DONALD NEWELL, ADMINISTRATOR OF ESTATE OF VICTOR NEWELL, DECEASED Appellant
MONTANA WEST, INC., GIAMBRONE ENTERPRISES, LP, JOHN GIAMBRONE, COLLEEN GIAMBRONE, JOSEPH GIAMBRONE, ANGELA GIAMBRONE, GEORGE KRIZENOWSKI, AND THE STORM Appellees
from the Order Dated August 5, 2014 In the Court of Common
Pleas of Philadelphia County Civil Division at No(s):
BEFORE: BOWES, J., OTT, J., and SOLANO, J.
Donald Newell, Administrator of the Estate of his father,
Victor Newell, Deceased, appeals from the order of August 5,
2014, granting summary judgment in favor of the owners and
operators of Montana West, "a
restaurant/bar/nightclub" in Richland Township, Bucks
County.  We affirm.
Newell ("Decedent") attended a concert at Montana
West on May 7, 2010. Montana West is located on the west side
of State Route 309 (also known as North West End Boulevard),
a four-lane public highway maintained by the Commonwealth.
Without permission of the landowners, Decedent parked his car
on the property of DHL Machine Company and/or DHL Machine
International ("DHL"), which is located on the east
side of Route 309, across the highway from Montana West. Two
bands were performing at Montana West that night. Not wanting
to see the second band, Decedent left Montana West at
approximately 11 p.m., when the first band's performance
ended. While crossing Route 309 to return to his car, he was
struck and killed by an automobile driven by Haleigh
Oliemuller. Trial Ct. Op., 9/22/14, at 1-2.
April 6, 2012, Newell commenced this action by a complaint
charging Montana West and DHL with negligence. With respect
to Montana West, Newell's theory was that Montana West
provided insufficient parking for those patronizing its
facility, thereby making it necessary for Decedent to incur
the risk of parking on the other side of Route 309 and of
crossing Route 309 to reach his car. On August 5, 2014, the
trial court entered summary judgment for Montana West and DHL
on the grounds that those defendants did not owe a duty to
Decedent when he crossed Route 309 and was fatally injured,
and that they therefore could not be held liable for
breaching any such duty through negligence. Newell appeals
only from the portion of the trial court's decision
entering judgment in favor of Montana West.
raises the following issue for our review:
Did the Trial Court err in finding as a matter of law
defendant Montana West did not owe Victor Newell a duty of
care when Montana West knew its property could not safely
accommodate parking for large crowds, knew during major
events its customers would routinely park across a dangerous
abutting highway because there were no safe alternatives to
park once Montana West's parking lot was full,
historically (but not the night in question) took safety
precautions for its customers in recognition thereof, and
knew a Montana West customer had already been fatally injured
crossing the same area of the highway on which Victor Newell
Newell's Brief at 3-4.
standard of review of an appeal from an order granting
summary judgment is well settled: "Summary judgment may
be granted only in the clearest of cases where the record
shows that there are no genuine issues of material fact and
also demonstrates that the moving party is entitled to
judgment as a matter of law." P.J.S. v. Pa. State
Ethics Comm'n, 723 A.2d 174, 176 (Pa. 1999)
(citation omitted). Whether there is a genuine issue of
material fact is a question of law, and therefore our
standard of review is de novo and our scope of
review is plenary. Chanceford Aviation Props,
L.L.P. v. Chanceford Twp. Bd. of Supervisors, 923 A.2d
1099, 1103 (Pa. 2007). When reviewing a grant of summary
judgment, we must examine the record in a light most
favorable to the non-moving party. Id.
noted, Newell sued Montana West for negligence.
In order to hold a defendant liable for negligence, the
plaintiff must prove the following four elements: (1) a
legally recognized duty that the defendant conform to a
standard of care; (2) the defendant breached that duty; (3)
causation between the conduct and the resulting injury; and
(4) actual damage to the plaintiff.
Nationwide Mut. Fire Ins. Co. v. Modern Gas, 143
A.3d 412, 415 (Pa. Super. 2016); accord Green v. Pa.
Hosp., 123 A.3d 310, 315-16 (Pa. 2015). The trial court
entered summary judgment for Montana West because it held
that Newell could not satisfy the first element, the
existence of a legally-recognized duty. See generally
Alderwoods (Pa.), Inc. v. Duquesne Light Co.,
106 A.3d 27, 31 (Pa. 2014) ("duty is an essential
element of a negligence claim"). "[W]hether to
impose affirmative common- law duties as a predicate to civil
liability is a matter of law" as to which our scope of
review is plenary. Seebold v. Prison Health Servs.,
Inc., 57 A.3d 1232, 1243 (Pa. 2012); accord Walters
v. UPMC Presbyterian Shadyside, 144 A.3d 104,
128 (Pa. Super. 2016) (en banc).
contends that the trial court erred as a matter of law
because Montana West had a duty to protect him from
foreseeable harm such as a fatal accident on Route 309.
