Issues of Fact Preclude Summary Judgment Against Landlord-Out-Of Possession In Parking Lot Slip and Fall Case

In the case of Alexander v. ECM Realty Management, Inc., No. CV 24-00061 (C.P. Lyc. Co. 2025 Carlucci, J.), the court denied a Motion for Summary Judgment in a slip and fall case involving ice and/or snow in a parking lot area.

According to the Opinion, the Plaintiff slipped and fell at the rear of a property that her husband rented from the Defendants. The Plaintiff had previously been a tenant of the same premises.

The court noted that, while it was apparently undisputed that the Defendants were landlords out-of-possession of the apartment, the Plaintiff was maintaining that the Defendants retained control over the parking lot area.

In this matter, the court agreed that, where a landlord leases out some areas of a property, but retains control over others, a landlord may be found negligent in the maintenance of the areas over which the landlord retained control. 

Here, however, the court noted the record was clear that the Defendants were landlords out-of-possession relative to the apartment.

The dispute in this matter was whether the parking space where the Plaintiff slipped and fell should be considered a portion of the leased apartment under the control of the tenant, or a “common area” over which the landlord Defendant had retained control.

The court found that the issues of fact in this regard prevented the entry of summary judgment. As such, the Defendant's Motion was denied.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Aug. 14, 2025).

Source of image:  Photo by Erik McLean on www.unsplash.com.

Premises Liability Claim Against An Out-of-Possession Landlord Allowed To Proceed

In the case of Poplawski v. Jiunta, No. 3338 CIVIL 2023 (C.P. Monroe Co. Aug. 28, 2023 Williamson, J.), the court denied a Defendant’s Preliminary Objections to a Plaintiff’s Complaint in which the Plaintiff alleged that he was injured when a large mirror fell on him in a business leased from the Defendant landowner.

The Defendant asserted that, as an out-of-possession landlord Defendant, the Plaintiff had failed to state a cause of action against that particular Defendant.

The court noted that a Complaint must not only give notice of a claim but also summarize the essential facts at issue. 

In this case, the Complaint alleged that the Defendant was the owner of the building where the Plaintiff was a customer, that a defect existed on the property in the form of an allegedly improperly secured mirror, and that the Plaintiff suffered injury when the mirror fell. 

The court found that these factual allegations were sufficiently specific to assert a negligence cause of action against the Defendant landlord.

Judge David J. Williamson
Monroe County

While Judge David J. Williamson of the Monroe County Court of Common Pleas noted that, as a general rule, a landlord out-of-possession is not liable for injuries on a lease premises unless certain exceptions applied, he could not sustain the landlord Defendant’s Preliminary Objections in this case. The court found that it remained unclear as to whether or not any of the exceptions to the rule applied. 

As such, the court allowed the case to proceed into discovery so that there could be a determination if there were any additional facts to clarify the Defendant’s role and potential responsibility.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 19, 2023).

Source of image:  Photo by furkanfdemir on www.pexels.com.

Attempt to Extend Medical Malpractice Liability to a Landlord of a Nursing Home Rejected

In the case of Drake v. Schwartz, No. 2019 - 07345-PL (C.P. Chester Co. Dec. 12, 2022 Binder, J.), an interesting and innovative theory of liability in a medical malpractice case was attempted by a plaintiff but rejected by the court.

In this case, the court granted the Motion for Summary Judgment filed by the Defendant, who was the owner and out-of-possession landlord of a property leased to a nursing home. 

The landowner Defendant had been brought into this nursing home negligence case under a theory that one of the dangerous conditions that caused the patient’s injuries was a condition of severe understaffing at the nursing home that was caused, in part, by financial hardships imposed on the tenant nursing home by its lease agreement with the landlord.

The trial court noted that the issue presented was one of first impression. In its filings, the Plaintiffs acknowledged that they had no authority for extending a landlord’s control over a dangerous condition to a lease that was allegedly unduly economically burdensome to a tenant.

The court declined to create a new avenue for liability against the out-of-possession landlord based solely on a tenant’s invitee alleging that the tenant’s lease was overly costly or burdensome.

As such, the Defendants’ Motion for Summary Judgment was granted.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 22, 2023).

Source of image:  Photo by RDNE Stock Project on www.pexels.com.

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.

Preliminary Objections by Out-of-Possession Landlord Sustained in Part and Overruled in Part in Dog Bite Case

In the case of Rodgers v. Guerrieri, No. 1526 of 2020 G.D. (C.P. Fayette Co. April 1, 2021 Vernon, J.), the court granted an out-of-possession landlord’s Preliminary Objections to a Plaintiff’s dog bite Complaint. However, the right to amend was granted to the Plaintiff.

According to the Opinion, a minor Plaintiff was attacked by a dog on the premises. In addition to suing the owners of the dog, the Plaintiffs also sued the out-of-possession landlord Defendant.

The out-of-possession landlord Defendant filed Preliminary Objections on various grounds.

The court sustained the landlord Defendant’s Preliminary Objections with respect to the claims of negligence given that the Plaintiff only utilized conclusory allegations.

However, the court denied the Motion of the out-of-possession landlord Defendant to strike the claim for punitive damages. While the court found that the allegations of punitive damages set forth under a separate count was procedurally improper, the court noted that, if the Plaintiff included allegations of outrageous conduct or reckless indifference, a punitive damages claim would be pursued under the facts presented.

The court noted that, where an out-of-possession landlord had knowledge of the presence of a dangerous animal on the premises and had the right to control or remove the animal by retaking possession of the premises, the landlord could be held liable for injuries caused by the animal.

