Summary Judgment Granted to Gym and Landlord in Slip and Fall Case

In the case of Rifkin v. Fitness International, LLC, No. 19-CV-5686 // 20-CV-4547 (E.D. Pa. June 15, 2022 Sitarski, J.), the court granted summary judgment in favor of the possessor of land in this slip and fall case.

According to the Opinion, the Plaintiff slipped and fell in the locker room of the gym.

The court found that, based upon the record developed during discovery, that the out-of-possession landlord did not retain control over the premises and/or the area where the Plaintiff fell.   

As such, the court found that the landlord-defendant was entitled to summary judgment.    

 Anyone wishing to review a copy of this decision may click this LINK.  Here is a LINK to the court's companion Order.

In a separate Opinion issued by the same court in the same case on the same date, the court granted summary judgment to the gym, which was the tenant-defendant, as well.

In that decision, the court initially noted that issues of fact on the issue of whether the Plaintiff had signed a waiver form when he joined the gym precluded the entry of summary judgment in favor of the gym in that regard.  

However, the court found that the tenant-defendant was entitled to summary judgment on other grounds.

In its decision, the court stated that, absent any evidence of prior similar incidents in the same location, a Plaintiff cannot establish actual notice on the part of the possessor of land in a slip and fall case.

The court additionally found that the Plaintiff failed in proving any constructive notice in this case where the Plaintiff did not know what caused him to fall, let alone how long any such condition was present.

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


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.

Source of image: Photo by Ron Lach on www.pexels.com.

Pennsylvania Superior Court Addresses Validity of a Concise Statement of Matters Complained of on Appeal; Also Upholds Exculpatory Clause in a Lease

In the case of Keystone Specialty Services Co. v. Ebaugh, No. 1289 WDA 2020 (Pa. Super. Nov. 22, 2021 Olson, J., Nichols, J., and Collins, J.) (Op. by Collins, J.), the Pennsylvania Superior Court affirmed the entry of summary judgment in favor of landlord Defendants in a breach of contract and negligence action that the Plaintiff filed.

The case arose out of alleged damage to equipment and other personal property that the Plaintiff stored in a building owned by the landlord. The Plaintiff’s property allegedly sustained water damage from water flowing from a broken pipe in the building.

The landlord Defendants asserted that exculpatory provisions in the lease agreement protected the landlords from any liability exposure. The trial court entered summary judgment on the basis of the exculpatory clauses and the Plaintiff eventually appealed.

With regard to an appellate procedure issue of note, the court found fault with the Plaintiff’s sparse Concise Statement of Errors Complained of on Appeal required by Pa. R.A.P. 1925(b). The Plaintiff had responded that it was unable to discern from the lower court’s Order as to the reasons relied upon by the trial court in entering its decision.

In this regard, the Pennsylvania Superior Court noted that, if a party feels that it cannot discern the basis for the trial court’s Order sufficiently in order to identify the issues that the party intends to raise on appeal, the party is required to preface the [Rule 1925(b)] Statement with an explanation as to why the Statement has identified the errors only in general terms.  See Pa. R.A.P. 1925(b)(4)(i).

On this basis, in terms of the Plaintiff’s failures with its Concise Statement, the court found that the Plaintiff’s appeal was barred by the Doctrine of Waiver. The Pennsylvania Superior Court also went on to note that the Plaintiff’s appeal failed on the merits in any event.

In this regard, the court upheld the exculpatory clause relied upon by the Defendant. The court noted that exculpatory clauses and contracts are valid (1) where they do not contravene public policy, (2) where the clauses are between persons relating entirely to their own private affairs, and (3) where each party was a free bargaining agent to the agreement. See Op. at 9.

As such, the trial court’s entry of summary judgment was affirmed by the Pennsylvania Superior Court for these multiple reasons noted.

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

Judge Nealon Addresses Potential Liability of Out-of-Possession Landlord in a Dog Bite Case

In the case of Vicki v. Altuner, No. 17-CV-3602 (C.P. Lacka. Co. March 12, 2020 Nealon, J.), the court addressed issues of liability with respect to a dog’s owner and an out-of-possession landlord in a case where a jogger was allegedly attacked and bitten by unrestrained pitbulls.

According to the Opinion, there was evidence in the case that the landlord had prior knowledge that the dog had bitten and attacked the landlord’s handyman twenty (20) days since the incident.

