Community Use of Property Doctrine Utilized to Find that a Plaintiff Was a Licensee in a Premises Liability Case

In the case of Sallum v. The Pennsylvania Conf. Assoc. of Seventh-Day Adventists, No. 2021-CV-00234 (C.P. Lehigh Co. April 13, 2023 Caffrey, J.), the court addressed a Motion for Summary Judgment in a slip and fall case.

One of the central issues addressed by the court was whether or not the Plaintiff was a licensee where he slipped and fell in a parking lot and the Defendant asserted that the Plaintiff was not authorized to park in the parking lot.

According to the record before the court, the Plaintiff was a member of a mosque that had previously occupied the property and had parked his vehicle in the parking lot in the premises for over eight (8) to nine (9) years. After the Defendants in this case purchased the property, the Plaintiff allegedly spoke with two (2) individuals about whether or not he would be permitted to continue to use the parking lot. Those individuals, who allegedly identified themselves as employees of the new owner, allegedly told the Plaintiff that he could continue to park his vehicle in the parking lot.

The Plaintiff estimated that he then continued to park in that lot on hundreds of occasions without anyone telling him that he could not park there.

The Defendants asserted that they had notified the public at large that the parking lot was not available for public parking given that the Defendants had posted a sign indicating that unauthorized vehicles would be towed. It was also indicated by the Defendant that they would periodically use chains and a padlock to secure the entrance to the parking lot.  However, the Defendants also noted that, when they noticed unauthorized vehicles in the lot, they did not take steps to have those vehicles removed.

A witness who lived in the neighborhood testified that everyone in the neighborhood parked in the parking lot without any issue.

On the day of the incident, snow and ice had accumulated in the parking lot. The Plaintiff was able to enter the parking lot because it was not secured by any change or a padlock. The record also revealed that the parking lot was full of vehicles but the Plaintiff was able to find the last open space. As the Plaintiff stepped out of his vehicle, he slipped and fell.

The court denied the Defendant's motion for summary judgment after finding material issues of fact as to whether or not the Plaintiff was a licensee based upon the alleged implied consent of the use of the land by the landowner.

In so ruling, the trial court recognized the notation of “community use of a property” under the Restatement (Second) of Torts §332 as a basis for denying the Motion for Summary Judgment.  Plaintiff’s counsel indicated that, based upon his research, this may be the first Pennsylvania state court in which that rationale was utilized in this context.

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I send thanks to Attorney Michael J. McKarski of the Bethlehem, PA law firm of Cohen, Feeley, Altemose & Rambo for bringing this case to my attention.

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