upper Darby Township, 798 A.2d 817 (Pa. Commw. 2002). 

Other Premises Liability Case of Interest

Premises Liability - Owner Out of Possession, Owner Retention of Right of Control and
Areas Open to the Public

Jones v. Levin, Pa. Superior Court, opinion by  McCaffery, J., filed 12/31/2007, 940 A.2d 451 (Pa. Super. 2007). 

Plaintiff, an employee of Levin, Inc. (a furniture store) fell on ice that had accumulated in a parking lot adjacent to the rear entrance the Levin store.  The property on which she fell was owned by the Levin Estate and had been leased on a month-to-month basis to Levin, Inc. for the purpose of selling furniture and appliances.  Plaintiff was returning to her car after work on the evening that she fell and therefore any claim by her against Levin, Inc. would be barred by the Workers’ Compensation Act.

Plaintiff alleged that the Levin Estate, the owner, was negligent in permitting runoff and snow and ice to build up in a depression in the parking lot, thereby producing a dangerous condition.  The trial court granted summary judgment to the defendant, plaintiff appealed and the Superior Court, per McCaffery, J., (not surprisingly) reversed. 
           
On appeal, plaintiff raised two issues: (1) whether the lower court erred in finding that the Levin estate did not have control over the premises on which the plaintiff fell; and (2) that the lower court erred in holding that the Restatement 2d of Torts, §359 is inapplicable to employees of a tenant who are injured on a portion of the leased premises that is held open for the admission of the public.

Initially, the Superior Court panel found that there were factual issues as to whether there was, in fact, a lease agreement in effect between Levin, Inc. and the Levin Estate and therefore there was an issue of fact as to whether Levin, Inc. or the Levin Estate exercised possession and control of the property.  Therefore, since a jury could reasonably find that the Levin Estate was in possession and control of the accident site, a reversal was in order. 

However, the court opted to address the plaintiff’s second issue on appeal, the public use exception.  Under this exception, a landlord out of possession may be liable if he or she leased the premises for a purpose involving admission of the public and has failed to inspect for or repair dangerous conditions prior to transferring possession of the property.  The Superior Court noted that there were no Pennsylvania cases dealing with the question of whether an employee of the tenant could avail himself/herself of this exception.  The opinion noted that Kansas, Missouri and Connecticut would not permit recovery, but that New York would.  The Superior Court then decided that the New York view was preferable.

Note: The Superior Court opinion fails to discuss what evidence the plaintiff presented in support of a finding that the defective condition predated the lease.