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Newell v. Montana West, Inc.

Superior Court of Pennsylvania

January 19, 2017

DONALD NEWELL, ADMINISTRATOR OF ESTATE OF VICTOR NEWELL, DECEASED Appellant
v.
MONTANA WEST, INC., GIAMBRONE ENTERPRISES, LP, JOHN GIAMBRONE, COLLEEN GIAMBRONE, JOSEPH GIAMBRONE, ANGELA GIAMBRONE, GEORGE KRIZENOWSKI, AND THE STORM Appellees

         Appeal from the Order Dated August 5, 2014 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 120400813

          BEFORE: BOWES, J., OTT, J., and SOLANO, J.

          OPINION

          SOLANO, J.

         Appellant, 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. [1] We affirm.

         Victor 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.[2]

         On 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.[3] Newell appeals only from the portion of the trial court's decision entering judgment in favor of Montana West.

         Newell 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 was killed?

Newell's Brief at 3-4.

         Our 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.

         As 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).

         Newell 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 death.

         In scholarly opinions by the Honorable Marlene Lachman on April 17 and August 5, 2014, [4] 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.

         Newell's 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.

         Duty of a Landowner to Pedestrians on Adjoining Roadways

         After 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, [5] and it concluded that Montana West had no such duty under the facts at issue here. We agree.

         The 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, [6] 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.

         The 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.

         In 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.

         In this connection, the court reviewed Section 349 of the Second Restatement, [7] which provides:

Dangerous Conditions in Public Highway or Private Right of Way
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 Court concluded:

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.[8]

         Allen 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 church services).[9]

         An 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 injuries:

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 omitted).[10]

         The 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 existed.[11]

         We find 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 drive ...


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