Kirschbaum v. WRGSB Assoc , 243 F.3d 145 ( 2001 )


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  •                                                                                                                            Opinions of the United
    2001 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    3-9-2001
    Kirschbaum v. WRGSB Assoc
    Precedential or Non-Precedential:
    Docket 00-1017
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001
    Recommended Citation
    "Kirschbaum v. WRGSB Assoc" (2001). 2001 Decisions. Paper 44.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2001/44
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    Filed March 9, 2001
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    Nos. 00-1017 & 00-1023
    MICHAEL KIRSCHBAUM;
    HELEN KIRSCHBAUM,
    v.
    WRGSB ASSOCIATES d/b/a GSB BUILDING;
    THE BALCOR COMPANY
    v.
    INSIGNIA COMMERCIAL GROUP
    WRGSB Associates;
    The Balcor Company,
    Appellants in 00-1017
    Insignia Commercial Group,
    Appellant in 00-1023
    Appeal from the United States District Court
    for the Eastern District of Pennsylvania.
    (Civil No. 97-cv-05532)
    Magistrate Judge: Thomas J. Rueter
    Argued: December 4, 2000
    Before: McKEE, ROSENN, and CUDAHY,*
    Circuit Judges.
    (Filed: March 9, 2001)
    _________________________________________________________________
    * Honorable Richard D. Cudahy, Circuit Judge, U.S. Court of Appeals for
    the Seventh Circuit, sitting by designation.
    Thomas P. Bracaglia, Esq. (Argued)
    Frank S. Nofer, Esq.
    Kelly, McLaughlin & Foster
    1617 John F. Kennedy Boulevard
    Suite 1690
    Philadelphia, PA 19103
    Counsel for Appellants/
    Cross-Appellees
    Carl D. Buchholz, III, Esq. (Argued)
    Thomas A. Kuzmick, Esq.
    Michael A. Meehan, Esq.
    Rawle & Henderson
    1339 Chestnut Street
    1 South Penn Square
    Widener Building
    16th Floor
    Philadelphia, PA 19107
    Counsel for Appellee/
    Cross-Appellant
    OPINION OF THE COURT
    CUDAHY, Circuit Judge.
    On September 12, 1995, Michael Kirschbaum fell down a
    stairway in the GSB Office Building, located in Bala
    Cynwyd, Pennsylvania. Kirschbaum sustained serious
    injuries as a result of the fall and, seeking compensation
    for these injuries, sued the building's owner , WRGSB
    Associates (WRGSB). In turn, WRGSB filed a third-party
    complaint against Insignia Commercial Gr oup (Insignia),
    the building manager with whom WRGSB had contracted to
    manage, maintain and repair the building. Both parties
    settled with Kirschbaum, but retained their r espective
    rights of contribution and indemnity. The United States
    District Court for the Eastern District of Pennsylvania
    apportioned liability equally between the two parties and
    required each party to pay half of the settlement amount.
    The parties appeal, each seeking to have the other bear the
    full cost of settlement. We affirm.
    2
    I. BACKGROUND
    Michael Kirschbaum maintained a medical practice in the
    GSB Building, where he had been a tenant since 1988. On
    average, Kirschbaum worked six days a week, often arriving
    at the building's parking garage before 7:00 a.m., when the
    building opened. Because the building was still closed at
    the time of Kirschbaum's arrival, he would walk up aflight
    of stairs that led to a door to the building, a key to which
    he had been supplied by Insignia, the building manager.
    This flight consisted of 15 steps, and it was walled on both
    sides. A wall-mounted handrail ran up one of these walls,
    but, at the bottom of the stairwell, the handrail had become
    detached from the wall and was resting on the stairs. While
    Kirschbaum was aware of the broken handrail (it had been
    broken ever since he became a tenant in the GSB building),
    he nonetheless continued to use the stairs.
    At approximately 6:00 a.m. on September 12, 1995,
    Kirschbaum arrived at the building and parked in the lower
    parking garage. As he was climbing the stairs leading to the
    building, Kirschbaum stumbled while attempting to place
    his foot on the fifth step. Because the stairway's handrail
    was broken and resting on the stairs at the fifth step,
    Kirschbaum was unable to catch himself, and he fell to the
    bottom of the stairs. As a result of the fall, Kirschbaum
    suffered not only from fractur ed bones, but also from a
    chronic infection of the right leg which may r equire the
    amputation of that leg. See Kirschbaum v. WRGSB
    Associates, No. 97-5532, slip op. at 2 n.1 (E.D. Pa. filed
    Dec. 14, 1999).
