Young, S. v. Prizm Asset Mgt. , 100 A.3d 594 ( 2014 )

J-A18029-14
2014 PA Super 195SHARON AND JAMES YOUNG IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
PRIZM ASSET MANAGEMENT COMPANY,
STEAMTOWN MALL PARTNERS, LP AND
THE MALL AT STEAMTOWN
Appellee No. 2078 MDA 2013
Appeal from the Order Entered on November 4, 2013
In the Court of Common Pleas of Lackawanna County
Civil Division at No.: 2010 Civil 8445
BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.
OPINION BY WECHT, J.: FILED SEPTEMBER 09, 2014
Sharon and James Young1
order granting summary judgment to Prizm Asset Management Company,
Steamtown Mall Partners, L.P., and the Mall at Steamtown (collectively,
The trial court has provided the following summary of the factual and
procedural history of this case:
On November 24, 2010, [Young] filed a complaint against
[Steamtown Mall] resulting from an assault on Young in the
parking garage of Steamtown Mall in February 2009. Young, an
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1
Because our discussion focuses heavily upon events that directly
er to Sharon
Young individually and the Youngs collectively.
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was reporting to work at approximately 12:45 p.m. on February
6, 2009, when she was attacked by an unknown, unidentified
assailant, who is alleged to have attempted to steal her car. The
assault left Young with various injuries for which she alleges
Steamtown Mall is liable.
After the completion of discovery, Steamtown Mall filed a Motion
for Summary Judgment, alleging [that] it breached no duty to
Young in failing to ensure her safety from an unanticipated
criminal assault in an area open to the general public, and that
no act or omission on behalf of Steamtown Mall was the cause of
You
-2.
motion for summary judgment. On November 14, 2013, Young filed a
timely notice of appeal. The trial court did not order Young to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The trial court did not file an opinion pursuant to Pa.R.A.P. 1925(a).2
court erred in gra
Brief for Young at 4.
Summary judgment motions are governed by Pa.R.C.P. 1035.2:
After the relevant pleadings are closed, but within such time as
not to unreasonably delay trial, any party may move for
summary judgment in whole or in part as a matter of law
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2
Pursuant to Rule 1925(a), the trial court is not obligated to file an
inion provides sufficient
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(1) whenever there is no genuine issue of any material fact as
to a necessary element of the cause of action or defense
which could be established by additional discovery or
expert report, or
(2) if, after the completion of discovery relevant to the motion,
including the production of expert reports, an adverse
party who will bear the burden of proof at trial has failed to
produce evidence of facts essential to the cause of action
or defense which in a jury trial would require the issues to
be submitted to a jury.
Pa.R.C.P. 1035.2.
judgment is well-established:
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.
Only where there is no genuine issue as to any material fact and
it is clear that the moving party is entitled to a judgment as a
matter of law will summary judgment be entered. Our scope of
judgment is plenary, and our standard of review is clear: the
that the court committed an error of law or abused its discretion.
Abrams v. Pneumo Abex Corp., 981 A.2d 198, 203 (Pa. 2009) (citation
misapplied the law, when its judgment is manifestly unreasonable, or when
Bouzos-Reilly v. Reilly, 980 A.2d 643, 644 n.1 (Pa. Super. 2009).
Both the trial court and Steamtown Mall rely upon section 344 of the
Restatement (Second) of Torts as controlling in this case. See T.C.O. at 2-
3; Brief for Steamtown Mall at 6-20. Section 344 provides:
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A possessor of land who holds it open to the public for entry for
his business purposes is subject to liability to members of the
public while they are upon the land for such a purpose, for
physical harm caused by the accidental, negligent, or
intentionally harmful acts of third persons or animals, and by the
failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be
done, or
(b) give a warning adequate to enable the visitors to avoid the
harm, or otherwise to protect them against it.
Restatement (Second) of Torts § 344. Although it appears that no
Pennsylvania authority has held specifically that section 344 extends its
business invitee protections to employees of a lessee of the party against
whom liability is asserted, other courts long have applied section 344 in that
situation. See, e.g., Morgan v. Bucks Assocs., 428 F.Supp. 546, 549
(E.D.Pa. plaintiff[,] who at the time of the assault was an
employee of a store in the shopping center, was a business invitee [of the
rather entities related to the Mall, where the employer leased its space.
