Court Addresses Liability of Store To Customer Attacked By Assailant After Leaving the Store

In its non-precedential decision in the case of Borth v. Alpha Century Security, Inc., No. 2044 EDA 2022 (Pa. Super. Aug. 1, 2025 Lazarus, P.J., Beck, J., and Stevens, P.J.E.) (Mem. Op. by Lazarus, P.J.) (non-precedential), the Pennsylvania Superior Court reversed a trial court’s entry of summary judgment in favor of Rite Aid and certain security companies in a lawsuit arising out of an incident during which the Plaintiff was assaulted by an individual at a location over 700 feet from the Rite Aid store.

According to the ruling, the assailant had been seen following the Plaintiff in the store and then left the store shortly after the Plaintiff left.  The record indicated that the security guards allegedly noticed this activity.

The appellate court ultimately ruled that the Defendants owed the Plaintiffs the duty owed to any business invitee, which was to take reasonable precautions against harmful third party conduct that might be reasonably anticipated.

The Superior Court additionally noted that, while it agreed with the trial court’s determination that Rite Aid’s duty to protect its invitees “does not extend to an area beyond its parking lot, city blocks from its location,” the Superior Court disagreed that it necessarily followed, under the facts in this case, that the subject attack was unforeseeable as a matter of law or that the criminal act of the assailant was a superseding event. See Op. at 8-9. 

The court noted that, although the Plaintiff was no longer on Rite Aid property when she was attacked by the assailant, it was not entirely clear whether Rite Aid’s precautions, or the security company Defendants’ actions, were reasonable and/or sufficient under the circumstances.

In this regard, the court noted that the Rite Aid store was in possession of reports putting the store on notice of crimes in the area. Moreover, there is evidence in this case that the representatives of the security company in the store was suspicious of the assailant in terms of his following the Plaintiff in the store and also leaving the store without buying anything shortly after the Plaintiff left the store.

In the end, the Superior Court reversed the trial court’s entry of summary judgment in favor of the Defendants.

Anyone wishing to review this non-precedential decision of the Superior Court may click this LINK.

Source of image:  Photo by Rayner Simpson on www.unsplash.com.

I send thanks to Attorney Thomas G. Wilkinson, Jr. of the Philadelphia office of Cozen & O'Connor for bringing this case to my attention.

The Dangers of Store Checkout Lines

In the case of Kovalev v. Wal-Mart, Inc., No. 2:2022-CV-1217 (E.D. Pa. Oct. 11, 2022 Quinones Alejandro, J.), the court granted a F.R.C.P. 12(b)(6)Motion to Dismiss in part and denied it in part in a premises liability case.

According to the Opinion, the Plaintiff was allegedly injured when he was standing in a checkout line and a customer behind him started hitting the Plaintiff with her shopping cart while shouting "move the line."  The Plaintiff alleged, in part, that, even though security personnel had the ability to observe the incident via real-time surveillance in a security room several feet away, no one came to the aid of the Plaintiff at the time of the incident.    

After suit was initiated, the Defendant store filed a Rule 12(b)(6) Motion to Dismiss on various grounds.

The Plaintiff's claims against Wal-Mart for assault and battery were dismissed given the lack of any facts to support any allegations that the store intentionally harmed the Plaintiff.  Nor were there any facts to support an allegation that Wal-Mart was liable for the intentional acts of another patron in the store.

The court found that the Plaintiff’s claim that the store was negligent in failing to have sufficient security to prevent its customers from assaulting other customers did state a valid cause of action.  Here, the Plaintiff alleged that he was a business invitee of the store and that the store was negligent in protecting him from the intentional or criminal acts of a third person within the store.

However, the court also found that a negligence duty to provide security within a commercial establishment does not create a special relationship that would support a separate claim for negligent infliction of emotional distress. The court noted that such relationships exist only in extremely limited circumstances.

The court dismissed the Plaintiff's separate claim for "gross negligence" after finding that there is no separate cause of action for gross negligence recognized under Pennsylvania law.  

The court additionally found that negligence per se is not an independent cause of action.

In contrast, the court in this matter additionally ruled that there is civil cause of action recognized in Pennsylvania for recklessn endangerment. 

The court also ruled that, absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act. The court also found that a negligence claim is not an intentional or criminal act that could support a separate civil conspiracy claim.