    Kirschbaum sued WRGSB, the owner of the building, and
    the district court properly asserted jurisdiction over the
    matter pursuant to 28 U.S.C. S 1332. Kirschbaum alleged
    that he tripped on a step (also known as a "riser") that was
    5/8 of an inch taller than the other steps in the stairwell,
    and further stated that he was subsequently unable to
    arrest his fall due to the broken handrail. As such,
    Kirschbaum alleged two causes of his fall: (1) the riser
    height discrepancy and (2) the broken handrail.
    Because WRGSB had hired Insignia to not only manage,
    but also maintain and repair, the building--including the
    3
    stairwell in which Kirschbaum was injured--WRGSB
    brought a third-party action against Insignia, seeking
    contribution or indemnification. The district court exercised
    supplemental jurisdiction over Insignia pursuant to 28
    U.S.C. S 1367. WRGSB maintained that it r elied on Insignia
    to manage and maintain the GSB building, and that
    Insignia was paid handsomely to do so. WRGSB further
    stated that it did not have any employees on site because
    Insignia provided several on-site management and
    engineering personnel pursuant to the property
    management agreement. As a result, WRGSB maintained
    that Insignia ought to be solely responsible for the injuries
    Kirschbaum sustained as a result of the riser height
    discrepancy and broken handrail, both of which WRGSB
    believed that Insignia was responsible for corr ecting under
    the property management agreement.
    All of Kirschbaum's claims were settled on September 14,
    1998, with WRGSB and Insignia each contributing half of
    the $1,750,000 settlement amount, but retaining their
    respective rights of indemnity and contribution.
    Subsequently, both parties filed motions for summary
    judgment, seeking to have the other bear the full cost of
    settlement. The parties based their motions for summary
    judgment on contradictory interpretations of the property
    management agreement: WRGSB argued that, under the
    terms of the agreement, Insignia was wholly responsible for
    maintaining the stairwell, while Insignia contended that
    WRGSB was required, under the agreement, to purchase
    insurance and fully indemnify Insignia.
    Following the motions for summary judgment, the
    magistrate judge assigned to the case issued a r eport and
    recommendation which concluded that both parties were
    equally negligent in causing Kirschbaum's fall. In
    accordance with this determination, the magistrate judge
    recommended that the parties bear the cost of settlement
    equally. The district court adopted most of the magistrate
    judge's report and recommendation, but r eferred the
    apportionment of liability issue back to the magistrate
    judge for an evidentiary hearing.
    At the evidentiary hearing, WRGSB presented the
    testimony of various Insignia employees. This testimony
    4
    was somewhat cumulative and can be summed up as
    generally showing that the employees believed Insignia's job
    was to repair and maintain the GSB Building. In addition
    to this testimony, Dan Grinnan, Insignia's chief engineer at
    the GSB building, testified that he attempted to r e-weld the
    broken brackets holding the handrail to the wall before
    Kirschbaum's accident, knew those repairs had failed and
    was aware that the handrail was still br oken on the day of
    the accident. Nonetheless, Grinnan never notified WRGSB
    or Kirschbaum that the handrail was broken. Insignia
    countered by calling Charles Goedken, a civil engineer, as
    its expert witness. He testified that ther e was a 5/8 inch
    discrepancy in one of the stairway's risers, that such a
    discrepancy did not conform to generally accepted
    engineering standards and that such a discr epancy created
    a foreseeable risk of falling.
    Following the hearing, the magistrate judge again found
    that WRGSB and Insignia were equally liable for the
    settlement cost. The magistrate judge held that WRGSB
    had a duty to discover and remedy the riser height
    discrepancy, and that Insignia had a separate duty to
    repair the broken handrail. Accordingly, the magistrate
    judge ordered them each to pay one half of the settlement
    amount. WRGSB appeals, and Insignia cross-appeals. We
    have jurisdiction under 28 U.S.C. SS 636(c)(3) & 1291.