Hence, by the text of section 344, all defendants appeared to be
[] of the public [who
exists to profit from providing merchants with a location to conduct
business, and merchants cannot reasonably conduct business without the
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assistance of employees, we hold that Young was a business invitee for
purposes of section 344. Consequently, the trial court correctly concluded
that this case is governed by the provisions of section 344 and the case law
interpreting that section.3
This conclusion, howeve
effort to establish disputes of material fact precluding summary judgment is
as salient to section 344 as it is to any other. The issue we face is whether
the trial court decided or assumed genuine disputes as to material facts that,
if resolved in favor of Young, reasonably could support a jury verdict in her
favor. Section 344 merely provides the framework within which we must
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3
Young asserts perfunctorily that Restatement (Second) of Torts § 448
controls, but does not provide any argument upon which we might prefer
section 448 to section 344. Brief for Young at 19-20. Section 448 provides
as follows:
The act of a third person in committing an intentional tort or
crime is a superseding cause of harm to another resulting
situation which afforded an opportunity to the third person to
commit such a tort or crime, unless the actor at the time of his
negligent conduct realized or should have realized the likelihood
that such a situation might be created, and that a third person
might avail himself of the opportunity to commit such a tort or
crime.
Id. §
by the cases she cites in support of her appeal, each of which explicitly
hinged upon the application of section 344 and made no material mention of
section 448. See Brief for Young at 20 (collecting cases). Moreover, Young
provides no authority and makes no argument for the application of
section 448 in lieu of section 344.
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answer that question. For the reasons that follow, we find that the trial
s entry of summary judgment on the averments and evidence
submitted necessarily depended upon the premature, if implicit, resolution of
material factual issues that should have been submitted to a jury.
This Court has elaborated on the burdens imposed upon landowners by
section 344 as follows:
The Supreme Court has observed that an occupant of land for
business purposes is not, of course, the insurer of the safety of
reasonable measures be taken to control the conduct of third
persons, or to give adequate warning to enable patrons to avoid
Moran v. Valley Forge Drive-In Theatre,
Inc., 246 A.2d 875, 879 (Pa. 1968). Thus, [section] 344 liability
is only applicable where the occupant is negligent, i.e., fails in
one of two duties either to take reasonable care to discover
dangerous conduct of third persons is occurring or likely to
occur, or to take reasonable care to provide appropriate
precautions. Carswell v. SEPTA, 393 A.2d 770(Pa. Super. 1978).
Murphy v. Penn Fruit Co., 418 A.2d 480, 482-83 (Pa. Super. 1980)
(citations modified).
Notably, when the question concerns whether prior criminal or violent
incidents like the one alleged provided adequate notice to the responsible
Id. at 483.
Thus, in Moran, we held as follows:
Under [section 344], it is not necessary for defendants to be
specifically aware of the exact location on their premises where
patrons might be injured by the tortious acts of third persons. It
is sufficient to establish a jury question of liability if the
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evidence . . . shows that the defendants had notice, either actual
or constructive, of prior acts committed by third persons within
their premises [that] might cause injuries to patrons.
246 A.2d at 878-79. In Murphy, citing Moran, this Court observed t
property which might pose a danger to others, it could impose a duty upon
418 A.2d at 483. We expl
know, from past experience, that there is a likelihood of conduct on the part
of third persons in general [that] is likely to endanger the safety of a
Id. at 484 (citing Morgan, supra; Restatement (Second) of Torts
§ 344 cmt. f4).
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4
Comment f to section 344 provides as follows:
Duty to police premises. Since the possessor is not an insurer of
care until he knows or has reason to know that the acts of the
third person are occurring, or are about to occur. He may,
however, know or have reason to know, from past experience,
that there is a likelihood of conduct on the part of third persons
in general which is likely to endanger the safety of the visitor,
even though he has no reason to expect it on the part of any
particular individual. If the place or character of his business, or
his past experience, is such that he should reasonably anticipate
careless or criminal conduct on the part of third persons, either
generally or at some particular time, he may be under a duty to
take precautions against it, and to provide a reasonably
sufficient number of servants to afford a reasonable protection.
