Billie v. Autism Speaks, Inc.
| Decision Date | 13 December 2012 |
| Docket Number | CIVIL ACTION NO. 12-2261 |
| Court | U.S. District Court — Eastern District of Pennsylvania |
| Parties | PAULETTE BILLIE & RONALD BILLIE, h/w, Plaintiffs, v. AUTISM SPEAKS, INC., Defendant |
MEMORANDUM RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiffs, Paullette and Ronald Billie, initiated this premises liability action against Defendant, Autism Speaks, Inc., for an injury Mrs. Billie suffered at a city park during one of Defendant's events. Currently before the Court is Defendant's Motion for Summary Judgment. Defendant argues that it cannot be liable for Mrs. Billie's injury since it did not possess the property where the injury occurred. The Court will GRANT Defendant's motion because a reasonable fact-finder could not infer, based on the evidence in the record, that Defendant had possession of the park. Although Plaintiffs assert a new theory of liability in their brief, this new theory has no viability under the circumstances of this case.
The Defendant, Autism Speaks, is a non-profit organization that raises funds for autism awareness and research. One way Defendant raises funds is by holding "Walk Now for Autism" events where individuals are encouraged, but not required, to solicit donations for walking five kilometers. Deposition of Paulette Billie ("Billie Dep.") at 69:6-9. On April 16, 2011, Defendant held a "Walk Now for Autism" event that was attended by approximately 8,000 to10,000 people at Lehigh Parkway in the City of Allentown. During the event, Mrs. Billie fractured her right ankle when she stepped into a hole in a grassy hill where she parked.
Lehigh Parkway is owned, maintained, and regulated by the City of Allentown. Deposition of Jason Hertz ("Hertz Dep.") at 8-9; Deposition of Richard A. Holtzman ("Holtzman Dep.") at 9. The City granted Defendant a permit to use the park on the day in question. Holtzman Dep. at 10-11. In order to obtain this permit, Defendant was required to obtain insurance coverage for $1,000,000 and produce a certificate showing that the City of Allentown was included as an additionally insured party. Ex. 1 at 6 to Holtzman Dep.
Under the permit, it is undisputed that Defendant "was required to follow the rules and regulations of the Lehigh Parkway . . . and in that connection, Lehigh Parkway was open to the public during the Walk." Def's Mot. ¶ 11. Richard A. Holtzman, the Superintendent of the Parks and Acting Director of Parks and Recreation, testified about the nature of Defendant's permit as follows:
Id. It is also undisputed that the "[t]he City of Allentown Department of Parks and Recreation retained the right to regulate and control the Park by limiting the areas of the Park that could be used for the Walk and imposing limitations1 on the activities that could take place." Def's Mot. ¶ 13.
On the day before the event, Jennifer Smith from Autism Speaks walked through the park with Jason Hertz (the Maintenance Foremen of the Parks Department). The significance of this walk-through is disputed by the parties, specifically whether the City expected Defendant to inspect for holes. Although there is conflicting evidence in the record, it tends to support Defendant's contention that the City held no such expectation. The evidence is as follows:
Jason Hertz, the Maintenance Foremen who went on the walk-through with Smith, answered "no" when asked if there was "any other purpose of your walk-through" besides "showing the folks from Autism Speaks as well as the parking folks where they could park and where the walk could take place?" Hertz Dep. at 57. Hertz also answered "no" when asked: "Is there any maintenance of this field that you as the maintenance foreperson expected Autism Speaks to do in preparation for the walk." Id. at 26. Elsewhere in his deposition, however, Hertz gave a somewhat different answer. When Plaintiffs' counsel asked, "you said you expected [Defendant] to do an inspection for safety, correct," Hertz answered Id. at 52.
Richard Holtzman, the park superintendent, testified that the City never asked, nor expected, the Defendant to inspect the park for safety prior to the event. Holtzman answered "no" when asked: "Are you aware of anything . . . that was told to Autism Speaks requiring them to inspect the parking areas before using them for the walk?" Holtzman Dep. at 14-15. Holtzman also answered "no" when asked: "Are you aware of anybody from your office warning2 Autism Speaks that there were groundhog holes that people should be careful of?" Id. at 16. In addition, when asked "[d]id your department last year expect Autism Speaks to go through the park the day before looking for any holes, either whether they be sinkholes or groundhog holes, and fill them in," Holzman responded Id. at 23.
It is undisputed that the hole which Mrs. Billie stepped in was not discovered during the walk-through. It is not clear, however, that the hole even existed at that time. According to Hertz, the hole was probably not there on April 14 (one day before the walk-through) because it was large enough that it would have likely been discovered when a city employee cut the grass. Hertz Dep. at 24. Further, if the hole was made by a groundhog,3 Hertz noted that it could have been made on the morning of the event, as they can be made in as little as one hour. Id. at 56.
On the day of the event, Defendant provided port-a-johns, tents, and food. The Defendant also utilized a band trailer, which it rented from the City. All of these items were removed from the park following the event.
On April 26, 2012, the Plaintiffs filed their Complaint against Defendant, alleging both negligence and consortium negligence. (ECF No. 1). Plaintiffs amended their Complaint on May 17, 2012, (ECF No. 4), to which the Defendant replied with an Answer, (ECF. No. 6). On August 24, 2012, Defendant filed its Motion for Summary Judgment on both claims. (ECF No. 15). In a telephone conference with the parties on December 12, 2012, the Court asked Plaintiffs' counsel to provide legal authority to support the contentions that Defendant (1) possessed the park and (2) assumed a duty of care to the event participants by going on the walk-through. (ECF No. 26). On December 13, 2012, Plaintiff submitted a supplemental letter addressing both issues. (ECF No. 27).
This Court has jurisdiction over Plaintiff's state-law claims pursuant to 28 U.S.C. §§ 1332(a) and (c). The Billies are Pennsylvania citizens who allege damages in excess of $75,000. Autism Speaks is a non-profit corporation organized under the laws of Delaware with a principal place of business in New York City. Venue is proper under 28 U.S.C. § 1391(b)(2).
A district court should grant a motion for summary judgment if the movant can show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it "might affect the outcome of the suit under the governing law." Id. Under Rule 56, the Court must view the evidence in thelight most favorable to the non-moving party and draw all justifiable inferences in favor of the non-movant. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
"In order for the party to be liable" in a premises liability case, "it must first be a 'possessor' of land." Blackmun v. Federal Realty Inv. Trust, 664 A.2d 139, 142 (Pa. Super. 1995); see also Estate of Zimmerman v. Southeastern Pa. Transp. Auth., 168 F.3d 680, 684 (3d Cir. 1999) (). The Pennsylvania Supreme Court has defined possession in accordance with the Restatement (Second) of Torts § 328E as "authority to manage the land and regulate its use." Stanton v. Lackawanna Energy, Ltd., 886 A.2d 667, 676 (Pa. 2005). According to the Third Circuit, mere "use" of land "does not equate with possession" because "[a]ccess to land need not entail control over land." Zimmerman, 168 F.3d at 685. Even, however, where a party does own or possess land, the Pennsylvania Recreational Use of Land and Water Act ("RULWA") grants immunity from ordinary premises liability claims if the land is (1) open to the public, (2) used for recreational purposes, and (3) free of charge to users. 68 P.S. § 477-6(2); Stanton, 886 A.2d at 675.
Finally, where no duty is owed to a third party, a duty of care may be assumed by engaging in certain affirmative conduct. Pennsylvania courts have adopted § 324A of the Restatement (Second) of Torts, which provides that:
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