    II. DISCUSSION
    Not surprisingly, WRGSB believes that Insignia is solely
    responsible for Kirschbaum's injuries because the property
    management agreement required Insignia to take
    responsibility for the physical condition of all aspects of the
    staircase, including the handrail and the stair risers.
    Insignia cross-appeals, arguing that WRGSB should pay the
    entire settlement amount because: (1) the agr eement
    required WRGSB to provide primary insurance coverage for
    Insignia; (2) WRGSB should not have been able to seek
    contribution or indemnity from Insignia withoutfirst
    establishing that WRGSB was liable to Kirschbaum for his
    injuries; and (3) Kirschbaum assumed the risk of injury
    presented by the handrail.
    5
    Because this is a diversity case, we must first determine
    the substantive state law that is to govern our decision. In
    making this determination, we first look to the conflict of
    laws rules of the forum state, Pennsylvania. See
    Assicurazioni Generali, S.P.A. v. Clover, 
    195 F.3d 161
    , 165
    (3d. Cir. 1999). For substantive tort law issues,
    Pennsylvania uses a combination of the "gover nment
    interest" and "significant relationship" approaches to
    conflict of laws analysis. Under this analysis,"a court must
    evaluate `the extent to which one state rather than another
    has demonstrated, by reason of its policies and their
    connection and relevance to the matter in dispute, a
    priority of interest in the application of its rule of law.' " See
    Troxel v. A.I. duPont Inst., 
    636 A.2d 1179
    , 1181 (Pa. Super.
    Ct. 1994). Neither party disputes that Pennsylvania law
    applies to the tort aspects of this case, and our r eview of
    the facts confirms that the parties ar e correct: this case
    involves an accident in Pennsylvania on a stairwell that is
    subject to Pennsylvania building codes and r egulations. As
    such, Pennsylvania has a priority interest in the application
    of its tort law to this cause. However, because the property
    management agreement so specifies, see Agmt. at S 7.3,
    Illinois' substantive law of contracts applies to
    interpretation of the agreement. See Kruzits v. Okuma
    Mach. Tool, Inc., 
    40 F.3d 52
    , 55 (3d Cir. 1994)
    (Pennsylvania law generally respects parties' choice of law).
    A. WRGSB's Appeal
    Before reaching WRGSB's main argument, we review
    three inadequately supported claims that WRGSB raises in
    the footnotes of its opening brief. These ar guments are: (1)
    that the magistrate judge erred in allowing Insignia to call
    Goedken as its expert witness because "Insignia never
    identified Goedken as its expert witness as r equired by the
    Court's pre-trial rulings . . . ," see Appellant's Br. at 18 n.1;
    (2) that the magistrate judge erred in deter mining that
    WRGSB was a "possessor" of the premises at the time of
    the accident, see 
    id. at 45
    n.11;1 and (3) that the magistrate
    _________________________________________________________________
    1. We recognize that WRGSB develops this argument more fully in its
    response to Insignia's cross-appeal. However, because the argument
    could have been raised as an issue for review in WRGSB's opening brief
    6
    judge erred in concluding that the riser height discrepancy
    constituted a structural defect instead of being a
    consequence of normal wear and tear, see 
    id. at 47
    n.13.
    WRGSB has not presented any of these holdings as a basis
    for its appeal, and WRGSB does not mention these
    arguments in its statement of the issues for r eview, as
    required by Rule 28(a)(5) of the Federal Rules of Appellate
    Procedure. See Appellant's Br. at 3-4. We therefore will not
    reach any of these arguments. See T ravitz v. Northeast
    Department ILGWU Health and Welfare Fund, 
    13 F.3d 704
    ,
    711 (3d Cir. 1994). But, even if we wer e to reach WRGSB's
    arguments, we could not decide them on their merits since
    they are poorly briefed and deserve mor e development than
    passing mention in a footnote for us take them seriously.
    As a result, we will not examine whether the magistrate
    judge erred in allowing Insignia to call Goedken as its
    expert witness. Further, we accept the magistrate judge's
    finding that WRGSB "possessed" the building at the time of
    the accident and that the riser height discr epancy
    constituted a structural defect.