Lastly, the court also found that physical and emotional injuries do not support a cause of action under the Unfair Trade Practices & Consumer Protection Law, as that cause of action is limited to losses of money or property.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's compantion Order can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

ARTICLE: Criminally Charged Defendants Face Additional Hurdles in Companion Civil Lawsuits

Criminally Charged Defendants Face Additional Hurdles in Companion Civil Lawsuits

By Daniel E. Cummins | April 16, 2020

Pennsylvania Law Weekly

Daniel E. Cummins of Cummins Law.

Oftentimes, when a personal injury claim arises out of an underlying accident that involves criminal conduct by a tortfeasor defendant, there will be a criminal case proceeding against the defendant while the plaintiff is also simultaneously pursuing her or his civil lawsuit. This could arise, for example, where a motor vehicle accident emerges out of a DUI, where a student is injured in a hazing incident at a fraternity, or when a person is injured in an assault and battery.

In such cases, a defendant faced with criminal charges while the civil lawsuit is ongoing will usually file a motion with the civil court requesting that the civil case be stayed pending the resolution of the criminal case.

The concern for the defendant in such situations is that his exercise of the constitutionally protected right against self-incrimination under the Fifth Amendment to both the Pennsylvania and U.S. Constitutions may be in danger if the defendant is forced to answer interrogatories or undergo a deposition regarding the facts of the underlying matter.

Until recently, there was no set standard of review for civil trial court judges to rely upon in order to decide such motions to stay in the state courts of Pennsylvania.

A Foreshadowing of Appellate Precedent
In a prescient decision back in 2016 in the case of Liu v. Pi Delta PSI Fraternity, 302-CV-2015 (C.P. Monroe Co. 2016), Judge Arthur L. Zulick of the Monroe County Common Pleas Court reviewed the law surrounding a motion to stay a civil litigation matter pending the disposition of criminal charges asserted against the defendants in a companion case.

The Lui case arose out of fatal injuries sustained by the plaintiff’s decedent allegedly as a result of hazing incidents with a fraternity. During the pendency of this civil litigation matter, criminal charges were also proceeding against certain defendants.

After the plaintiffs served discovery on the defendants, certain defendants filed a motion seeking to stay the civil litigation matter pending the disposition of their criminal charges. One basis for the motion was that the defendants asserted that they would be forced to choose between waiving their constitutional privilege against self-incrimination and also would risk information being used against them in the subject criminal cases.

In his decision, Zulick reviewed the Fifth Amendment and Article 1, Section 9 of the Pennsylvania Constitution regarding the privilege against self-incrimination and its application in civil litigation matters.

Zulick found that the question of whether to stay all or part of a civil proceeding because of a pending criminal prosecution required a balancing of the various interests of the parties. Zulick noted that, while the Pennsylvania appellate courts had not yet adopted a specific balancing test to be applied in these situations, the federal courts had. In the Liu case, Zulick relied upon the factors noted in the case of In re Adelphia, (E.D. Pa. 2003). After applying these factors to the case before him, Zulick issued a split decision, granting the motion to stay in part but allowing other parts of discovery to proceed as well.

While Zulick was relying upon the six-factor test developed in the Pennsylvania federal courts, other Pennsylvania state trial court judges were apparently relying upon a variety of different standards of review to decide whether to grant a civil defendant a stay of a plaintiff’s personal injury lawsuit pending the results of a companion criminal court case against the defendant. The question of whether to grant a motion to stay in these circumstances was in need of appellate guidance with respect to a uniform way for state trial courts to address such motions.

An Appellate Case of First Impression

That appellate guidance arrived in March of this year, when the Pennsylvania Superior Court, in a case of first impression at the state court appellate level, adopted the same six-factor test in the case of Keesee v. Dougherty, 2020 Pa. Super. 64 (Pa. Super. March 16, 2020 Bowes, J., Olson, J., Stabile, J.) (Op. by Olson, J.). In so ruling, the Superior Court also cited to the federal case of In re Adelphia Communications, No. 02-1781 (E.D. Pa. 2003).

Under the precedent of the recent Keesee case, the six factors that are now to be addressed by a trial court in determining whether to stay a civil case pending the resolution of a companion criminal case include the following: the extent to which the issues in the civil and criminal cases overlap, the status of the criminal proceedings and whether any defendants have been indicted, the plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the plaintiff caused by the delay, the burden on the defendants, the interests of the court, and the public interests at issue.