Newell's Brief at 3-4, 7-9. He contends that Montana West
had insufficient parking on its premises to accommodate its
business invitees and that invitees therefore often parked on
the other side of Route 309 to attend Montana West events.
Newell claims that Montana West was aware of the dangers
posed to its business invitees who parked on the other side
of the highway, had taken actions in the past to dissuade
invitees from doing so, and had sometimes patrolled the other
side of the highway to prevent its invitees from parking
there. He argues that Montana West was negligent in failing
to take similar actions on the evening of Decedent's
scholarly opinions by the Honorable Marlene Lachman on April
17 and August 5, 2014,  the trial court concluded that Montana
West had no legal duty to Decedent under the facts of this
case and therefore may not be held liable for negligence.
After careful consideration, we agree.
brief blends and combines several theories of duty in an
effort to overturn the trial court's decision: (1) duty
of a landowner to pedestrians on adjoining roadways; (2) duty
of a landowner to provide adequate parking on its premises;
and (3) voluntary assumption of duty by a landowner through
prior safety measures. We address each of these separately.
a Landowner to Pedestrians on Adjoining Roadways
leaving the concert, Decedent was killed while crossing a
highway adjacent to Montana West's property. The trial
court therefore surveyed the law regarding the duty of a
landowner to protect its invitees from dangers on adjoining
public highways,  and it concluded that Montana West had no
such duty under the facts at issue here. We agree.
duty of a Pennsylvania landowner to protect business invitees
from dangers on adjoining roadways is a question of first
impression for this Court. However, as the trial court
observed, the Commonwealth Court, some lower courts in
Pennsylvania, and several courts in other jurisdictions have
broadly agreed that no such duty exists based on facts
similar to those here. Although we are not bound by those
decisions, we find them persuasive,  and we now join them in
holding that a Pennsylvania landowner owes no duty to an
invitee injured on an adjoining roadway under the facts
presented by this case. We reach this result mindful of
decisions by the Supreme Court of Pennsylvania that have
declined to recognize similar duties in analogous
circumstances. We begin by discussing the decisions that deal
directly with the alleged duty to protect invitees from
dangers on adjoining roadways, and we then examine the
analogous Pennsylvania Supreme Court decisions.
trial court based its decision primarily on the Commonwealth
Court's decision in Allen v. Mellinger, 625 A.2d
1326 (Pa. Cmwlth. 1993), appeal denied, 644 A.2d 738
(Pa. 1994). The trial court summarized the Allen
holding as follows: "As a matter of Pennsylvania law,
owners of property abutting state highways are not liable to
pedestrians or motorists who are injured on the
highway." Trial Ct. Op., 4/17/14, at 4.
Allen, the plaintiff, Elizabeth Allen, attempted to
make a left-hand turn from State Route 501 into the parking
lot of a store owned by the defendants, the Carpenters, when
her vehicle collided with a truck coming from the opposite
direction. The crest of a hill limited the drivers'
visibility at the point on Route 501 where a turn would be
made into the store's parking lot, and several accidents
had occurred at that location. Relying on Section 343 of the
Restatement (Second) of Torts (1965), which makes a possessor
of land "subject to liability for physical harm caused
to his invitees by a condition on the land" if he knows
or should have known of the danger and fails to take
protective action, the plaintiff claimed that the store
owners had a duty to post signs or take other measures to
warn those turning into its parking lot of the dangerous
condition. The Commonwealth Court disagreed, explaining:
[U]nder Pennsylvania law, state highways are the property of
the Commonwealth. The Commonwealth has the exclusive duty for
the maintenance and repair of state highways. The duty is not
owed by abutting landowners. State Route 501, the road
abutting the Carpenters' parking lot, has been designated
a state highway by statute. Thus, even though the
Carpenters' boundary line extends to the center of State
Route 501, the ownership, control and possession of the
highway traversing their property, along with the duty of
care to maintain the highway, belongs to the Commonwealth.
Allen, 625 A.2d at 1328-29 (citations omitted). The
court held that Section 343 was inapposite because the
accident occurred on the public highway, and not on property
in the possession of the defendants. Id.
connection, the court reviewed Section 349 of the Second
Restatement,  which provides:
Dangerous Conditions in Public Highway or Private Right of
A possessor of land over which there is a public highway or
private right of way is not subject to liability for physical
harm caused to travelers upon the highway or persons lawfully
using the way by his failure to exercise reasonable care
(a) to maintain the highway or way in safe condition for
their use, or
(b) to warn them of dangerous conditions in the way which,
although not created by him, are known to him and which they
neither know nor are likely to discover.