The out-of-possession landlord Defendant filed a Motion for Summary Judgment asserting that she did not owe any duty of care to the jogger since she did not have any prior knowledge as to the pitbulls’ dangerous propensities. In the alternative, the out-of-possession landlord asserted that she cannot be found to be breached any duty given that she had already initiated an eviction proceeding against the owner for non-payment of rent at the time the tenant’s dog attacked the jogger. 

The Motion for Summary Judgment was denied as the court found that there were issues of fact on the liability questions presented.

Judge Nealon noted that, even though the landlord had already begun eviction proceedings, the landlord also had other avenues available to remove the dogs from the premises after the prior attack upon the handyman, such as seeking immediate injunctive relief or the intervention of a local animal control authority in order to have the dogs removed. Given this issue, and other issues noted in the Opinion, the summary judgment was denied. 

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

Dog Bite Claims Against Landlord Dismissed in Monroe County

In the case of Gallo v. Precise Moments Academy, No. 904-Civil-2018 (C.P. Monroe Co. Jan. 4, 2019 Harlacher Sibum, J.), Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas ruled that a landlord was not liable under state dog law or agency principles where a tenant's dog bit a child at a leased daycare facility.  

The court found that the Plaintiff failed to allege specific facts to support any claims of negligence or punitive damages against the landlord.  

According to the Opinion, the Plaintiffs were parents of a minor child who attended a daycare facility.   A dog owned by one of the tenants who ran the facility bit the minor child while she was at the daycare resulting injuries to the child’s face. 

In addition to suing the tenants, the Plaintiffs sued the landlord who owned the property on which the daycare facility was located.   The Plaintiffs alleged that the landlord negligently and recklessly maintained dangerous dogs on the daycare premises despite the substantial risk of injury to children.  The case came before the court by way of the landlord’s Preliminary Objections.  

Initially, the landlord asserted that the dog law in Pennsylvania did not apply given that the landlord was not an “owner” of the dog as required for the application of that statute which required dog owners to confine, secure or otherwise control their dogs.  

The court agreed with the landowner Defendant in this regard and noted that prior case law had held that a landlord out-of-possession, without more, was not considered the owner of a tenant’s dog under that dog law.   The court stated that the Plaintiffs presented no other facts in support of its legal conclusion assertions in the Complaint that the landlord housed and kept the dog.  

The court also agreed with the landlord Defendant’s argument that the Plaintiffs’ allegations of agency should be stricken because there were no facts to support allegations of vicarious liability.   The court noted that the Complaint did not identify any agency relationship between the landlord and its tenants.  

Judge Harlacher Sibum additionally found that the catch-all phrasing of negligence in the Plaintiff’s Complaint against the landlords was insufficient under Pennsylvania law.  

The court also agreed with the landlord Defendants’ contention that the Plaintiffs’ claims for punitive damages should be stricken for insufficient specificity where the Plaintiff failed to allege that the landlord acted with any bad motive.   The court reiterated that the landlord did not have any control over the daycare premises or any authority to regulate the tenant's pets.   

As such, Judge Harlacher Sibum concluded that the landlord’s conduct was not reckless or wanton as a matter of law.  Accordingly, the Preliminary Objections filed by the out-of-possession landlord Defendant were sustained and the claims against it dismissed.  

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 5, 2019).

Summary Judgment Granted to Tenant Store Where Plaintiff Fell on Common Sidewalk

In the case Monti v. Pet Supplies Plus, LLC, No. 8681-CV-2015 (C.P. Monroe Co. Dec. 28, 2018 Harlacher Sibum, J.), the court granted summary judgment in favor of a retail store tenant in a slip and fall action where the Plaintiff fell in an area of a retail establishment comprised of common areas.

At the time of the Plaintiff's trip and fall, the Plaintiff was exiting the store when the wheel of her walker allegedly became lodged in a dip in the sidewalk.  The court found under the facts presented that sole liability for the exterior sidewalks on the leased property rested with the landlord.   

In so ruling, Judge Harlacher Sibum relied upon the Pennsylvania Supreme Court decision in Leary v. Lawrence Sales Corp., in which that court laid down the principle of law that “[w]here the owner of real estate leases various parties thereof to several tenants, but retains possession and control of the common passage-ways aisles which are to be used by business invitees of the various tenants, the obligation of keeping the common aisles safe for the business invitees is imposed upon the landlord and not upon the tenants, in the absence of a contrary provision in the lease or leases.” 

In this Monti case before Judge Harlacher Sibum, the court noted that under the lease, the tenant and its customers were granted the privilege to use the common areas.  However, the lease provided that the landlord retained certain duties including maintaining those common areas of the leased property.  