    WRGSB's remaining arguments can all be r educed to one
    claim: that Insignia should be responsible for the entire
    settlement amount because the property management
    agreement obligated Insignia to discover and correct defects
    in both the stair risers and the handrail. Both parties agree
    that Insignia was solely responsible for r epairing the
    defective handrail.2 Ther efore, our discussion focuses
    _________________________________________________________________
    --which would have required that WRGSB include the issue in its
    statement of issues for review and fully develop an argument in the
    argument portion of its brief--we will not address it. See FDIC v. Deglau,
    
    207 F.3d 153
    , 169 (3d Cir. 2000) (issues not raised in opening brief on
    appeal are waived). However, even if we were to entertain WRGSB's
    appeal of the magistrate's factual determination, we would do so under
    a clearly erroneous standard of review. See A&H Sportswear, Inc. v.
    Victoria's Secret Stores, Inc., 
    166 F.3d 197
    , 201-02 (3d Cir. 1999). And,
    contrary to WRGSB's contention, we have found nothing in the record to
    indicate that the magistrate committed clear err or in determining that
    WRGSB was a "possessor" of the stairwell in which Kirchbaum was
    injured at the time of the accident.
    2. Insignia stipulated to its responsibility for maintaining and repairing
    the handrail in the district court, see Kirschbaum v. WRGSB Associates,
    7
    primarily on which party must accept responsibility for the
    injuries arising out of the riser height discr epancy.
    As owner of the GSB building, WRGSB is charged with
    the following duty:
    A possessor of land is subject to liability for physical
    harm caused to his invitees3 by a condition on the land
    if, but only if, he:
    (a) knows or by the exercise of reasonable care
    would discover the condition and should realize
    that it involves an unreasonable risk of har m to
    such invitees, and
    (b) should expect that they will not discover or
    realize the danger, or will fail to pr otect
    themselves against it, and
    (c) fails to exercise reasonable car e to protect them
    against the danger.
    Restatement (Second) of Torts S 343 (adopted by the
    Pennsylvania Supreme Court in Carrender v. Fitterer, 
    469 A.2d 120
    , 123 (1983)) (footnote added). Thus, WRGSB is
    obligated to discover and repair the riser height discrepancy
    that caused Kirschbaum's fall if, by the exer cise of
    reasonable care, WRGSB is capable of discovering the
    defect, and WRGSB should expect that Kirschbaum would
    not discover the defect himself.
    The magistrate judge determined that WRGSB met these
    requirements, and WRGSB does not dispute this finding
    except to argue that the riser height discr epancy is a trivial
    defect--an argument that is related to WRGSB's ability to
    discover the riser height discrepancy. In support, WRGSB
    cites several older Pennsylvania cases where approximately
    _________________________________________________________________
    No. 97-5532, slip op. at 10, P 36 (E.D. Pa.filed Dec. 14, 1999), and
    admits in its reply brief that it "has long since accepted responsibility"
    for this liability. Appellee's Br. at 25. As discussed below, however,
    Insignia does not believe that it ought to pay for any liability arising
    out
    of its failure to repair the handrail because it believes that, under the
    agreement, WRGSB's insurance should cover the liability.
    3. The parties do not dispute that Kirschbaum was an invitee on
    WRGSB's premises.
    8
    1.5 inch sidewalk and roadway discrepancies were found to
    be trivial. See, e.g., Bosack v. Pittsburgh Railways Co., 
    189 A.2d 877
    (Pa. 1962); German v. City of Mckeesport, 
    8 A.2d 437
    (Pa. Super. 1939). While the riser defect here was only
    5/8 inch, it occurred on a stair riser, a place where the
    defect is likely to be far less obvious than on aflat surface
    such as a road (and thus more difficult to protect against).
    Relatedly, discrepancies of this kind ar e far more common
    (and therefore foreseeable) on a sidewalk than on a flight of
    stairs. Indeed, Insignia's expert witness--whom the district
    court found more credible than WRGSB's expert witness--
    testified that a 5/8 inch discrepancy cr eated a foreseeable
    risk of falling. As such, the district court did not err in
    determining that WRGSB was requir ed to discover and
    remedy the riser height discrepancy.
