Judge Nealon of Lackawanna County Recites the Law of Invitees, Licensees, and Trespassers

As noted in the case below, a plaintiff's ability to recover in a premises liability case may turn on whether that plaintiff is deemed to be a business inviteee, licensee, or a trespasser.

In the case of Giles v. Pennsylvania American Water Co., No. 17-CV-5616 (C.P. Lacka. Co. Jan. 23, 2020 Nealon, J.), the court addressed Preliminary Objections filed by a landowner Defendant in a case involving a minor Plaintiff who was allegedly injured as a result of a fall on the Defendant’s property surrounding a reservoir.

In his Opinion, Judge Terrence R. Nealon provided a detailed recitation of the current status of premises liability law and the issues of whether a Plaintiff may be deemed as an invitee, licensee, or trespasser under the care presented. In this matter, the issue appeared to center around whether the Plaintiff was a licensee or a trespasser.

Finding that the Plaintiff had alleged sufficient facts to get beyond a demurrer, the court denied the Defendant’s Preliminary Objections in this regard.

The court also denied the Preliminary Objections filed by the Defendant against the Plaintiff’s general allegations of reckless and willful conduct.

Judge Nealon once again ruled, as he has done on numerous occasions in the past, that such claims may be generally pled under the Pennsylvania Rules of Civil Procedure.

The court noted that, upon the completion of discovery, the Defendant could test the of the validity of the punitive damages claim by way of a Motion for Summary Judgment.

The court also noted that the Plaintiffs would not be able to obtain any financial wealth discovery against the Defendant under Pa. R.C.P. 4003.7 unless the Plaintiff first demonstrated a prima facie right to recover punitive damages under Pennsylvania law.

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


If you need help bringing your premises liability case to close by way of a settlement at a Mediation, please do not hesitate to contact me to schedule a Mediation with Cummins Mediation.  I can be reached at dancummins@cumminslaw.net or at 570-319-5899.

Licensee vs. Invitee Status in a Slip and Fall Case

In its recent decision in the case of Hackett v. Indian King Residents Ass’n., No. 3600 EDA 2017 (Pa. Super. Aug. 29, 2018 Shogan, J., Gantman, J., and Platt, J.), the court affirmed the denial of a Plaintiff’s post-trial motions after a defense verdict in a slip or trip and fall case.   

In this matter, the Plaintiff alleges she tripped and fell in a common area of a community.   One of the main issues in this case was whether the Plaintiff should be deemed to be a licensee or an invitee.

The Plaintiff asserted that, since she had paid common area maintenance fees to the residents’ association, she should be considered to be a business invitee.

The Superior Court disagreed and found that the mere paying of common area maintenance fees did not create invitee status under Pennsylvania law.   Rather, the Plaintiff was deemed to be licensee since, as a resident of the community, she used the common areas by permission, and not by the Defendant’s invitation.  

The court also noted that an invitation must be more than mere permission to access common areas in order to make one a business invitee in this context.  

Also of note in this decision was the court’s ruling that the Condominium Act does not apply to homeowners’ associations.

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

The Assumption of Risk Doctrine is Alive and Well in Pennsylvania

The following two recent cases confirm that the Assumption of Risk Doctrine remains alive and well in Pennsylvania. Copies of these cases may be secured from the Pennsylvania Law Weekly for a small fee by calling 1-800-276-7427 and providing them the below noted PICS Case Nos.

Cochrane v. Kopko, 2009 WL 1531646, PICS Case No. 09-0956 (Pa.Cmwlth. June 3, 2009)

Recognizing the continuing validity of the assumption of the risk doctrine in Pennsylvania, the Commonwealth Court affirmed a trial court's decision that a county did not breach any duty of care to a prison inmate injured in his cell. In so ruling, the appellate court noted that saying that the inmate assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor of land to protect an invitee against such dangers.

Concisely, in Cochrane, the court found that an inmate assumed the risk of his own injuries when he allegedly tried to slide open his malfunctioning cell door from his top bunk bed as opposed to getting down off the bed and too the floor first and attempting to open the door from that safe position. The inmate fell off his top bunk, hit the sink in the cell and struck the cell door, allegedly resulting in personal injuries to the inmate.

Apparently, the inmate had chosen not to come down off the bed because that process involved putting a foot down on a sink, sliding down and putting his other foot on the sink, then stepping down onto the toilet, and finally to the floor.

There's a joke in there somewhere, I just can't flush it out at the moment.


Vinikoor v. Pedal Pennsylvania, Inc., 2009 WL 1544267, PICS Case No. 09-0948 (Pa.Cmwlth. June 4, 2009)

In this separate case confirming that the assumption of risk doctrine remains a viable defense in Pennsylvania, the Commonwealth Court held that a participant in a bike tour assumed the risks inherent in biking on highways.

In Vinikoor, the defendant bike tour organizer had created a route and provided a map to the cyclists in which certain caution areas were noted. The map did not note a caution at the intersection where the front tire of the Plaintiff's bike caught a groove and caused the Plaintiff to crash and be injured.

The court found that the Plaintiff knew, or should have known that falling and encountering defective road conditions were part of the risks of cycling on roadways and, therefore, the Plaintiff was found to assume the risks associated with that activity.

The court also noted that the no-duty rule under the assumption of risk doctrine provides that a defendant owes no duty to warn, protect or insure against risks that are common, frequent, expected, or a known part of the activity at issue.

As such, the Commonwealth Court affirmed the entry of summary judgment in favor of the bike tour operator for these reasons as well as others.


For a more detailed discussion of the Assumption of Risk Doctrine I invite you to click on the following link to take you to my JDSupra.com Profile and Documents to review an article of mine entitled "Dead or Alive? The assumption of risk doctrine in Pennsylvania" which appeared in the July 31, 2006 issue of the Pennsylvania Law Weekly and summarized the status of the doctrine in Pennsylvania: http://www.jdsupra.com/post/documentViewer.aspx?fid=8a0f9813-ab34-44f8-b016-8e58321faf82.