Jones v. Levin, 142 WDA 2007.

• Decision Date: 31 December 2007
• Docket Number: No. 142 WDA 2007.,142 WDA 2007.
• Citation: Jones v. Levin, 940 A.2d 451 (Pa. Super. Ct. 2007)
• Parties: Constance JONES, and Terry Lee Jones, Appellants v. Robert LEVIN, Administrator D.B.N.C.T.A. of the Estate of Howard Phillip Levin, also known as Howard Levin, Appellee.
• Court: Pennsylvania Superior Court

940 A.2d 451

Constance JONES, and Terry Lee Jones, Appellants v. Robert LEVIN, Administrator D.B.N.C.T.A. of the Estate of Howard Phillip Levin, also known as Howard Levin, Appellee.

No. 142 WDA 2007.

Superior Court of Pennsylvania.

Argued July 11, 2007.

Filed December 31, 2007.

Richard M. Rosenthal, Pittsburgh, for appellants.

Michael E. Lang, Wexford, for appellee.

BEFORE: HUDOCK, STEVENS, and McCAFFERY, JJ.

OPINION BY McCAFFERY, J:

¶ 1 Constance Jones and Terry Lee Jones, husband and wife, appeal from the trial court's order granting summary judgment in favor of Appellee, Robert Levin, administrator of the estate of Howard Phillip Levin. Following thorough review of the facts and applicable law, we reverse and remand.

¶ 2 The relevant facts and procedural history underlying this appeal are as follows. In December 2002, Constance Jones (hereinafter "Appellant") fell on ice that had accumulated in a parking lot adjacent to the rear entrance of the Levin Furniture Store in Monroeville, Pennsylvania, thereby sustaining personal injuries. The property on which she fell was owned by the estate of Howard Levin (hereinafter "the Levin Estate"), and had been leased on a month-to-month basis beginning in December 1998, to the family business, Sam Levin, Inc., for the purpose of selling furniture and appliances to the general public through the Levin Furniture Store. Appellant was employed by Sam Levin, Inc., as a salesperson at the Levin Furniture Store, and she was returning to her car after work on the evening that she fell. Appellee, Robert Levin, was both administrator of the Levin Estate and president of Sam Levin, Inc.¹

¶ 3 In December 2004, Appellant and her husband, Terry Lee Jones, (hereinafter "Appellants") filed a complaint in negligence against Appellee in his capacity as the administrator of the Levin Estate. Appellants alleged that Appellee allowed water run-off, snow, and ice to build up in a depression or irregularity in the parking lot, thereby producing a dangerous condition that led to Appellant's injuries. Appellee filed a motion for summary judgment in September 2006, which, following oral argument, the trial court granted. Appellants filed a timely appeal in which they raise the following two issues:

I. Whether the lower court erred and abused its discretion in finding that the "Levin Estate" did not have "control" of/over the premise on which [Appellant] was caused to slip/fall?

II. Whether the lower court erred in holding that the Restatement (Second) of Torts § 359 is inapplicable to employees of a tenant that are injured on a portion of the leased property that is held open for the admission of the public?

(Appellants' Brief at 4).²

¶ 4 In reviewing an order granting summary judgment, our scope of review is plenary, and our standard of review is the same as that applied by the trial court. Lackner v. Glosser, 892 A.2d 21, 29 (Pa.Super.2006). Our Supreme Court has stated the applicable standard of review as follows:

[A]n appellate court may reverse the entry of a summary judgment only where it finds that the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. In making this assessment, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. As our inquiry involves solely questions of law, our review is de novo.

Payne v. Commonwealth Department of Corrections, 582 Pa. 375, 383, 871 A.2d 795, 800 (2005) (citation omitted).

¶ 5 Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. Lackner, supra at 29; see Pa.R.C.P. 1035.2.³ If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied. Lackner, supra at 29

¶ 6 To prevail in a negligence suit, the complaining party must prove four elements:

1. A duty or obligation recognized by law.

2. A breach of the duty.

3. Causal connection between the actor's breach of the duty and the resulting injury.

4. Actual loss or damage suffered by complainant.

Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa.Super.2005), appeal denied, 587 Pa. 731, 901 A.2d 499 (2006) (citation omitted and emphasis removed).

