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DAVID v. BROADWAY MAINTENANCE CORP.

June 6, 1978

THOMAS DAVID
v.
BROADWAY MAINTENANCE CORPORATION v. CHARLES W. ROWLAND, JR.



The opinion of the court was delivered by: LUONGO

 Thomas David filed the complaint in this tort action on March 25, 1977. Jurisdiction is based solely on diversity of citizenship. 28 U.S.C.A. § 1332(a) (Supp. 1977). Presently before me is Broadway Maintenance Corporation's motion for summary judgment. See generally Fed. R. Civ. P. 56. For the reasons hereafter stated, I conclude that summary judgment may not be entered.

 The facts of this case, viewed in the light most favorable to the plaintiff, *fn1" may be briefly stated. In the early morning hours of December 5, 1976, the plaintiff, Thomas David, was driving south on 52d Street in Philadelphia when he observed a burning, smoking automobile parked on the other side of 52d Street, beyond the intersection he was approaching. All the street lights on both blocks of 52d Street were out. After David drove through the intersection, he was able to see a man inside the burning vehicle. David then pulled over to the curb opposite the other vehicle, got out of his own automobile, and began to cross the street in order to reach the other man. While he was in the middle of 52d Street, however, David was struck by an automobile driven by Charles H. Rowland, Jr., the third-party defendant. Rowland did not see David until after the impact occurred, when David was thrown onto the hood of Rowland's vehicle.

 David subsequently brought this action against Broadway Maintenance Corporation, a New York corporation that had undertaken, pursuant to a municipal contract, to maintain and repair the street lights on all public streets in the city of Philadelphia. The complaint alleges that the accident involving David and Rowland occurred due to Broadway Maintenance Corporation's negligence in "maintaining and/or replacing street lamps" on 52d Street, including those on the block where the collision took place. Complaint para. 7(a). In particular, David alleges that the inoperative street lamps on 52d Street "prevented the driver of the . . . vehicle which struck the plaintiff from seeing plaintiff in view of the fact that there was great fire and smoke in the area which was poorly lighted." Id. para. 7(e).

 Broadway Maintenance Corporation (hereafter Broadway) then moved to dismiss the complaint under Rule 12(b)(6). This motion was denied without prejudice, whereupon Broadway filed a third-party complaint against Rowland, the driver of the vehicle that struck David. Both David and Broadway pursued discovery, and on February 24, 1978, Broadway filed the summary judgment motion that is now before me. *fn2"

 Summary judgment, of course, is proper only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see, e.g., Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). Broadway contends here that it is entitled to judgment because David's claim against it, which is grounded on negligence, is legally insufficient.

 The principal argument runs as follows. (1) In order to prevail on a negligence theory, the plaintiff must establish that the defendant was under a duty to use reasonable care in his conduct with respect to the plaintiff. (2) The city of Philadelphia was under no duty to provide street lights on a public street. (3) Broadway, as an agent of the city, assumed no higher duty when it undertook to maintain and repair the city's street lights. (4) Inasmuch as Broadway was under no duty to David, it cannot be held liable to him for negligence.

 In assessing Broadway's position, I must apply the law of Pennsylvania. See Erie R.R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938).

 Broadway is clearly correct that the breach of a legal duty is an essential element of any cause of action based on negligence. See, e.g., McNello v. John B. Kelly, Inc., 283 F.2d 96 (3d Cir. 1960); Drexel v. Union Prescription Centers, Inc., 428 F. Supp. 663 (E.D. Pa. 1977); Boyce v. United States Steel Corp., 446 Pa. 226, 230, 285 A.2d 459 (1971) (plurality opinion); W. Prosser, Torts § 30 at 143, § 53 at 324 (4th ed. 1971).

 I also accept, for present purposes, Broadway's second proposition--that the city of Philadelphia was under no duty to provide street lights. *fn3" See O'Rourke v. Washington City, 304 Pa. 78, 155 A. 100 (1931); Horner v. City of Philadelphia, 194 Pa. 542, 45 A. 330 (1900) (per curiam); Canavan v. Oil City, 183 Pa. 611, 38 A. 1096 (1898); Wecksler v. Philadelphia, 178 Pa. Super. 496, 502-03, 115 A.2d 898 (1955); Dattner v. Lamm, 5 Pa. D. & C. 2d 552, 553, 557 (C.P. Phila. County 1955) (city of Philadelphia not liable for failure to maintain street lights). The remainder of Broadway's argument, however, is not on such firm ground.

 With respect to proposition (3), Broadway relies primarily on Thompson v. Springfield Water Co., 215 Pa. 275, 64 A. 521 (1906). In that case, the township of Lower Merion had engaged the defendant water company to install and service a number of fire hydrants, and to furnish sufficient water to the hydrants for firefighting purposes. Thompson sought damages from the water company after his property was destroyed due to "the insufficiency of the only available hydrants," but the trial court entered judgment for the water company. 215 Pa. at 278. On appeal, the Supreme Court of Pennsylvania affirmed; the following language from its opinion is pertinent here:

 
"[The plaintiff] rests his case wholly upon the negligence of the defendant in the performance of a public duty which it had voluntarily assumed. Did any legal public duty in this behalf rest upon the defendant? The determination of this case depends upon the answer to this question. . . . Presumably from consideration of economy and convenience, instead of establishing a municipal water plant with the necessary equipment . . ., the municipality . . engaged the defendant company . .. It thereby made the defendant its agent to discharge for it this particular function, and since the act of the agent in the proper exercise of authority is the act of the principal, a correlative must be that, in doing the act no higher or other duty . . . can rest on the agent than would have rested on the principal . .. The case on this point, therefore, may be considered as though the municipality, and not the agent, were directly involved."
 
215 Pa. at 279.

 The court went on to state that a municipality could not be held liable for interrupting, or even discontinuing, a service it was not required to provide in the first place, and that therefore the water company, as the city's agent, likewise could not be held liable for negligently ...


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