The personal injury lawsuit in the Keesee case was brought by a nonunion electrical contractor against an indicted union boss and other defendants after the plaintiff was allegedly physically assaulted after the plaintiff secured a contract on a townhome project and refused to join the union. The defendants’ motion to stay, which asserted there were companion ongoing criminal investigations, was denied by the trial court. According to the Superior Court in Keesee, the trial court correctly referred to the six-factor test developed in the case of In re Adelphia Communications but had only reviewed the first of the six factors in its analysis.

The Superior Court remanded the case back to the trial court level with instructions to the trial court to conduct another review of the defendants’ motion to stay under the entire six-factor test.

While indicted defendants are considered innocent until proven guilty, in the past, trial courts have generally declined to completely stay a companion civil case. In the interests of judicial economy and of allowing injured party plaintiffs to move their cases forward toward compensation for the injuries alleged, the trial courts have sometimes attempted to craft a remedy that allows the case to proceed while, at the same time offering some protections for the defendant’s right against self-incrimination.

For example, in a multidefendant case, a trial court may allow the entire case to proceed against all defendants, but grant the defendant who is facing criminal charges a reprieve against answering interrogatories about the underlying accident or undergoing a deposition.

However, in cases where there is only one defendant, experience tells that most trial courts will deny the stay motion and allow the civil plaintiff’s case to proceed forward. The rationale for supporting an injured party’s right to compensation for injuries over a tortfeasor’s constitutionally protected right against self-incrimination is often couched in the language of several of the factors ultimately adopted by the Keesee court. What is usually not said, but which is likely true and perhaps rightfully so, is that trial courts do not look kindly upon tortfeasors who are alleged to have engaged in criminal actions that resulted in injury to others.

When a civil defendant’s motion to stay a civil lawsuit is denied, that defendant must resort to asserting his or her Fifth Amendment right against self-incrimination in response to any interrogatories or deposition questions. Questions may arise on whether or when a defendant may assert that right in a civil litigation matter.

Not Everyone Can Assert the Fifth

In cases where a defendant’s motion to stay a civil case due to a pending criminal case also proceeding at the same time is denied, the defendant has the option of pleading the Fifth Amendment in response to interrogatories and deposition questions about the facts of the underlying accident. The problem for the defendant in this regard is that “the court in a civil case may draw any adverse inference which is reasonable from the assertion of the privilege” against self-incrimination, as in Crozer-Chester Medical Center v. May, 531 A.2d 2, 6 (Pa. Super. 1987), appeal dismissed, 550 A.2d 196 (Pa. 1988).

The state courts of Pennsylvania have ruled that, obviously, a claim against self-incrimination cannot be claimed by a defendant when he has already passed through the criminal cases and has pleaded guilty or has been convicted. See Rogers v. Thomas, (C.P. Lacka. Co. 2015 Nealon, J.) citing with “see” signal Commonwealth v. Melvin, 103 A.3d 1, 51 (Pa. Super. 2014).

A question arises as to what extent a defendant may properly assert the privilege against self-incrimination in a civil matter when criminal charges have not yet been filed.

In the Pennsylvania Supreme Court case of Commonwealth v. Saranchak, 866 A.2d 292 (Pa. 2005), the court set down the standard for trial courts to apply when determining whether a Fifth Amendment privilege has been properly invoked. The court noted that, when a witness pleads the Fifth, “‘it is always for the court to judge if the silence is justified, and an illusory claim should be rejected,’” quoting Commonwealth v. Carrera, 227 A.2d 627 (Pa. 1967).

The Supreme Court further noted that “for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answer demanded by the question presented to the witness cannot possibly have such a tendency.”

As such, it appears that under this standard the trial courts would err on the side of allowing the witness to assert such an important privilege. In fact, the Pennsylvania Supreme Court cautioned in the Carrera and Saranchak cases that “if an individual possesses reasonable cause to apprehend danger of prosecution, “it is not necessary that a real danger of prosecution exist to justify the exercise of the privilege against self-incrimination.”

In the event that a motion to stay a civil matter pending the results of a companion criminal case is denied, and the defendant goes on to assert the Fifth in response to any interrogatories or deposition questions, the plaintiff will be entitled to argue an adverse inference as well as receive a jury instruction in that regard. With that instruction, a jury will be permitted to infer that, had the defendant answered questions as to how the plaintiff’s injury occurred, the information provided by the defendant would have likely favored the plaintiff’s case.

