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DANIEL WIEGAND v. MARS NATIONAL BANK (12/17/82)

filed: December 17, 1982.

DANIEL WIEGAND, A MINOR, BY HIS PARENT AND NATURAL GUARDIAN, JAMES WIEGAND, AND JAMES WIEGAND, IN HIS OWN RIGHT, APPELLANT,
v.
MARS NATIONAL BANK



NO. 652 PITTSBURGH, 1980, Appeal from the Order of July 01, 1980, in the Court of Common Pleas of Allegheny County, Civil Action, at No. GD 76-14193.

COUNSEL

Joseph W. Conway, Pittsburgh, for appellants.

Chester S. Fossee, Pittsburgh, for appellee.

Beck, Montemuro and Popovich, JJ.

Author: Beck

[ 308 Pa. Super. Page 220]

Appellant Wiegand contends that the lower court erroneously denied his motion to remove a compulsory non-suit. We find that the compulsory non-suit was properly granted, and affirm the lower court's order.

In May 1975, appellant, then sixteen years old, sustained an injury while playing football on an empty lot across the street from the bank. The lot is owned by the bank, and for some years has been given over to the local residents as a meeting place for community affairs and recreational activities. In 1974, the bank allowed the Kiwanis Club to erect a Christmas tree on the lot. A Kiwanis Club member who installed the tree secured it by putting a stake in the ground next to the tree trunk and tying the trunk to the stake. After Christmas, the club member and his sons removed the tree, but were unable to remove the stake due to frozen ground. They therefore pounded the stake below ground level with a sledge hammer and covered the site with earth so that it was not visible. Thereafter, an employee of the bank who mowed the grass in the lot never encountered the stake because it was not only below grass level, but also below ground level. In the spring, when the boys were playing ball, Wiegand removed his shoes and played in his socks. He tripped over part of the stake, which by then had emerged from a depression in the ground, and injured his foot.

[ 308 Pa. Super. Page 221]

In reviewing the lower court's decision in a non-suit, we are bound by the well-established principle that non-suit would be entered only in a clear case, and any conflict in the evidence must be resolved in the plaintiff's favor. This Court must accept as true the facts presented by the plaintiff and give him the benefit of all reasonable inferences arising from such evidence. Deaver v. Miller, 260 Pa. Super. 173, 393 A.2d 1209 (1978); Norton v. City of Easton, 249 Pa. Super. 520, 378 A.2d 417 (1977); Pagano v. Redevelopment Authority of the City of Philadelphia, 249 Pa. Super. 303, 376 A.2d 999 (1977); petition for allowance of appeal denied (1977).

The law has traditionally formulated the responsibilities and liabilities of landowners to those who enter the land in terms of the status of the entrant as an invitee, licensee, or trespasser. These are not self-defining terms, and in applying them to a set of circumstances we are guided by the definitions in the Restatement, 2nd, Torts (1965) §§ 328-343, which have been adopted by Pennsylvania law. Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978); Farrell v. Bonner, 424 Pa. 301, 227 A.2d 683 (1967); Hager v. Etting, 268 Pa. Super. 416, 408 A.2d 856 (1979); Crane v. I.T.E. Circuit Breaker, 443 Pa. 442, 278 A.2d 362 (1971).

We find no merit in appellant's argument that he was an invitee of the bank, and that therefore the bank was obligated to make the land safe for his use; i.e. that he was entitled to inspection to discover any latent defects, followed by repair or necessary warning. An invitee is defined as one invited to enter or remain on the land for a purpose for which the land is held open to the public. Restatement, §§ 332, 343.

We agree with appellee's and the trial court's characterization of Wiegand as a licensee; i.e. one who is privileged to enter the land only by virtue of the possessor's consent. The obligation to a licensee is that of exercising reasonable care to warn of dangerous conditions known ...


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