Newell v. Mont. W., Inc.

• Decision Date: 19 January 2017
• Docket Number: No. 281 EDA 2016,281 EDA 2016
• Citation: 154 A.3d 819
• Parties: Donald NEWELL, Administrator of Estate of Victor Newell, Deceased Appellant v. MONTANA WEST, INC., Giambrone Enterprises, LP, John Giambrone, Colleen Giambrone, Joseph Giambrone, Angela Giambrone, George Krizenowski, and the Storm Appellees
• Court: Pennsylvania Superior Court

154 A.3d 819

Donald NEWELL, Administrator of Estate of Victor Newell, Deceased Appellant

v.MONTANA WEST, INC., Giambrone Enterprises, LP, John Giambrone, Colleen Giambrone, Joseph Giambrone, Angela Giambrone, George Krizenowski, and the Storm Appellees

No. 281 EDA 2016

Superior Court of Pennsylvania.

Argued August 31, 2016

FILED JANUARY 19, 2017

Adam D. Wilf, Philadelphia, for appellant.

Sharon Piper, Philadelphia, for appellees.

BEFORE: BOWES, J., OTT, J., and SOLANO, J.

OPINION BY SOLANO, J.:

Appellant, Donald Newell, Administrator of the Estate of his father, Victor Newell, Deceased, appeals from the order of August 5, 2014, granting summary judgment in favor of the owners and operators of Montana West, "a restaurant/bar/nightclub" in Richland Township, Bucks County.¹ We affirm.

Victor Newell ("Decedent") attended a concert at Montana West on May 7, 2010. Montana West is located on the west side of State Route 309 (also known as North West End Boulevard), a four-lane public highway maintained by the Commonwealth. Without permission of the landowners, Decedent parked his car on the property of DHL Machine Company and/or DHL Machine International ("DHL"), which is located on the east side of Route 309, across the highway from Montana West. Two bands were performing at Montana West that night. Not wanting to see the second band, Decedent left Montana West at approximately 11 p.m., when the first band's performance ended. While crossing Route 309 to return to his car, he was struck and killed by an automobile driven by Haleigh Oliemuller. Trial Ct. Op., 9/22/14, at 1-2.²

On April 6, 2012, Newell commenced this action by a complaint charging Montana West and DHL with negligence. With respect to Montana West, Newell's theory was that Montana West provided insufficient parking for those patronizing its facility, thereby making it necessary for Decedent to incur the risk of parking on the other side of Route 309 and of crossing Route 309 to reach his car. On August 5, 2014, the trial court entered summary judgment for Montana West and DHL on the grounds that those defendants did not owe a duty to Decedent when he crossed Route 309 and was fatally injured, and that they therefore could not be held liable for breaching any such duty through negligence.³ Newell appeals only from the portion of the trial court's decision entering judgment in favor of Montana West.

Newell raises the following issue for our review:

Did the Trial Court err in finding as a matter of law defendant Montana West did not owe Victor Newell a duty of care when Montana West knew its property could not safely accommodate parking for large crowds, knew during major events its customers would routinely park across a dangerous abutting highway because there were no safe alternatives to park once Montana West's parking lot was full, historically (but not the night in question) took safety precautions for its customers in recognition thereof, and knew a Montana West customer had already been fatally injured crossing the same area of the highway on which Victor Newell was killed?

Newell's Brief at 3-4.

Our standard of review of an appeal from an order granting summary judgment is well settled: "Summary judgment may be granted only in the clearest of cases where the record shows that there are no genuine issues of material fact and also demonstrates that the moving party is entitled to judgment as a matter of law." P.J.S. v. Pa. State Ethics Comm'n , 555 Pa. 149, 723 A.2d 174, 176 (1999) (citation omitted). Whether there is a genuine issue of material fact is a question of law, and therefore our standard of review is de novo and our scope of review is plenary. Chanceford Aviation Props., L.L.P. v. Chanceford Twp. Bd. of Supervisors , 592 Pa. 100, 923 A.2d 1099, 1103 (2007). When reviewing a grant of summary judgment, we must examine the record in a light most favorable to the non-moving party. Id.

As noted, Newell sued Montana West for negligence.

In order to hold a defendant liable for negligence, the plaintiff must prove the following four elements: (1) a legally recognized duty that the defendant conform to a standard of care; (2) the defendant breached that duty; (3) causation between the conduct and the resulting injury; and (4) actual damage to the plaintiff.

