Wednesday, January 8, 2014

Premises Liability Standard Towards Trespassers Reaffirmed by Pennsylvania Superior Court

In its recent "non-precedential" decision in the case of Fisher v. Mallard Contracting Co., Inc., No. 2249 MDA 2012 (Pa.Super. Nov. 25, 2013 Mundy, Olson, Strassburger, J.) (mem.op. by Strassburger)(Mundy, J., dissenting), the Pennsylvania Superior Court affirmed a trial court's granting of summary judgment in favor of a defendant landowner and lessee and against a trespasser in a premises liability case.

In Fisher, the plaintiff was allegedly trespassing on the defendants' land while riding an ATV.  The plaintiff rode the ATV over a berm and into a mining pit.

The Court reiterated the rule of law in Pennsylvania that a trespasser may recover for injuries sustained on land only if the possessor of land was guilty of wanton or willful negligence or misconduct.

The Superior Court in Fisher rejected the plaintiff's argument that, because they were foreseeable trespassers, that an ordinary negligence standard should have been applied.

The trial court in Fisher had ruled that the ordinary negligence standard applies when dangerous activity is being carried out on the land and not when, as here, the injuries were due to a dangerous condition existing on the land.

The court also  noted that, in any event, with respect to foreseeable trespassers, landowners and possessors of land are only liable for injuries sustained by the trespasser if the injured party establishes that the defendant had acted willfully or with wanton misconduct.

Despite plaintiffs' production of a mining expert opinion that the landowner defendants failed to correct hazardous conditions created by lack of guard rails or berms, the Superior Court in Fisher found that the plaintiffs encountered a mining pit that was generally made inaccessible to the public and was an obvious danger to anyone.

The appellate court found no evidence that the landowner and mining operator recklessly disregarded a risk to trespassers such that there was a willingness to inflict injury.

Anyone wishing to review the Majority Opinion in Fisher may click HERE.  Judge Mundy's Dissenting Opinion can be viewed HERE.

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