As such, in the end, while criminal defendants may be considered to be innocent until proven guilty, they also run the substantial risk of being found negligent before being proven guilty.



Daniel E. Cummins is a partner in the Scranton law firm of Cummins Law where he focuses his practice in automobile accident litigation matters. Contact him at dancummins@cumminslaw.net.

Superior Court Adopts Test For Staying a Civil Lawsuit While Criminal Charges Pending

In a case of first impression, the Pennsylvania Superior Court has ruled in Keesee v. Dougherty, 2020 Pa. Super. 64 (Pa. Super. March 16, 2020 Bowes, J., Olson, J., Stabile, J.)(Op. by Olson, J.), that a trial court judge must reconsider her refusal to stay a civil lawsuit while a companion criminal case is pending.

The lawsuit in this matter was brought by a nonunion electrical contractor against an indicted union boss and other defendants.

With its ruling the Pennsylvania Superior Court adopted the six-factor test established by the federal courts for determining whether to stay a civil case pending resolution of a related criminal matter.  The court cited to the federal case of In re Adelphia Communications, No. 02-1781, 2003 WL 22358819 (E.D. Pa. 2003).

The six factors to be addressed by a trial court in determining whether to stay a civil case pending the resolution of a companion criminal case are, as follows:

1.         The extent to which the issues in the civil and criminal cases overlap

2.          The status of the criminal proceedings and whether any Defendants have been indicted  

3.         The Plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the Plaintiff caused by the delay

4.         The burden on the Defendants

5.         The interests of the court

6.         The public interests

In Keesee v. Dougherty, a three-judge Superior Court panel unanimously reversed a decision by the trial court judge who denied the defendants’ motion to stay the proceedings.  The Superior Court remanded the case for further consideration.

The Keesee decision is also notable for the Superior Court's analysis and application of the collateral order doctrine to allow the review of this appeal in the first place.

Anyone wishing to review this decision may click this LINK.


Source:  Article: "Judge Ordered to Reconsider Motion to Stay Civil Suit Against 'Johnny Doc' Pending Criminal Case" by Zack Needles of The Legal Intelligencer (March 18, 2020).

Court Rules That Artful Pleading Cannot Defeat Exclusions Applicable Under Homeowner's Policy

In the case of Carrasquillo v. Kelly and Nationwide Mut. Fire Ins. Co., No. 2720 EDA 2018 (Pa. Super. Nov. 12, 2019 Panella, P.J., Kunselman, J., and Stevens, J.E.) (Op. by Kunselman, J.)(Non-precedential decision), the court addressed issues pertaining to a declaratory judgment action under a homeowner’s policy.

According to the Opinion, the Nationwide insured fatally shot and killed the Plaintiff’s decedent in the insured’s home. The insured later pled guilty to a charge of murder in the third degree. Thereafter, the decedent’s family pursued a wrongful death and survival action.

In response, Nationwide, the carrier who provided homeowner’s coverage on the home where the incident occurred, denied coverage under the intentional acts exclusion and the criminal acts exclusion. A declaratory judgment action was filed to address these issues.

In this declaratory judgment action, the Plaintiff attempted to argue that it had pled negligence allegations in the underlying Complaint such that the exclusions were not applicable. The court disagreed and noted that artful pleading did not serve to avoid the exclusions in this matter.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Benjamin P. Novak of the Lancaster, PA law firm of Fowler, Hirtzel, McNulty & Spaulding for bringing this case to my attention.

Verdict in Favor of Dallas Cowboys Fan Injured At Eagles Game Reversed

In the case of Pearson v. Philadelphia Eagles, LLC, 3053 EDA 2018 (Pa. Super. Oct. 11, 2019 Murray, J., Pelligrini, J., and Strassburger, J.) (Op. by Murray, J.) (Strassburger, J. concurring), the Pennsylvania Superior Court reversed a verdict in favor of the Plaintiff and remanded for the entry of a judgment n.o.v. in favor of the defense in a premises liability case involving a fight at a Philadelphia Eagles verses Dallas Cowboys game. 

According to the Opinion, the Plaintiff wore a Troy Aikman No. 8 jersey to a Cowboys versus Eagles game at Lincoln Financial Field game and was injured when he got into a scuffle in the men's room at halftime of a night time game.