Nationwide Mut. Fire Ins. Co. v. Modern Gas , 143 A.3d 412, 415 (Pa. Super. 2016) ; accord Green v. Pa. Hosp. , 123 A.3d 310, 315–16 (Pa. 2015). The trial court entered summary judgment for Montana West because it held that Newell could not satisfy the first element, the existence of a legally-recognized duty. See generallyAlderwoods (Pa.), Inc. v. Duquesne Light Co. , 630 Pa. 45, 106 A.3d 27, 31 (2014) ("duty is an essential element of a negligence claim"). "[W]hether to impose affirmative common-law duties as a predicate to civil liability is a matter of law" as to which our scope of review is plenary. Seebold v. Prison Health Servs., Inc. , 618 Pa. 632, 57 A.3d 1232, 1243 (2012) ; accord Walters v. UPMC Presbyterian Shadyside , 144 A.3d 104, 128 (Pa. Super. 2016) (en banc ).

Newell contends that the trial court erred as a matter of law because Montana West had a duty to protect him from foreseeable harm such as a fatal accident on Route 309. Newell's Brief at 3-4, 7-9. He contends that Montana West had insufficient parking on its premises to accommodate its business invitees and that invitees therefore often parked on the other side of Route 309 to attend Montana West events. Newell claims that Montana West was aware of the dangers posed to its business invitees who parked on the other side of the highway, had taken actions in the past to dissuade invitees from doing so, and had sometimes patrolled the other side of the highway to prevent its invitees from parking there. He argues that Montana West was negligent in failing to take similar actions on the evening of Decedent's death.

In scholarly opinions by the Honorable Marlene Lachman on April 17 and August 5, 2014,⁴ the trial court concluded that Montana West had no legal duty to Decedent under the facts of this case and therefore may not be held liable for negligence. After careful consideration, we agree.

Newell's brief blends and combines several theories of duty in an effort to overturn the trial court's decision: (1) duty of a landowner to pedestrians on adjoining roadways; (2) duty of a landowner to provide adequate parking on its premises; and (3) voluntary assumption of duty by a landowner through prior safety measures. We address each of these separately.

Duty of a Landowner to Pedestrians on Adjoining Roadways

After leaving the concert, Decedent was killed while crossing a highway adjacent to Montana West's property. The trial court therefore surveyed the law regarding the duty of a landowner to protect its invitees from dangers on adjoining public highways,⁵ and it concluded that Montana West had no such duty under the facts at issue here. We agree.

The duty of a Pennsylvania landowner to protect business invitees from dangers on adjoining roadways is a question of first impression for this Court. However, as the trial court observed, the Commonwealth Court, some lower courts in Pennsylvania, and several courts in other jurisdictions have broadly agreed that no such duty exists based on facts similar to those here. Although we are not bound by those decisions, we find them persuasive,⁶ and we now join them in holding that a Pennsylvania landowner owes no duty to an invitee injured on an adjoining roadway under the facts presented by this case. We reach this result mindful of decisions by the Supreme Court of Pennsylvania that have declined to recognize similar duties in analogous circumstances. We begin by discussing the decisions that deal directly with the alleged duty to protect invitees from dangers on adjoining roadways, and we then examine the analogous Pennsylvania Supreme Court decisions.

The trial court based its decision primarily on the Commonwealth Court's decision in Allen v. Mellinger , 156 Pa.Cmwlth. 113, 625 A.2d 1326 (1993), appeal denied , 537 Pa. 653, 644 A.2d 738 (1994). The trial court summarized the Allen holding as follows: "As a matter of Pennsylvania law, owners of property abutting state highways are not liable to pedestrians or motorists who are injured on the highway." Trial Ct. Op., 4/17/14, at 4.

In Allen , the plaintiff, Elizabeth Allen, attempted to make a left-hand turn from State Route 501 into the parking lot of a store owned by the defendants, the Carpenters, when her vehicle collided with a truck coming from the opposite direction. The crest of a hill limited the drivers' visibility at the point on Route 501 where a turn would be made into the store's parking lot, and several accidents had occurred at that location. Relying on Section 343 of the Restatement (Second) of Torts (1965), which makes a possessor of land "subject to liability for physical harm caused to his invitees by a condition on the land" if he knows or should have known of the danger and fails to take protective action, the plaintiff claimed that the store owners had a duty to post signs or take other measures to warn those turning into its parking lot of the dangerous condition. The Commonwealth Court disagreed, explaining:

[U]nder Pennsylvania law, state highways are the property of the Commonwealth. The Commonwealth has the exclusive duty for the maintenance and repair of state highways. The duty is not owed by abutting landowners. State Route 501, the road abutting the Carpenters' parking lot, has been designated a state highway by statute. Thus, even though the Carpenters' boundary line extends to the center of State Route 501, the ownership, control and possession of the highway traversing their property, along with the duty of care to maintain the highway, belongs to the Commonwealth.

Allen , 625 A.2d at 1328–29 (citations omitted). The court held that Section 343 was inapposite because the accident occurred on the public highway, and not...