    While WRGSB is thus charged with the duty to discover
    and repair the riser height discrepancy, WRGSB argues
    that its relationship to Insignia is such that Insignia is
    primarily liable to Kirschbaum for the injury he suf fered as
    a result of the riser height discrepancy. As a result, WRGSB
    believes that it is entitled to indemnification fr om Insignia,
    a right that "enures to a person who, without active fault
    on his own part, has been compelled, by reason of some
    legal obligation, to pay damages occasioned by the initial
    negligence of another, and for which he himself is only
    secondarily liable." Builders Supply Co. v. McCabe, 
    77 A.2d 368
    , 370 (Pa. 1951). WRGSB maintains that it is only
    secondarily liable--and Insignia primarily liable--for the
    damage to Kirschbaum because the agreement between
    itself and Insignia obligated Insignia to corr ect not just the
    broken handrail, but the riser height discr epancy as well.
    Accordingly, we must look to the agreement between
    WRGSB and Insignia in order to determine which party
    assumed the primary obligation for discovering and
    correcting the riser height discrepancy. As noted, we
    interpret the contract in accordance with standards
    dictated by Illinois law. Under Illinois law, a contract's
    express provisions govern when the contract is
    unambiguous. See Wright v. Chicago T itle Ins. Co., 
    554 N.E.2d 511
    (Ill. App. Ct. 1990). If a contract's language
    cannot be interpreted in more than one way, "[a] court
    9
    must construe the meaning of [the] contract by looking at
    words used and cannot interpret the contract in a way
    contrary to the plain and obvious meaning of these words."
    J.M. Beals Enterprises, Inc. v. Industrial Har d Chrome, Ltd.,
    
    551 N.E.2d 340
    , 342 (1990). "Unless the contract clearly
    specifies its own meanings, the court must interpr et the
    words or language of the contract with their common and
    generally accepted meanings." 
    Id. at 342-43.
    Further, "the
    court must place the meanings of words within the context
    of the contract as a whole." 
    Id. at 343.
    On appeal, WRGSB bases its argument primarily on S 2.4
    of the agreement, which reads in r elevant part:
    [Insignia] shall . . . maintain the buildings,
    appurtenances and common areas of the [GSB
    Building] in good condition according to local
    standards for comparable properties in the immediate
    market area surrounding the Property, and, in any
    event, in accordance with the standards and conditions
    specified by [WRGSB Associates] from time to time.
    Maintenance and repair items shall include, but shall
    not be limited to, interior and exterior janitorial
    services, exterior grounds and landscaping services,
    repairs and alterations to existing impr ovements,
    plumbing, parking areas, electrical systems[,] painting,
    carpentry, maintenance and repair of mechanical
    systems and such other maintenance and r epair work
    as is reasonably necessary.
    Appx. at 233 (emphasis added). WRGSB also cites two
    other sections of the agreement as evidence of Insignia's
    alleged obligation to correct the riser height discrepancy.
    Section 2.9 of the agreement states that Insignia must use
    due care in the selection and supervision of its on-site
    personnel. See Appx. at 237. In addition,S 2.13 of the
    agreement requires Insignia to use its best efforts to ensure
    that the GSB Building is kept in compliance with applicable
    building codes. See Appx. at 240. WRGSB ar gues that these
    contract provisions clearly transfer to Insignia the building
    owner's duty to discover and remedy all hazar dous
    conditions on the premises.
    As an initial matter, WRGSB's reliance on sections 2.9
    (requiring due care in the selection of on-site personnel)
    10
    and 2.13 (requiring compliance with applicable laws and
    building codes) is misplaced. WRGSB has simply failed to
    produce any evidence that Kirschbaum's accident is due to
    Insignia's negligently hiring on-site personnel. Neither has
    WRGSB shown that Kirschbaum's accident resulted from
    Insignia's failure to maintain the GSB building in
    accordance with applicable building codes. Consequently,
    neither S 2.9 nor S 2.13 of the agr eement aids WRGSB's
    argument.
    We also disagree with WRGSB's reliance on S 2.4 of the
    agreement, for WRGSB appears to confuse Insignia's
    obligation to maintain and repair the building with an
    obligation to discover structural defects, such as the riser
    height discrepancy. That the agreement does not require
    Insignia to discover latent structural defects is apparent
    from the language of S 2.4, which r epeatedly emphasizes
    Insignia's duty to undertake "maintenance" and"repairs."