625 A.2d at 1328 (quoting Section 349). The Commonwealth
Allen must prove a duty of care on the part of the
Carpenters, and a breach thereof causing Allen's
injuries. Allen has failed to do this. The Carpenters are not
liable to Allen because, by her own admission, she collided
with the truck in the center of the northbound lane of the
highway, located off the Carpenters' property. As Section
349 of the Restatement makes clear, the Carpenters, as
abutting landowners, owed no duty to Allen, which could be
breached, to maintain a public highway in a safe condition.
Id. at 1329. The Commonwealth Court's holding in
Allen is consistent with that of other courts
throughout the country that have considered landowners'
liability for risks on adjoining roadways.
dealt with injuries to a motorist on an adjoining highway.
But, of particular relevance here, the same result has been
held to apply when the injury is to a pedestrian seeking to
cross the adjoining highway from or to the landowner's
property, including pedestrians who were the landowner's
business invitees. See, e.g., Davis v.
Westwood Group, 652 N.E.2d 567 (Mass. 1995) (dog racing
establishment had no duty to erect pedestrian crosswalk
across highway between its parking lot and its race track and
was not liable to invitee injured while crossing highway);
Ferreira v. Strack, 636 A.2d 682, 686 (R.I. 1994)
(owner of premises abutting public way had no duty to control
traffic and not liable to pedestrians crossing street after
oft-cited New Jersey decision, MacGrath v. Levin
Props., 606 A.2d 1108 (N.J. App. Div. 1992), is
illustrative. Jane MacGrath was struck by a car while she
walked across a public highway, Route 22, on her way to a bus
stop after leaving the defendant's shopping center. She
contended that the shopping center owed her "a duty to
provide her with a safe means of passage across Route 22, or
to warn her of the dangers inherent in traversing the
highway." MacGrath, 606 A.2d at 1109. The
Appellate Division of the New Jersey Superior Court
disagreed. Quoting Yanhko v. Fane, 362 A.2d
1 (N.J. 1976), the court observed:
The judicial imposition of a tort duty of care and
maintenance of a portion of the public domain upon a property
owner for no better reason than that his property is
proximate to it would seem to be an arbitrary determination.
The unrestrictable right of passage on the highway belongs to
the public. In principle, therefore, a remedy for injury to a
pedestrian caused by improper maintenance thereof should be
subsumed under the heading of public liability.
MacGrath, 606 A.2d at 1110 (quoting Yanhko,
362 A.2d at 3) (citations omitted). Because Route 22 was
owned and controlled by the state, the court held that the
shopping center owed no duty to the plaintiff for her
Just as "no one could reasonably suggest that the owner
of commercial property owes a duty to pedestrians crossing
the street to keep an abutting paved road in repair, "
it cannot be fairly suggested that the owner owes a duty to
protect the pedestrian from the obvious hazards of the
abutting highway. Liability rests with the State, if there
exists a dangerous condition in the public way which caused
the accident, or with the operator of the vehicle whose
negligence caused the injuries to the crossing pedestrian.
Id. at 1111-12 (quoted citation and footnote
Commonwealth Court has followed this line of decisions.
See Walinsky v. St. Nicholas Ukrainian Cath.
Church, 740 A.2d 318 (Pa. Cmwlth. 1999) (church not
liable for injuries incurred by worshiper who fell on ice on
street while entering church because church had no duty to
clear ice from street); Fazio v. Fegley Oil Co., 714
A.2d 510 (Pa. Cmwlth. 1998) (landowner had no duty to
pedestrian who fell on adjacent roadway due to water running
off owner's land that made road icy), appeal
denied, 734 A.2d 863 (Pa. 1999). In addition, the trial
court here concluded that this case is "almost identical
to" another Pennsylvania trial court decision that was
affirmed by a non-precedential decision of this Court. Trial
Ct. Op., 8/5/14, at 11 (citing Clapper v. Weakland,
2011 WL 9162707 (C.P. Cambria 2011), aff'd mem.,
60 A.3d 862 (Pa. Super. 2012), appeal denied, 72
A.3d 599 (Pa. 2013)). In Clapper, the plaintiff, a
minor, left a concert he was attending on the defendant's
property so that he could walk to a convenience store located
on the other side of a six-lane highway. As he did so, he was
struck by a car and injured. The plaintiffs argued that the
landowner owed a duty to the minor to protect him from the
known dangers of crossing the highway, but the trial court,
relying on Allen, held that no such duty
this substantial body of authority persuasive. A pedestrian
who walks on a public highway places himself at risk of
injury from vehicles traveling on the highway. Any duty of
care owed to that pedestrian must belong to those who
maintain the road and those motorists who are licensed to