Based upon this unambiguous language in the lease and the lack of any applicable lease provision to the contrary, and the application of the precedent in the Leary case, the court ruled that the landlord had sole liability for the exterior sidewalks on the leased property.  As such, the tenant was granted summary judgment on the premises liability issues presented.   

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 5, 2019). 

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.

Landlord Secures Summary Judgment In Slip and Fall Case Where Court Found Duties Owed by Tenant

In a recent decision by the Pennsylvania Commonwealth Court in the case of Stuski v. Philadelphia Auth. 4 Indev., No. 1979 C.D. 2016 (Pa. Cmwlth. May 25, 2017 Covey, J.), summary judgment was affirmed in favor of a landlord Defendant in a slip and fall matter.  

The court ruled that the tenant and not the landlord had the duty to remove snow and ice from the premises where the tenant had exclusive control over the premises where the slip and fall occurred.  The court additionally noted that the tenant was obligated under the lease to perform snow and ice removal and had taken actual responsibility for that task.  

As such, the entry of summary judgment by the trial court was affirmed.  

 Anyone wishing to review a copy of this case may click HERE.

 

Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly (June 20, 2017).  

 

Superior Court Finds Landlords May Be Liable For Failure to Install Smoke Detectors in Leased Premises

In the case of Echeverria v. Holley, 2016 Pa. Super. 119, No. 1342 WDA 2014 (Pa. Super. June 14, 2016 Olson, Gantman, Fitzgerald, J.J.) (Op. by Olson, J.), the Pennsylvania Superior Court ruled that a landlord may be held liable for failing to install smoke detectors under the general rule that landlords owe a duty to protect tenants from injury or loss arising out of a negligent failure to maintain a rental property in a safe condition. 

The court noted that, since smoke detectors were required by law, failure to install them could be a negligent failure to maintain the property in a safe condition.  

The court also emphasized that claims of negligence and negligence per se are significantly different claims.   The court ruled that an amendment seeking to add a negligence per se claim to the Complaint after the expiration of the statute of limitation was barred as a matter of law where that particular claim did not relate back to another negligence claim pled.

The court also otherwise indicated that, to the extent that a claim for implied warranty of habitability was pled in a landlord-tenant personal injury context, only contract remedies would be available under that theory and not tort damages for personal injuries. 

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

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

Pennsylvania Superior Court Reviews Liability of Landlord-Out-of-Possession in Slip and Fall Case (Non-precedential)

In recent non-precedential opinion in the case of Mills v. Gubbio’s, LLC 1907 MDA 2015 (Pa.Super. June 28, 2016 Stabile, Platt, Strassburger, J.J.)(Op. by Strassburger, J.), the Pennsylvania Superior Court affirmed Lackawanna County Court of Common Pleas Judge Terrence R. Nealon's decision to enter summary judgment in favor of the defense in a slip and fall matter.

In affirming the trial court decision below, the Superior Court reviewed the current status of the law of liability of a landlord-out-of-possession, including the reserved control exception and the public use exception to those rules of liability.

Also of note is the fact that the Superior Court reaffirmed that the Nanty-Glo Rule does not prevent the party moving for summary judgment from relying upon the testimony of an adverse party, or that adverse party's witnesses, in support of the motion as such admissions by an adverse party or its witnesses is considered to be an "unconditional surrender" by that party or witness on the facts admitted.

While a Plaintiff and a Defendant are obviously adverse parties, this decision affirms Judge Nealon's finding that Co-Defendants, and their witnesses, may also be considered to be adverse parties to one another in this context.

Anyone wishing to review this non-precedential decision may click this LINK.

Liability of Landlord Out-Of-Possession In Premises Liability Matters

In his recent decision in the case of Mills v. Gubbio’s, LLC., No. 2013-CV-2940 (C.P. Lacka. Co. Oct. 2, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a Defendant landlord’s Motion for Summary Judgment in a slip and fall case.  

This personal injury action arose out of an alleged slip and fall on an icy sidewalk.

According to the Opinion, the property owner/landlord out of possession filed a Motion for Summary Judgment on the grounds that he did not have a duty to maintain the sidewalk or remove ice and snow from the sidewalk.

The Opinion provides a detailed summary of the current status of the law pertaining to the liability of a landlord-out-of possession in premises liability matters.