    The two bases of liability at issue in this case--the defective
    handrail and the riser height discrepancy--pr ovide a perfect
    example of how "maintenance" and "r epairs" should be
    interpreted: fixing a defective handrail is clearly an act of
    maintenance and repair, while discovering and mending a
    riser that has likely been defective since the building was
    constructed is not.
    That maintenance and repairs do not include the
    obligation to discover latent structural defects is also
    supported by the meaning commonly ascribed to these
    words. "Maintenance" is defined by Webster's New World
    Dictionary 854 (2d College Ed. 1979), to include"the work
    of keeping a building . . . in a state of good r epair." "Repair"
    is defined as "to put back in good condition after damage,
    decay, etc." 
    Id. at 1204.
    These definitions both point to the
    act of fixing a deteriorated part of the building, which
    though originally sound, has fallen into disr epair. The
    definitions do not contemplate fixing a part of the building
    that was originally defective. Indeed, a finding that the
    agreement required Insignia to discover the riser height
    discrepancy would necessarily include a finding that
    Insignia is not only responsible for measuring every stair
    riser in the GSB building, but also responsible for other
    acts that are clearly not contemplated by the agreement,
    11
    such as inspecting the building's foundation. W e therefore
    conclude that the agreement failed to delegate
    unambiguously the duty to discover the riser height
    discrepancy to Insignia.
    WRGSB's confusion regarding the dif ference between
    ordinary maintenance and repair and thefixing of latent
    structural defects extends to WRGSB's argument that the
    magistrate judge failed to apply the law of the case when
    apportioning liability between the two parties. In its June
    28, 1999 Memorandum and Order, the district court stated
    that Insignia was obligated under its agreement with
    WRGSB to maintain the stairway and handrails. WRGSB
    argues that the magistrate judge failed to adhere to this
    determination because he found that WRGSB was
    responsible for discovering the riser height discrepancy. As
    is apparent from our discussion, however , the district
    court's finding that Insignia was responsible for
    maintaining the stairway in no way contradicts the
    magistrate judge's finding that WRGSB was r esponsible for
    discovering the riser height defect.
    WRGSB's argument that it cannot be held to a greater
    duty of care than Insignia fails for the same r eason. The
    Restatement (Second) of Torts S 324A (adopted by the
    Pennsylvania Supreme Court in Cantwell v. Allegheny
    County, 
    483 A.2d 1350
    (Pa. 1984)) imposes a duty of
    reasonable care on parties (like Insignia) who render
    services for the protection of a third party (like
    Kirschbaum). From this, WRGSB argues that any duty of
    reasonable care it possessed by virtue of Restatement
    (Second) of Torts S 322 was delegated to Insignia by the
    agreement because Insignia assumed a duty of r easonable
    care under Restatement (Second) of T orts S 324A when it
    entered into the Agreement. WRGSB might have a valid
    argument had it delegated its duty to discover the riser
    height discrepancy to Insignia. However , WRGSB did not do
    so. Consequently, it retained the duty to inspect for and
    discover the riser height discrepancy and cannot shift
    liability for its failure to do so to Insignia.
    In an attempt to revise the agreement's unambiguous
    terms, WRGSB seeks to have us recognize the testimony of
    Insignia's on-site property manager, on-site chief engineer
    12
    and on-site engineer. WRGSB believes that this testimony
    will shed new light on what the parties truly intended when
    they entered into the agreement. However , under Illinois
    law, extrinsic evidence--such as oral testimony--is not
    permitted as a means of clarifying an unambiguous
    contract. See Air Safety, Inc. v. Teachers Realty Corp., 
    706 N.E.2d 882
    , 884 (Ill. 1999). Because much of WRGSB's
    proffered testimony derives fr om depositions that are such
    extrinsic evidence, we will not consider this testimony.
    However, even if we were to consider all of the testimony,
    it would do little to aid WRGSB's argument. Each of
    Insignia's employees stated only that Insignia was
    responsible for the inspection, maintenance and repair of
    the stairway. The testimony of Kelly Buechler , a senior legal
    assistant and assistant secretary at Insignia, as well as
    Insignia's Federal Rule of Civil Procedur e 30(b)(6) designee,
    is illustrative. She testified as follows:
    Q: As part of the Property Management Agr eement
    what is it that Insignia Commercial Group
    provided with regard to the GSB Building what did
    they do?