Believe it or not, a Philadelphia County jury entered a substantial verdict in favor of the Plaintiff.  This appeal followed and as noted, the appellate court reversed.

The court noted that, absent a pre-existing duty, the general rule of law in Pennsylvania precludes holding a person liable for the criminal conduct of another. Rather, such a duty may arise from a voluntary undertaking to provide security. However, even providing secure is not deemed under Pennsylvania law to be a guarantee against all third-party criminal activity. 

The court noted that the undisputed evidence in this matter was that restroom fights were infrequent. As such, the court stated that, absent notice of frequent prior incidents on the premises, there was no duty on the landowner to post a guard at every restroom in the sports stadium.

The court additionally rejected any arguments by the Plaintiff that the scope of the Defendant’s undertaking of providing security measures should have been broader than it was.

Anyone wishing to review a copy of the Majority Opinion of this decision may click this LINK.  The Concurring Opinion of Judge Strassburger can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Entrustment Clause of Property Damage Policy Upheld To Preclude Coverage For Acts of Vandalism To Rental Property

In the case of KA Together, Inc. v. Aspen Specialty Ins. Co., No. 18-CV-142 (E.D. Pa. Jan. 24, 2019 Slomsky, J.), the court granted a Defendant carrier’s Motion for Summary Judgment on a property damage insurance claim presented by the Plaintiff for water damages.  

According to the Opinion, the Plaintiff alleged claims for breach of contract and bad faith stemming from a Defendant’s denial of an insurance claim made by the Plaintiff for losses at the Plaintiff’s property.   The Plaintiff had filed the insurance claim for water damage caused by two (2) individuals who had been residing in a third floor apartment on the property.  

The Defendant carrier filed a Motion for Summary Judgment asserting that the Plaintiff’s claims were barred by the “entrustment exclusion” of the insurance policy at issue, which expressly excluded coverage for all losses resulting from dishonest or criminal acts by person to whom the Plaintiff entrusted the property.  

The Plaintiff opposed the Motion for Summary Judgment by arguing that the entrustment exclusion did not apply because the Plaintiff never entrusted the property to the two (2) individuals responsible for causing the water damages.  

By way of further background, the property at issue was a mixed commercial residential building.   There was a rental apartment of the third floor.   The carrier insured the property with a commercial property policy which, as noted, included an “entrustment exclusion” which allowed the carrier to deny coverage for any losses resulting from dishonest or criminal acts by the insureds or anyone to whom the insured entrusted the property for any purpose.  

According to the Opinion, at some point, the person who had signed a Lease for the third floor apartment had his girlfriend move into the apartment.  Thereafter, the tenant and his girlfriend were arrested on separate criminal charges and removed from the property.   

The manager of the property was then made aware that another person claimed that he had signed a sublease for the apartment with the girlfriend.   That person was told that the Lease Agreement with the girlfriend would not be accepted by the landowner as the girlfriend had no authority to sublease the property to that person.  

After that person was asked to leave the premises, the landowner received a phone call the day after the person vacated the premises from the business that operated in the same building at the first and second floor, claiming that there is water flowing and flooding down into the office and store.   

When the manager went to the property, he found that there were three (3) sources of running water with the drains purposefully blocked in the third floor apartment.   The manager called the police and filed an incident report.   Thereafter, the insurance claim was submitted to the carrier.  

The landowner believed that the damage was covered under the policy as an act of vandalism. However, as noted above, the carrier relied upon the entrustment exclusion to deny coverage.   

The court found that the entrustment exclusion was not ambiguous and must be enforced.   The court emphasized that the entrustment exclusion broadly applies to dishonest or criminal acts by “anyone to whom [the landowner] entrust[s] the property for any purpose.”   The court ruled that, under the plain meaning of the policy, the carrier is entitled to summary judgment under the exclusion at issue.  

Anyone wishing to review a copy of this decision may click this LINK

Landlord Not Liable for Criminal Acts Off the Leased Premises

In the case of Bonacci v. Pal, No. 2015-CV-4501 (C.P. Lacka. Co. Aug. 25, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a residential landowner’s demurrer in a wrongful death case on the issue of whether such a landlord may be found liable under Pennsylvania law for a fatal shooting that involved his tenant as an accomplice, but which shooting occurred miles away from the leased premises.  