The Opinion confirmed that it was undisputed between the parties that the out-of-possession landlord leased the entire property to two tenants. It was also confirmed in the Opinion that the terms of the written Release required that the first floor commercial tenant keep sidewalks free from snow and ice. Both tenants were noted to have also confirmed in discovery that the first floor commercial tenant was solely responsible for the removal of snow and ice from the sidewalk and that the commercial tenant had hired a third party to shovel and salt the sidewalks.

Based on these facts, the Court ruled that, since it was undisputed that the out-of-possession landlord did not retain control over the sidewalks or the common areas and given that the written Lease imposed exclusive responsibility upon the commercial tenant for the removal of snow and ice from the sidewalk areas, the Court found that the out-of-possession landlord did not owe a duty of care to the Plaintiff as a matter of law. Accordingly, the landlord’s Motion for Summary Judgment was granted.

Since the court granted summary judgment on the above issue, the Hills and Ridges Doctrine argument raised was not addressed.

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

Negligence Per Se Doctrine Applied Relative to Maintenance of Smoke Alarms in Fatal Fire Case

In a recent Pike County Court of Common Pleas decision in the case of Tooley v. Mill Rift Inn, Inc., No. 2496-2009 Civil (C.P. Pike Co. Feb. 25, 2015 Kameen, P.J.), President Judge Joseph F. Kameen addressed Motion for Summary Judgments filed by each party in a case arising out of a fatal fire at the Mill Rift Inn in Westfall Township, Pike County, Pennsylvania.   At the time of the incident, the Plaintiff’s decedent resided in the Mill Rift Inn in one of its apartments.  

The issue before the court was whether or not the Plaintiff was entitled to summary judgment under the negligence per se doctrine given the Defendant’s alleged failure to annually inspect the smoke detectors at the Mill Rift Inn in violation of Pennsylvania Code Provisions.

After reviewing the record before the court, Judge Kameen found that the Plaintiff had established that the Defendant’s violation of the applicable law was sufficient to trigger the doctrine of negligence per se.  In his opinion, Judge Kameen set forth the law pertaining to his doctrine and the four (4) elements that a party must meet to establish the application of the negligence per se doctrine.  

Judge Joseph F. Kameen
Pike County

More specifically, the court found that the Defendant’s failure to annual inspect the smoke detectors in the decedent’s apartment and/or to notify her in writing of her own duty to inspect her apartment’s smoke detectors as required by the Pennsylvania Code was indeed a substantial factor in bringing about the Plaintiff’s harms for purposes of the negligence per se analysis.  As such, the Plaintiff’s Motion for Partial Summary Judgment in this regard was granted.  

With regards to the Defendant’s Motion for Summary Judgment which argued, in part, that the Plaintiff was ever a tenant at the Mill Rift Inn, Judge Kameen found that the record established that an oral agreement existed that was sufficient to create a landlord/tenant relationship under Pennsylvania law.   The court found that the verbal agreement with regards to the Plaintiff living in the apartment was sufficient to establish the existence of a month-to-month rental agreement between the parties under Pennsylvania law.  

The court also denied the Defendant’s Motion for Summary Judgment based upon its status as a landlord out of possession.  

First of all, the court noted that there were no support for this argument by the Defendant with respect to the control of the “hard wired” electrical systems on the premises such that the landlord could be considered a landlord out of possession.  

Judge Kameen also noted that, even if the court found that the Defendant was a landlord out of possession, the reserved control exception of the general rule that landlords out of possession are protected from liability was found to apply where the hardwired items such as the smoke detectors were not serviceable by the tenants who lack lawful excess to the main electrical lines in the building.   The court also noted that the Plaintiff had no right of access to the basement where the fuse boxes were located.  

Accordingly, there were no reasonable expectation that the decedent would have been able to repair the smoke detectors in her apartment.   As such, the Defendant’s Motion for Summary Judgment in this regard was denied.  

Judge Kameen did grant the Defendant’s Motion for Summary Judgment on the Plaintiff’s allegations of a breach of implied warranty of habitability as there was no evidence to show that the tenant gave notice to the landlord of any alleged defect or condition such that the landlord had a reasonable opportunity to make the necessary repairs prior to the incident.   Here, there was no evidence that the tenant notified the Defendant of any defects at issue in this case, including the allegedly non-functional smoke detectors.   As such, this claim was stricken under the summary judgment standard. 


I send thanks to Attorney Michael Foley of the Foley Law Firm in Scranton, Pennsylvania for providing me with a copy of this Opinion in the case in which he is the Plaintiff’s counsel.  

 Anyone desiring a copy of this may email me at dancummins@comcast.net.