    A: They maintained, leased, and managed the
    property on behalf of the owner.
    * * *
    Q: As part of the Insignia Commercial Gr oup's
    management agreement with WRGSB Associates
    was Insignia Commercial Group responsible for
    maintaining the stairways inside the GSB
    Building?
    A: Yes.
    * * *
    Q: [The Property Management Agreement] obligated
    Insignia Commercial Group to maintain the GSB
    Building?
    A: Yes.
    * * *
    13
    Q: Such maintenance would have involved r epairing
    any condition found of the stairwell or handrail
    leading from the underground parking garage to
    the GSB Building . . .?
    A: Yes.
    Appx. 651-52, 658-60. Just as with the agreement's
    express language, this testimony does not establish that
    Insignia was responsible for anything other than
    maintenance and repair. And as we have discussed, the
    duty to detect and correct latent structural defects does not
    follow from the duty to maintain and repair. As such, the
    testimony of Insignia's employees does not show that
    Insignia assumed WRGSB's common law responsibility to
    inspect for and detect latent structural defects.
    B. Insignia's Cross-Appeal
    Having disposed of WRGSB's direct appeal, we turn next
    to Insignia's cross-appeal. Even though Insignia has
    admitted its responsibility for maintaining the handrail, it
    presents three unavailing arguments in hope of shifting the
    entire cost of settlement to WRGSB: (1) that, pursuant to
    the agreement, WRGSB's insurance policy covers Insignia
    as well; (2) that WRGSB has failed to prove facts that are
    necessary to establish its right to contribution and
    indemnity from Insignia; and (3) that Kirschbaum assumed
    the risk presented by the broken handrail.
    1. The Agreement's Insurance Pr ovisions
    Insignia argues that it should not have to pay its share
    of the settlement because the agreement r equired WRGSB
    to purchase general liability insurance and to name
    Insignia as an additional insured on the policy. The
    provision on which Insignia relies states:
    Owner shall carry, at its own expense, commer cial
    general liability insurance in such amounts that owner,
    in its sole and absolute discretion, deems necessary for
    the protection of owner's interest in the Property, and
    such insurance shall be deemed the primary insurance
    on the Property. Policies of commercial general liability
    insurance carried by owner shall include manager . ..
    14
    as an additional insured party only in manager's
    capacity as manager of the property.
    See Appx. 244; Agmt. S 5.1. Insignia argues that the clear
    meaning of this requirement is that WRGSB's insurance
    should cover Insignia. However, in reaching its conclusion
    Insignia ignores S 5.8 of the agr eement, which states that
    Insignia has no right to recover against WRGSB or its
    insurance carrier on any claim to the extent that the claim
    arises out of Insignia's own negligence. See Appx. at 246.
    As noted, Insignia has already admitted liability for the
    handrail--a liability that clearly arises out of Insignia's own
    negligence in failing to properly secur e the handrail.
    Therefore, the language of the agr eement makes clear that
    WRGSB's insurance does not cover Insignia for its own
    negligent failure to repair the br oken handrail.
    2. WRGSB's Liability to Kirschbaum
    Insignia next argues that WRGSB cannot now seek
    contribution or indemnity from Insignia because WRGSB
    did not prove its own liability to Kirschbaum. Contribution
    applies when a plaintiff and defendant ar e joint tortfeasors.
    See Builders Supply Co. v. McCabe, 
    77 A.2d 368
    , 370 (Pa.
    1951). Contribution comes into force when one joint
    tortfeasor has discharged a common liability or paid more
    than its share of such liability, in which case the joint
    tortfeasor is entitled to reimbursement fr om the other
    tortfeasors to the extent that its payment exceeded its own
    liability. Conversely, the right of indemnification arises
    when there is a "difference between the primary and the
    secondary liability of two persons each of whom is made
    responsible by the law to an injured party." 
    Id. In such
    a
    case, the party that is secondarily liable may seek complete
    reimbursement from the party that is primarily liable for
    any damages the first-mentioned party has paid.
    A party pursuing claims for contribution and indemnity
    can do so only if it has established that it was itself liable
    to the plaintiff for the plaintiff 's injury. See 42 Pa. C.S.A.