¶ 7 As a general rule, a landlord out of possession is not liable for injuries incurred by third parties on the leased premises because the landlord has no duty to such persons. Dorsey v. Continental Associates, 404 Pa.Super. 525, 591 A.2d 716, 718 (1991); Kobylinski v. Hipps, 359 Pa.Super. 549, 519 A.2d 488, 491 (1986); Henze v. Texaco, Inc., 352 Pa.Super. 538, 508 A.2d 1200, 1202 (1986) (citing, inter alia, Restatement (Second) of Torts § 356 (1965)). This general rule is based on the legal view of a lease transaction as the equivalent of a sale of the land for the term of the lease. Deeter v. Dull Corporation, Inc., 420 Pa.Super. 576, 617 A.2d 336, 339 (1992). Thus, "liability is premised primarily on possession and control, and not merely [on] ownership." Id. In Kobylinski, supra, this Court relied on the general rule to reverse a judgment against a landlord out of possession, after, he had been found liable in the death of a visitor to a leased residence who had fallen down an unguarded, unlit stairwell on the leased premises. Importantly, the tenant in Kobylinski had sole possession of the leased premises for use as a private residence and the decedent was a social guest, or licensee. Id. at 489, 492-93.

¶ 8 There are a number of exceptions to the general rule of non-liability of a landlord put of possession, one of which is particularly relevant in the instant case: the landlord may be liable if he or she has reserved control over a defective portion of the leased premises or over a portion of the leased premises which is necessary to the safe use of the property (the "reserved control" exception). Deeter, supra at 339; Smith v. M.P.W. Realty Company, Inc., 423 Pa. 536, 539, 225 A.2d 227, 229 (1967); Dorsey, supra at 718; Henze, supra at 1202-03; Restatement (Second) of Torts § 361. The reserved control exception is most clearly applicable to cases involving "common areas" such as shared steps or hallways in buildings leased to multiple tenants. See Pagano v. Redevelopment Authority of Philadelphia, 249 Pa.Super. 303, 376 A.2d 999, 1007 (1977); see also Dorsey, supra at 720. However, the applicability of the exception is not limited to such well-defined "common areas." Our Supreme Court invoked the reserved control exception in a case involving an allegedly defective radiator in one tenant's unit of a building occupied by several commercial tenants, after the landlord-owner of the building was sued for negligence by a tenant who had been seriously burned by steam from the radiator, See Smith, supra at 538-39, 225 A.2d at 228-29. Importantly, the entire building was served by a central steam-heating system, which was controlled and operated by the landlord. As our Supreme Court explained,

where the landlord retains control of a part of the leased premises, which is necessary to the safe use of the leased portion, he is liable to the lessee and others lawfully on the premises for physical harm caused by a dangerous condition existing upon that part over which he retains control, if by the exercise of reasonable care he could have discovered the condition and the risk involved, and made the condition safe.

Smith, supra at 539, 225 A.2d at 229 (citing Restatement (Second) of Torts § 361 and also noting that § 361 had previously been applied to plumbing and heating systems over which the landlord had retained control).

¶ 9 Finally, we consider several principles relevant to the formation of a landlord-tenant relationship. Our Supreme Court has long held that "[t]he relation of landlord and tenant is always created by contract, either express or implied. It cannot exist without such contract[.]" In re Wilson's Estate, 349 Pa. 646, 649, 37 A.2d 709, 710 (1944) (citation omitted); see also J.K. Willison, Jr. v. Consolidation Coal Co., 536 Pa. 49, 54, 637 A.2d 979, 982 (1994) (reiterating that "[a] lease is in the nature of a contract and is controlled by principles of contract law.") The lease-contract provides for "possession of lands in consideration of rent to be paid therefor." Wilson's Estate, supra at 649, 37 A.2d at 710; see also 2401 Pennsylvania Avenue Corp. v. Federation of Jewish Agencies of Greater Philadelphia, 319 Pa.Super. 228, 466 A.2d 132, 137 (1983) ("The obligations of the tenant to pay rent reserved in the lease is at the very heart of the landlord-tenant relationship.") However, it is important to note that the payment of rent is not in all cases essential to the creation of a landlord-tenant relationship. Pagano, supra at 1004 (quoting Wilson's Estate, supra). The courts have in certain cases concluded that a lease existed despite the lack of rent paid, but in such cases, there was evidence of some form of rent substitute, i.e., an alternative benefit or return to the landlord, offered and accepted as consideration. Id. at 1006, 376 A.2d 999 (discussing examples of rent substitutes).

¶ 10 We turn now to the case sub judice, first addressing Appellants' contention that there is a genuine issue of material fact as to what entity exercised control over the premises on which the accident occurred. We must agree with Appellants' contention. In Appellants' complaint, they alleged that the property in question was owned by the Levin Estate and was in the possession and control of Appellee, as administrator of the Levin Estate....