In his Opinion, Judge Nealon reviewed the law that holds that a landowner in the Commonwealth of Pennsylvania has a duty to protect tenants and third parties from foreseeable criminal attacks on the leased property if the owner had promised or undertaken to provide certain security as an additional precaution.  However, a residential property owner can be liable for physical harm to others outside of the land only if the harm was caused by the dilapidated condition of the structure or a dangerous artificial condition upon it.  

In his research, Judge Nealon found no Pennsylvania case which has imposed liability upon a residential landowner for criminal conduct that causes harm well beyond the geographic boundaries of the leased premises. 

Accordingly, since the fatal shooting at issue in this case occurred more than a mile away from the leased premises, and since the Plaintiff did not allege that the incident resulted from any physical defect in the residential structure or any artificial condition thereon, the court agreed that the Complaint failed to state a cause of action against the Defendant-landowner in this regard, and as such, the Defendant-landowner’s demurrer was granted.  

Anyone wishing to review this decision, may click this LINK.

Judge Zulick Weighs Plaintiff's Right to Ongoing Discovery Against Defendants Facing Criminal Charges in Companion Case

In his recent decision in the case of Liu v. Pi Delta PSI Fraternity, Inc., 302-CV-2015 (C.P. Monroe Co. Aug. 22, 2016 Zulick, J.), Judge Arthur L. Zulick reviewed the law surrounding a Motion to Stay a civil litigation matter pending the disposition of criminal charges asserted against the Defendants in a companion case.  

This matter arose out of fatal injuries sustained by the Plaintiff’s decedent allegedly as a result of hazing incidents with a fraternity.

During the pendency of this civil litigation matter, criminal charges were also proceeding against certain Defendants.  

After the Plaintiffs served discovery on the Defendants, certain Defendants filed a motion seeking to stay the civil litigation matter pending the disposition of their criminal charges.   One basis for the motion was that the Defendants asserted that they would be forced to choose between waiving their constitutional privilege against self-incrimination and also would risk information being used against them in the subject criminal cases.  

Judge Arthur L. Zulick
Monroe County

In his decision, Judge Zulick reviewed the Fifth Amendment and Article 1, Section 9 of the Pennsylvania Constitution regarding the privilege against self-incrimination and its application in civil litigation matters.  

Judge Zulick also found that the question of whether to stay all or part of a civil proceeding because of a pending criminal prosecution requires a balancing of the various interests of the parties.   Judge Zulick noted that, while the Pennsylvania Appellate Courts have not adopted a specific balancing test to be applied in these situations, the federal courts have.   The court cited the factors noted in the case of In Re Adelphia, 2003 WL 22358819 (E.D. Pa. May 13, 2013).

The court applied the following factors in this Lui case:

1.         The extent to which the issues in the civil and criminal cases overlap

2.          The status of the criminal proceedings and whether any Defendants have been indicted  

3.         The Plaintiff’s interests in an expeditious civil proceeding weighed against the prejudice to the Plaintiff caused by the delay

4.         The burden on the Defendants

5.         The interests of the court

6.         The public interests

After applying these factors to the case before him, Judge Zulick issued a split decision, granting the Motion to Stay in part but allowing other parts of discovery to proceed as well.  

Anyone wishing to review Judge Zulick's decision in the Lui case may click this LINK.

Summary Judgment Denied on Vicarious Liability Issues in Shooting Case

In his recent Opinion in the case of Rogers v. Thomas, No. 12-CV-1464 (C.P. Lacka. Co. July 18, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied Motion for Summary Judgment in a shooting case on issues of whether or not a father and the father’s sporting goods business was vicarious liable for a shooting death caused by the father’s son as a result of a fatal shooting.  

The court found issues of fact precluding the entry of summary judgment against the father and/or the sporting goods business Defendants.  

This Opinion provides a thorough review of the law pertaining to vicarious liability for criminal acts of third persons in the employment of others.  

The Opinion also reviews the parameters under which information gathered a deposition in which the shooter Defendant repeatedly asserted his Fifth Amendment privilege against self-incrimination in support of a Motion for Summary Judgment.  

Anyone wishing to review this decision by Judge Nealon may click this LINK.