    S 8324(a) (West 1998) (contribution only available among
    joint tortfeasors); 42 Pa. C.S.A. S 8322 (W est 1998) (joint
    tortfeasor is, in part, one who is liable to plaintiff); Builders
    Supply Co. v. McCabe, 
    77 A.2d 368
    , 370 (Pa. 1951)
    15
    (indemnity may be pursued by a "person who without
    actual fault on his own has been compelled by r eason of
    some legal obligation to pay damages . . . ."). Insignia
    argues that WRGSB has not established its own liability to
    Kirschbaum, and that WRGSB may thus not seek
    contribution or indemnity from Insignia. However, while we
    think it likely that WRGSB was legally liable to Kirschbaum
    --as we have noted, WRGSB is primarily liable for its
    failure to correct the riser height discr epancy and
    secondarily liable for Insignia's failure to r epair the handrail
    --WRGSB need not prove this here. As determined above,
    both parties are equally liable to Kirschbaum, but on their
    own, distinct grounds: WRGSB's liability arises out of its
    failure to correct the riser height discr epancy and Insignia's
    liability arises out of its failure to r epair the handrail. The
    parties are thus required to pay equal shares of the
    settlement, representing their equal, but distinct, bases of
    liability to Kirschbaum. Therefore, Insignia is not entitled to
    contribution or indemnity from WRGSB. Insignia's
    argument that WRGSB must prove its liability to
    Kirschbaum thus misses the point and does nothing to
    alter the parties' obligation to each pay half of the
    settlement.
    3. Kirschbaum's Assumption of Risk
    Insignia lastly argues that it cannot be liable for its
    failure to repair the handrail because Kirschbaum was
    aware of the broken handrail and assumed the risk of any
    injury resulting from it. Under Pennsylvania law,
    assumption of risk is established by showing that the
    injured party fully appreciated the natur e of the risk it
    faced and voluntarily assumed it. See Bar nes v. American
    Tobacco Co., 
    161 F.2d 127
    , 149 (3d Cir. 1998). In addition,
    the injured party must not have had a meaningful and
    reasonable alternative path to avoid the risk. See Kaplan v.
    Exxon Corp., 
    126 F.3d 221
    , 226 (3d Cir . 1997). Whether a
    party assumed a risk is a question of fact that is r eviewed
    for clear error. See 
    Kaplan, 126 F.3d at 225
    (assumption of
    risk generally a question of fact); A&H Sportswear, Inc. v.
    Victoria's Secret Stores, Inc. , 
    166 F.3d 197
    , 201-02 (3d Cir.
    1999) (questions of fact reviewed for clear err or).
    16
    Insignia argues that Kirschbaum assumed the risk of
    injury resulting from his fall because he was aware of the
    broken handrail and had used the stairwell for years in
    spite of it. We believe, however, that the magistrate judge
    correctly concluded that Kirschbaum did not fully
    appreciate the extent of the risk he faced. It is true that
    Kirschbaum was aware of the broken handrail, and thus
    knew that it would not aid him were he to trip while on the
    stairs. However, the risk presented by the broken handrail
    includes not just an appreciation of the har m likely to
    result were Kirschbaum ever to need the handrail, but also
    an appreciation of the likelihood that Kirschbaum would in
    fact have to rely on the handrail to br eak a fall. This latter
    component of the handrail's risk was not appr eciated by
    Kirschbaum: he knew that he might accidently trip when
    climbing the stairs, but was completely unawar e of the riser
    height discrepancy, which increased the likelihood of a fall
    and thus the likelihood that he would need to r ely on the
    handrail.
    Kirschbaum also failed to assume the risk arising out of
    his use of the stairs because he did not have a r easonable
    alternative route. While Kirschbaum could have entered the
    building from one other entrance, this entrance--like the
    entrance used by Kirschbaum--was locked when
    Kirschbaum arrived in the morning. An Insignia employee
    provided Kirschbaum with the stairwell key and directed
    him to use the stairwell. As such, the stairwell was usually
    the only way for Kirschbaum to enter the building because
    he arrived at work before other building entrances opened.
    Consequently, Kirschbaum had no other reasonable route
    into the building, and he did not assume the risk pr esented
    by the broken handrail.
    III. CONCLUSION
    For the foregoing reasons, the decision of the district
    court is Affirmed.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    17