As noted above, the Preliminary Objections of the landlord Defendant sustained but the Plaintiff was allowed to file an Amended Complaint.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 27, 2021).

Source of Image: Photo by Julissa Helmuth from Pexels.com.

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 Denied in Dog Bite Case, But Punitive Damages Claim Dismissed

In the case of Pollack v. Shell, No. 14-CV-8009 (C.P. Lacka. Co. Aug. 7, 2018 Nealon, J.), the court addressed theories of liability asserted against an out-of-possession landlord in a dog bite case involving a pit bull.

Judge Terrence R. Nealon
Lackawanna County

 Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the current status of Pennsylvania law in this regard and noted that, in order for liability to rest against an out-of-possession landlord in this context, a plaintiff must prove that the out-of-possession landlord had actual knowledge of the presence of the animal on the premises and possessed the right to control or remove the animal by retaking the leased premises.

Here, the court found issues of fact prevented the entry of summary judgment on the negligence allegations asserted by the Plaintiff.  The record contained evidence of alleged knowledge on the part of the landlord of prior attacks/bites by the dog along with evidence that the landlord had the right to retake the premises from the tenant and did not do so.

However, the court did grant the Defendant's Motion for Summary Judgment against the punitive damages claims as facts only showed alleged negligence on the part of the landlord.  The record was noted to be devoid of any evidence that the landlord acted in conscious disregard of a known risk or harm to others.

Anyone wishing to review this decision may click this LINK.

Have a dog bite case you are trying to settle?  Please do not hesitate to let me know if I can assist as a Mediator.   Resume and fee schedule available by contacting me at dancummins@comcast.net.

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.

Judge Terrence Nealon of Lackawanna County Addresses Landlord-Tenant Liabilities in Slip and Fall Case

In his recent August 25, 2011 decision in the case of Whitney v. Caputo and Noto, No. 2006 - CV - 3124 (C.P. Lacka. Aug. 25, 2011, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the common law maintenance duties of landlords and tenants with respect to snow and ice removal in situations where the landlord leases part of the premises to the tenant but continues to reside in and exercise control over the remainder of the property.

In this case there was no written lease agreement specifying who was responsible for what maintenance.  The landlord owned and lived in the second story of a house where he rented out the first floor to a tenant who used the space as a hair salon. The landlord retained control over the basement, an attached garage, and the parking lot area for the premises as well.

The parking lot was situated in the rear of the property and led to a sidewalk that bordered the front entrance to the building. The tenant's first floor hair salon also had a rear door which exited to the parking lot via five exterior steps

Under the oral lease agreement between the parties, the landlord advised the tenant that he would be responsible for snow removal and maintenance of the parking lot and sidewalk.  In the months leading up up to the Plaintiff's slip and fall incident, the landlord shoveled the rear parking lot, the sidewalk, and the front steps whenever it snowed. The tenant would apply salt to the back steps leading into her salon.

The Plaintiff was a client of the tenant's hair salon. When leaving the premises, the Plaintiff descended the rear steps and, as she placed her right foot on the parking lot pavement and proceeded to move her left foot from the step to the pavement surface, she slipped and fell to the ground.

The court quoted excerpts from the Plaintiff's deposition testimony. A review of that testimony confirmed that defense counsel took painstaking efforts to secure admissions from the plaintiff that she did not slip until after both of her feet had stepped onto the parking lot surface, i.e. after she had entirely separated from the steps leading down from the salon entrance.

In requesting summary judgment, the tenant argued that the landlord retained control over the building except for that portion of the building specifically leased to the tenant, i.e., the first floor hair salon such that the landlord was legally responsible for the condition of the parking lot over which he retained control. The tenant further asserted that she owed no duty to the Plaintiff with respect to the maintenance of the parking lot area. The Plaintiff argued that the tenant was still potentially liable in light of the fact that the tenant took action to maintain the steps.

In this opinion, Judge Nealon reviewed the separate duties owed by a landlord out-of-possession who leases the entire premises to the tenant versus the situation presented in Whitney where the landlord leases a portion of the premises to the tenant yet retains control over a portion of the premises.

Under Pennsylvania law, the issue of which possessor of land owes a duty to third persons is one of control. Generally speaking, a landlord who retains control of a portion of the premises, will remain responsible for that portion. In contrast, an out-of-possession landlord is generally not liable for injuries suffered by third persons on the leased premises unless the owner/landlord retained control over the dangerous portion of the premises involved.

In Whitney, Judge Nealon found that the evidence established that the landlord had leased the first floor to the tenant but retained control of the parking lot which tenant's customers were entitled to use. It was also admitted that the landlord assumed sole responsibility for the maintenance and cleaning of that lot.

Accordingly, Judge Nealon found that, under Pennsylvania law, including the application of the Restatement (Second) of Torts  Section 360 ("Parts of Land Retained in Lessor's Control Which Lessee is Entitled to Use"), only the landlord had a common law duty to clear the parking lot surface. Since it was confirmed that the Plaintiff slipped and fell on the parking lot surface, the motion for summary judgment filed by the tenant Defendant was granted.

This decision by Judge Nealon provides a nice recitation of the law applicable to landlord-tenant liabilities in slip and fall cases and also provides a good reminder as to how important it is to pinpoint the exact location and manner of the plaintiff's slip or trip and fall during the plaintiff's deposition.



Anyone desiring a copy of Judge Nealon's decision from the Whitney v. Caputo and Noto case may contact me at dancummins@comcast.net.