Mall Employee Can Be Business Invitee in Premises Liability Case

In a recent Lackawanna County Court of Common Pleas decision by a visiting Senior Judge in the case of Young v. Prizm Asset Management Company, No. 2010-CV-8445 (C.P. Lacka. Co. Nov. 4, 2013, Saxton, J), the trial court granted summary judgment in favor of the Defendant landowner in a case in which the Plaintiff, a mall employee, allegedly sustained personal injuries as a result of a criminal assault in the parking garage of the Steamtown Mall in Scranton, Pennsylvania.   

After reviewing the records before it, the trial court had ultimately ruled that there was no evidence to establish a genuine question of material fact as to any alleged duty owed or breached by the Steamtown Mall.  As such, the summary judgment motion was granted at the trial court level.

UPDATE:  This Young decision was appealed and, under an Opinion and Order written by Judge David N. Wecht of the Pennsylvania Superior Court, the decision of the trial court judge granting summary judgment was reversed.

Judge David N. Wecht
Pennsylvania Superior Court

After a thorough analysis of the premises liability law pertaining to the duty owed by landowners to protect business invitees on the premises from the criminal acts of third parties, the Pennsylvania Superior Court in Young v. Prizm Asset Management Company,  2014 Pa. Super. 195, No. 2078 MDA 2013 (Pa. Super. Sept. 9, 2014 Lazarus, J., Wecht, J., Musmanno, J.)(Op. by Wecht, J.), held that the trial court correctly ruled that the Plaintiff, who was a mall employee, could be deemed to be a business invitee under the applicable law set forth in the Restatement (Second) of Torts Section 344.

However, the Superior Court went on to find that  genuine issues of material fact existed to be decided by the jury on whether or not the landowner defendant owed and breached a duty of care to the Plaintiff.  As such, the entry of summary judgment by the trial court in favor of the defendants was reversed and the case remanded.

Should you have a case involving a business invitee plaintiff allegedly injured as a result of criminal acts of a third party, the Young Opinion presents as the latest pronouncement by the Pennsylvania Superior Court of the applicable law and analysis of potential liability on the part of a defendant landowner.

Anyone wishing to review this Opinion may click HERE.

Summary Judgment Granted to Mall in Criminal Assault/Premises Liability Claim

In a recent Lackawanna County decision by Senior Judge Richard Saxton in the case of Young v. Prizm Asset Management Company, No. 2010-CV-8445 (C.P. Lacka. Co. Nov. 4, 2013, Saxton, J), the court granted summary judgment in favor of the Defendant landowner in a case in which the Plaintiff alleged personal injuries as a result of a criminal assault upon the Plaintiff in the parking garage of the Steamtown Mall in Scranton, Pennsylvania.  

According to the Opinion, the Plaintiff, was an employee of a store in the mall and was reporting to work during the afternoon of February 6, 2009, when she was attacked by an unknown, unidentified assailant, who is alleged to have attempted to steal her car.   The assault left the Plaintiff with various injuries for which she alleged that the Steamtown Mall was liable.

After the completion of discovery, the Steamtown Mall filed a Motion for Summary Judgment.   The mall argued that it did not breach any duty to the Plaintiff by allegedly failing to ensure her safety from an unanticipated criminal assault in an area open to the general public and that no act or omission on behalf of the mall was the cause of the Plaintiff’s injuries.  

In its ruling granting the motion, the court relied, in part, on the Restatement (Second) of Torts, §344 which covers liability for a possessor of land who holds a property open to the public for physical harm caused by intentional harmful acts of the third persons.   The court noted that, under the Restatement, a possessor of land is not an “insurer” of safety, but does have a duty to exercise “reasonable care” in affording protection for its business invitees.  

However, under the Restatement, the duty upon the landowner is only created where the landowner knows, or has reason to know that the acts of a third person are occurring or are about to occur which are likely to endanger the visitors safety.   Under this standard, the court was required to determine, as a matter of law, if the landowner knew or should have known that this criminal activity was likely.  

The Steamtown Mall asserted that the assault upon the Plaintiff was the first, and only, such assault of this kind to occur in its history.  

After reviewing the records before it, the Court ultimately ruled that there was no evidence to establish a genuine question of material fact as to any alleged duty owed or breached by the Steamtown Mall.  As such, the summary judgment motion was granted.  

Anyone wishing to review this Opinion in the Young case may click this LINK.. 

 I send thanks to Attorney Daniel D. Stofko, Esquire and David Heisler, Esquire of the Scranton, Pennsylvania office of the law firm of Cipriani and Werner, P.C. for bringing this case to my attention.