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Jack Judge, Jr. v. Philadelphia Premium Outlets

March 15, 2012

JACK JUDGE, JR. PLAINTIFF,
v.
PHILADELPHIA PREMIUM OUTLETS, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Buckwalter, S.J.

MEMORANDUM

Currently pending before the Court is the Motion of Defendant ABM Mid-Atlantic, Inc. ("ABM") for Summary Judgment. For the following reasons, the Motion is denied.

I. PROCEDURAL BACKGROUND

Plaintiff Jack Judge, Jr. commenced this lawsuit against Defendants Philadelphia Premium Outlets, Chelsea Limerick Holdings, LLC, Chelsea Property Group, Inc., Simon Property Group, Inc. a/ka and/or d/b/a and/or t/a Simon Property Group, LP and/or Simon Property Group Delaware, Inc., Ann Taylor Stores Corp. a/k/a and/or d/b/a and/or t/a Ann Taylor Retail Inc. and/or Ann Taylor, Inc. and/or Ann Taylor, Ann Taylor Loft Outlet Store 2909 Philadelphia Premium Outlet, ABM Inc. Building Maintenance a/k/a and/or d/b/a/ and/or t/a ABM Engineering Service Company and/or ABM Industries Inc. and/or ABM, and HGO Inc. Building Maintenance Services a/k/a and/or d/b/a and/or t/a HGO Services, Inc. and/or HGO Corporation and/or HGO Incorporated Building Services. According to the Complaint, on December 7, 2007, Plaintiff was on a walkway adjacent to an Ann Taylor Loft Outlet Store at the Philadelphia Premium Outlets in Limerick, Pennsylvania. (Compl. ¶ 18.) While walking, he tripped over an unsecured and unfastened electrical extension cord located on the walkway of the Outlets' property and connected to an illuminated holiday decoration. (Id.) He stumbled and fell to the ground, resulting in injury. (Id.)

On December 3, 2009, Plaintiff initiated litigation in Philadelphia County Court of Common Pleas on grounds of negligence. (Id. ¶¶ 28--67.) In turn, the owners of the Property, Defendants Philadelphia Premium Outlets, Chelsea Limerick Holdings, LLC, Chelsea Property Group, Inc., and Simon Property Group, Inc. (collectively, the "Chelsea Defendants"), filed a Cross-claim against co-Defendant ABM based on the facts that (a) ABM had entered into a contract, wherein it agreed to provide janitorial and maintenance services for the Philadelphia Premium Outlets ("Philadelphia Premium Outlets," "Outlets," or "Property") from October 15, 2007 to October 31, 2010, and (b) had assisted in placing the electrical extension cords in question. (Chelsea Defs.' Answer & Cross-cl. ¶¶ 82, 84--85.) The Cross-claim asserted a cause of action against ABM pursuant to Pennsylvania Rule of Civil Procedure 1031.1,*fn1 (id. ¶¶ 77--80), as well as four additional causes of action for: (1) breach of contract (id. ¶¶ 81--103); (2) indemnification (id. ¶¶ 104--07); (3) negligence (id. ¶¶ 108--15); and (4) breach of promise to obtain insurance. (Id. ¶¶ 116--24.) Defendant ABM filed a motion to dismiss Count IV of the Cross-claim, which the Court denied on June 14, 2010.

On January 25, 2012, Defendant ABM moved for a general grant of summary judgment in its favor. Via this Motion, ABM now claims that it cannot be held vicariously liable for the alleged negligence of its employees that acted under the direction and control of others, and outside their scope of employment. The Chelsea Defendants responded on February 15, 2012, and ABM filed a Reply Brief on February 17, 2012. Plaintiff filed no response in opposition.

II. FACTS PERTAINING TO THE PRESENT MOTION

On September 27, 2007, the Chelsea Defendants and ABM entered into a Service Agreement for ABM to provide janitorial services at the Philadelphia Premium Outlets. (ABM Mot. Summ. J., Ex. B ("Service Agreement").) The scope of the work encompassed by this document included the following:

(1) The center space shall be free of obvious dirt, debris, and dust (including solid waste rooms & vending areas). Glass surfaces shall be clean and free of smudges. Furniture shall be free of obvious dust, dirt, spots, and debris. Carpets will be free of obvious spots and stains, and shall be clean and free of dirt and debris. Empty and damp wipe ashtrays. Washbasins, sinks and mirrors shall be clean and free of dust, dirt and encrustation. Contractor is responsible for any interior door, corridor, security divider, reception and room divider glass. Spot clean walls, doors and floors to remove all stains. All floors will be maintained according to best trade practices. Floors requiring a finish shall be maintained at a high luster and free of all marks, dirt and debris. Venetian blinds, if any shall be free of dust.

(2) Drinking fountains will be cleaned to be free of water marks, and any other debris of encrustation. Drinking fountains shall be maintained at a high level of sanitation.

Pa. R. Civ. P. 1031.1.

(3) All trash will be collected and removed to a location designated by Philadelphia Premium Outlet. Trash cans shall be emptied as needed and kept clean and free of dirt, stains, and debris. Plastic liners for all trash, debris and recycling containers shall not be torn, worn, or contain residue. Philadelphia Premium Outlets is responsible for any and all cost for trash and recycling removal.

(4) Restroom will be cleaned and sanitized with a disinfectant cleaner. Fixtures will be free of dust, streaks and encrustation. Fixtures will be free of dust, streaks and encrustation. Clean, sanitize and polish all surfaces of fixtures, including toilets, urinals, wash basins, and shower stalls. Clean, sanitize and polish all surfaces of fixtures, including toilets, urinals and wash basins. All plumbing on fixtures shall be free of dust, streaks and encrustation. Mirrors and glass shall be clean and free of spots and streaks. Floor will be clean and sanitized with a disinfectant cleaner and free of dust, dirt debris, or bacteria. Partitions and walls will be free of obvious dirt, graffiti, and dust. Toilet supplies shall be replenished as needed to maintain an adequate supply at all times. Contractor, when necessary is responsible for installing paper towel, toilet paper, toilet seat cover dispensers, tampax and sanitary napkin dispensers. The contractor is responsible for the filling of soap dispensers. The placement of the dispensers shall be at the discretion of the Philadelphia Premium Outlets General Manager. All sanitary napkin disposal containers shall be provided with a wax liner. The Contractor will be responsible for, maintaining and servicing wall-type mounted deodorizers, aerosol type, for each restroom, in a sufficient quantity to rid each restroom of any odor and will ensure that all restrooms are supplied with an approved deodorizer at all times. Trash pulled during day as needed. At a minimum restrooms will be policed every 30 minutes.

(5) All stairways, including landings, steps, railings, ledges, grilles, fire apparatuses, shall be free of dirt, dust, and debris. Spot clean walls, doors, radiators, ...


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