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Against this legal backdrop we must assess the materiality of the
disputed facts that we can discern under the particular circumstances of the
motion for summary judgment. The numerous deposition transcripts in the
certified record reveal genuine issues of material fact concerning the extent,
nature, locations, and contexts of the criminal activity observed at the Mall
before Young was assaulted; the degree to which the garage in which the
assault occurred was secured, monitored, and patrolled; and whether the
criminal activity that occurred on and around the Mall in the years before
Young was attacked provided notice to the mall of the prospect of a violent
assault occurring in the garage in question.
Place, she was required to park in the upper levels of the garage in question,
reserving the more convenient spots for customers of the Mall. Prior to her
assault, Young had observed what she suspected were drug deals occurring
in the parking garage. Young Deposition, 1/4/2012, at 56-57. Young also
had been told by a co-worker that, some years before Young began her
employment at
beaten and carjacked in a parking lot adjacent to the Mall that the Mall had
leased for employee use during the busy holiday season. Id. at 57-59.
ere she parked were dim,
and that only a few of the lights, perhaps three of five lights in that location,
were lit. Id. at 49-51. Young further testified that, because lower levels of
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the garage were under video surveillance, she assumed that there was
camera surveillance of the entire garage, including the area in which she
was assaulted. Id. at 73-74.
Aaron Whitney, who served as Director of Public Safety for Steamtown
no
occurred, Whitney Deposition, 3/12/2012, at 41, and indicated that he did
not know why there were no cameras in that section of the garage. Id. at
46. He averred that employees at the Mall were neither informed nor
warned of the lack of surveillance cameras in their designated parking levels.
Id. at 58-59. Whitney further testified regarding various incidents that had
activity,
detention of escaping shoplifters, and underage drinking. Id. at 47-49.
Whitney also asserted that additional drug activity, fights, and assaults had
occurred within the Mall but outside of the parking garage. Id. at 49-50.
At the time of Y
Operations Assistant. West Deposition, 2/12/2013, at 9. West also testified
garage where Young was assaulted, but that there were cameras on other
levels of the same garage. Id. at 15. West testified that the parking garage
gates on the relevant side of the Mall normally opened at 7:00 a.m., and
that there were no guards posted at the gates overnight. Id. at 17. When
asked to discuss potential entry points to the garage that would not require
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a person to pass through the Mall, West identified an emergency stairwell
leading to a public street adjacent to the Mall and a separate emergency
stairwell leading to a service road at the rear of the Mall. Id. at 22. Each
midnight each night, but entirely open to entry from the street from
approximately 7:00 a.m. to midnight. Id. at 22-23. There were no security
cameras at either of these gates. Id. at 23-23. West acknowledged that
people had accessed the foot entrance through the service road. Id. at 155.
West testified that he did not know why the gates did not have a safety push
bar on the inside, which would allow egress from the garage while
preventing entry into the garage from the street. Id. at 25-26. West
acknowledged that, if people could not enter the parking garages directly
entrance, which might enhance security. Id. at 44. West did not dispute
the contents of incident reports showing that, from January 1, 2006 through
May 31, 2008, Scranton police responded to approximately twenty-four
assaults in various areas within and around the Steamtown Mall and in the
Scranton police responded to 101 trespasses, ten assaults, and forty-six
disorderly conducts. Id. at 32-33.
James Walsh, General Manager and Vice President of Prizm Asset
-levels of the
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tower parking garage. Walsh Deposition, 3/12/2012, at 13. He testified
that Mall employees are required to park in the upper-levels of the tower
parking garage in order to save lower-level parking for mall patrons. Id. at
and well[-]being of [its]
Id.
Place to park in the lower level of the parking garage, which was under video
rt
employees to and from their cars. Id.
Notably, Walsh also testified that the drug activity at the Mall was
operations within the Mall:
[WALSH:] Scranton Police will actually conduct stings at the
Mall and they will make arrangements to do the stings there and
the Mall[,] everybody knows the Mall[
and do their buy meaning the undercover [c]op will do his buy
and then it ends up in the paper.
[Q.] How long has that been happening?
[Walsh:]
wraps but the problem is the Mall is the Mall. You know you
have the out[-]of[-
ys or our stairwells. The
bust them . . . .
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Id. at 16. Walsh was not certain whether these sting operations had
preceded the attack on Young. Id. at 16-17.
included apprehending shoplifters, maintaining physical security of the
department store, and preventing loss. Richmond Deposition, 2/12/2013, at
7-
security concerns regarding people who parked in the parking garage in
which Young was attacked. Id. at 9. Richmond testif
Id.
and the surrounding area. Id. at 13. Richmond further testified that he
employed there. Id. at 14.
