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CZAJHOWSKI v. CITY OF PHILADELPHIA

August 31, 1981

Matthew CZAJHOWSKI
v.
CITY OF PHILADELPHIA and Ogden Food Service Corporation of Delaware and Travelers Insurance Company



The opinion of the court was delivered by: WEINER

MEMORANDUM OPINION AND ORDER

Plaintiff, an employee of third-party defendant Ogden Food Service Corporation of Delaware (Ogden), was injured when he fell on a stairway at the front, right side of the Philadelphia Civic Center (Civic Center), a building owned and operated by the defendant City of Philadelphia (City). Pursuant to an agreement under which Ogden and third-party defendant Travelers Insurance Company (Travelers) each agreed to pay $ 35,000.00 as its respective share, subject to the court's determination of what, if any, obligation Ogden and Travelers owed to the City, plaintiff settled his claim. Presently before the court is the motion of the City for summary judgment, on its third-party claim against Ogden and the motion of Travelers to dismiss that third-party claim against it, and the cross-claims of Ogden and Travelers against the City. The parties have stipulated that there are no factual issues in dispute. Accordingly, summary judgment is appropriate, and we shall enter judgment in favor of Ogden and Travelers, on their cross-claims against the City and dismiss the third-party complaints of the City against Ogden and Travelers, and deny the City's motion for summary judgment.

 Plaintiff was employed by Ogden as a manager at its food and beverage concession located at the Civic Center. He fell on an allegedly defective, out of doors staircase which leads from a sidewalk in front of the Civic Center to a garage lower level. The staircase is owned by the City, and had no connection to plaintiff's work or to Ogden's concession.

 Contained originally within the bid specifications, and then within the concession contract entered into between Ogden and the City is the following clauses:

 
"The concessionaire shall also furnish Public Liability and Property Damage Insurance including Products Liability Insurance against any and all claims and losses arising out of the operation of the concession and the occupancy of the premises."
 
....
 
"The concessionaire shall also indemnify and hold harmless the Philadelphia Civic Center and City of Philadelphia from any and all liability or loss of any nature whatsoever arising out of or relating to the concessionaire's occupancy of the premises and operation of the facilities including, without limiting the generality of the foregoing coverage, any act or omission of the concessionaire, its agents, employees or invitees."

 The concession contract includes as well this clause:

 
"Licensee covenants and agrees to fully indemnify, protect and save harmless Licensor, its officers, agents and employees from any and all claims, demands, suits, actions and causes of action for damages for injuries to persons or damage to property suffered or incurred by any person or persons and arising from, growing out of or caused by the exercise by Licensee of the privileges herein granted."

 Ogden and Travelers contend that the contract's language only indemnifies the City with regard to acts or omissions attributable to them, and not with regard to acts or omissions attributable to the City. The City argues that it can and should be indemnified against its own negligence despite the absence of express contractual language to that effect, and refers us to the case of Urban Redevelopment Authority v. Noralco Corp., 281 Pa.Super. 466, 422 A.2d 563 (1980), in which the court assertedly did just that.

 Moreover, absent inclusion in the contract of express language indemnifying the City for its own acts or omissions with regard to the non-concession areas of the Civic Center, with which Ogden had no connection and for which it had no responsibility we cannot read the contract to mean that Ogden agreed to indemnify the City for any and all of the City's acts or omissions whatever their connection with the City's ownership and operation of the Civic Center. To the contrary, the contract expressly refers to loss "arising out of or relating to the concessionaire's occupancy of the premises and operation of the facilities" and to injuries or damage "arising from, growing out of or caused by the exercise by Licensee of the privileges ... granted."

 Thus, even if we were to find that the City was indemnified for its own acts or omissions, we could not find any such indemnification applicable here, for the plaintiff's fall cannot be considered a loss "arising out of or relating to the concessionaire's occupancy of the premises and operation of the facilities," or "arising from, growing out of or caused by the exercise by the Licensee of the privileges ... granted" merely because plaintiff worked for the concessionaire at the Civic Center and the fall occurred on the outside steps of the Civic Center.

 Nevertheless, the City argues it is entitled to judgment because Ogden paid plaintiff workmen's compensation benefits as an employee injured in the course of operating Ogden's concession, it is "self-evident" that plaintiff's injuries did arise out of Ogden's occupancy of the premises. There is no logic to this argument, however, for merely because an employee is injured during the course of his employment, the prerequisite for workmen's compensation eligibility, it does not necessarily follow that his injuries were caused by the acts or omissions of his employer, rather than of some other party, or that ...


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