Lieutenant Leonard Namiotka of the Scranton Police Department
testified by deposition on February 12, 2013. As Administrative Lieutenant,
one of Lt.
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Lt.
Department from the Steamtown Mall. The first IAR included all calls in the
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in the three years follow Id. at 6-7. The IAR for the
three-
had received calls for thirty-three assaults, thirty-seven fights,
110 disorderly conducts, and 110 trespasses in and around the Mall.
Namiotka also worked extra shifts as security at the Mall on Friday nights for
at least three years. Id. at 10-
requested that the Police have a presence because of the volume of
incidents that were occurring with
Id. at 12. The persistence of drug arrests, disorderly conducts, and defiant
trespasses prompted the Mall to request a regular police presence. Id. at
12-13.
In its analysis of the testimonial evidence, the trial court focused
principally upon the fact that none of the witnesses were aware of an assault
as vicious as was inflicted on Young occurring in the Mall or its garages in
the years before her attack. Rather, much of the crime reported was of a
less serious nature simple possession of controlled substances, keyed cars,
shoplifters, the occasional fight. See T.C.O. at 5-
theories of the case that there should have been security cameras on the
level of the garage where she was attacked, that the light was unsafely
dim
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Id. at 8.5
Regarding the lack of surveillance, the trial court rejected the suggestion in
was never equipped with cameras[] because there were no incidents, both in
this area as well as [ Id. at 8.6 The trial
garage from outside the Mall presented an unnecessary risk of foreseeable
. . . testimony revealed [that] there was an ability to
secure the . . . stairwell, testimony failed to reveal a need for same.
Nowhere in any of the transcripts submitted was there a notation of criminal
activity linked to the stairwell, especially in the middle of the day when
Id. at 8-9. Ultimately, the court concluded that
probability of a criminal assault occurring within the garage. Facts failed to
reveal [that] Steamtown Mall or could reasonably anticipate an assault such
against the evidence and the governing legal standard, plainly embodies a
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5
This unfortunate characterization implies that nothing short of
impenetrable blackness may constitute a hazard of inviting and enabling
criminal activity.
6
Testimony also revealed that other areas of the garage were under
video surveillance.
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degree of evidence-weighing and fact-finding in which a trial court may not
indulge in the context of a motion for summary judgment. As noted, supra,
section 344 does not require for the establishment of liability that closely
similar incidents of criminality have occurred at or very near the location at
which the later crime occurred. The voluminous testimonial evidence and
presumably like most malls, was no stranger to misbehavior and criminality.
Moreover, the criminality was not wholly limited to petty matters such as
shoplifting and trespass: Were that the case, the Scranton Police
Department presumably would have dedicated resources elsewhere rather
than go to the trouble of conducting unannounced undercover operations to
interdict drug activity. As well, the evidence indicated without material
much like Young, on an adjacent parking lot used by the Mall for employee
parking during the busy holiday season. That this occurred outside the legal
matter of law.
Under Restatement section 344, a property owner that holds its
property open to the public for business purposes may be held liable for
harm suffered by business invitees when the owner fails to discover that
such acts are being done or are likely to be done, or fails to give adequate
warning to enable invitees to avoid or protect themselves against the harm.
See Murphy, 418 A.2d at 482-83. Notably, in Murphy we emphasized that
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the exact location of the crimes submitted as having provided notice to the
owner of a given risk is not critical; a jury question is presented wh
defendants had notice, either actual or constructive, of prior acts committed
by third persons within their premises [that] might cause injuries to
Moran, 246 A.2d at 878-79. Thus, when a jury finds that crimes
posing a danger to others
Murphy, 418 A.2d at 483;
see Restatement (Second) of Torts §
experience[] is such that he should reasonably anticipate careless or criminal
conduct on the part of third persons, either generally or at some particular
time, he may be under a duty to take precautions against it, and to provide
a reasonably sufficient number of servants to afford a reasonable
The evidence set forth above, viewed in the light most favorable to
Young and granting Young every reasonable inference deducible therefrom,
favor, would warrant relief. Applying the governing standard, we find that
Young is not barred from recovery as a matter of law based upon the
submissions of the parties to date. Consequently, we reverse the trial
proceedings.
Judgment reversed. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2014
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