J-E01008-15

                              2015 PA Super 217



TRACY TRUAX,                                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellant

                      v.

TANYA P. ROULHAC, WILDWOOD 115,
INC. AND SILVIO VITIELLO,

                           Appellees                  No. 1797 EDA 2013


                 Appeal from the Order Entered June 12, 2013
                In the Court of Common Pleas of Monroe County
                     Civil Division at No(s): 9958 Civil 2010


BEFORE: BOWES, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J.,
        OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.

DISSENTING OPINION BY JENKINS, J.:                 FILED OCTOBER 07, 2015

         Because I conclude that the trial court properly granted summary

judgment, I respectfully dissent from the learned majority.

         “To establish a viable cause of action in negligence the pleader must

aver in his complaint [1] a duty, [2] a breach of that duty, [3] a causal

relationship between the breach and the resulting injury, [4] and actual

loss.”     Unglo v. Zubik, 29 A.3d 810, 813 (Pa.Super.2011) (internal

quotations omitted).       It is axiomatic that “[t]he existence of a duty is a

question of law for the court to decide.” R.W. v. Manzek, 888 A.2d 740,

746 (Pa.2005). Moreover, “negligence cannot be found where the law does

not impose a duty.” Sprenkel v. Consol. Rail Corp., 666 A.2d 1099, 1102

(Pa.Super.1995).
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      “The standard of care a possessor of land owes to one who enters

upon the land depends upon whether the latter is a trespasser, licensee, or

invitee.”   Gutteridge v. A.P. Green Servs., Inc., 804 A.2d 643, 655

(Pa.Super.2002). Pennsylvania law defines “business invitee” as “a person

who is invited to enter or remain on land for a purpose directly or indirectly

connected with business dealings with the possessor of land.” Gutteridge,

804 A.2d at 655-56 (quoting Updyke v. BP Oil Co., 717 A.2d 546, 549

(Pa.Super.1998)).

      This Court has summarized the general duty of care a landowner owes

to a business invitee as follows:

      A possessor of land is subject to liability for physical harm
      caused to his invitees 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 harm to such invitees, and

      (b) should expect that they will not discover or realize the
      danger, or will fail to protect themselves against it, and

      (c) fails to exercise reasonable care to protect them against the
      danger.

Gutteridge, 804 A.2d at 656. However, this Court and our Supreme Court

have long held that possessors of land need not act as the insurers of their

patrons’ safety, and must only take reasonable measures to control the

conduct of third parties.   See Moran v. Valley Forge Drive-In Theater

Inc., 246 A.2d 875, 878 (Pa.1968); see also Winkler v. Seven Springs

Farm, Inc., 359 A.2d 440, 442 (Pa.Super.1976), aff’d, 384 A.2d 241

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(Pa.1978) (“A possessor of land is not an insurer of his business invitees,

and plaintiff’s evidence must establish some degree of negligence on

defendant’s part in order to recover.”).

        No reported Pennsylvania case has held a possessor of land negligent

for failing to erect safety measures such as vertical bollards in addition to

horizontal concrete wheel stops to prevent injury from out-of-control

vehicles.    Other courts have ruled on the issue.             An Illinois court found

liability for failure to install vertical concrete poles in a store sidewalk

because this failure was contrary to the custom and practice of the local

building industry.1 A Florida court also found liability where a store had a

five-inch curb and no other barriers where the defendant had knowledge of

prior incidents at the store.2           However, courts in Indiana,3 Alabama,4

Florida,5 and Louisiana6 all found no liability where unforeseeable curb-jump
____________________________________________


1
    See Marshall v. Burger King Corp., 856 N.E.2d 1048 (Ill.2006).
2
    See Grissett v. Circle             K       Corp.   of   Texas,   593   So.2d   291
(Fla.Dist.Ct.App.1992).
3
  Fawley v. Martin’s Supermarket, Inc., 618 N.E.2d 10 (Ind.App.1993)
(driver losing control of automobile not sufficiently foreseeable where store
had sidewalk with three-inch curb barrier).
4
  Albert v. Hsu, 602 So.2d 895 (Ala.1992) (where restaurant had six-inch
curb and wooden barriers, foreseeability of vehicle jumping curb too remote
to create duty).
5
    Molinares v. El Centro Gallego, Inc., 545                   So.2d 387
(Fla.Dist.Ct.App.1989) (no liability where restaurant had sidewalk with 2.5-
inch curb and no other barrier).



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accidents occurred at locations with small curbs and no additional safety

measures and the defendants had no notice of previous similar accidents.

      The instant matter involves an unforeseeable, random act caused by a

third party’s negligence and/or criminal acts.      Requiring Appellees to have

predicted this accident and go beyond their installed safety measures, which

no Pennsylvania case has ever found to be unreasonable under similar

circumstances, would force them to become insurers of their invitees’ safety.

Pennsylvania law does not require this.7          See Moran, supra; Winkler,

supra.


                       _______________________
(Footnote Continued)
6
  Mims v. Bradford, 503 So.2d 1083 (La.App.1987) (no liability where
store had sidewalk with 4.5-inch curb and no other barrier).
7
  Appellant’s reliance on Pushnik v. Winky’s Drive-In Restaurants, Inc.,
363 A.2d 1291 (Pa.Super.1976), Noon v. Knavel, 339 A.2d 545
(Pa.Super.1975), and Amabile v. Auto Kleen Car Wash, 376 A.2d 247
(Pa.Super.1977), to suggest that the absence of measures such as vertical
bollards represents negligence is misplaced. These cases are distinguishable
because they involved no safety precautions whatsoever, foreseeable
accidents, or both.     As such, these cases do not advance Appellant’s
arguments.

Pushnik involved a car accidentally driving through a glass enclosure
between a parking lot and the interior of a restaurant. Cars parked directly
in front of the glass, and there was no barrier erected to prevent a vehicle
from entering the restaurant through the glass. The driver’s foot slipped
from the brake to the accelerator, catapulting the vehicle through the glass
and injuring the plaintiff. Additionally, the restaurant had notice of two
similar past accidents. The court found negligence because the restaurant
had failed to erect any safety barriers whatsoever to prevent such an
accident.

(Footnote Continued Next Page)


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J-E01008-15



      I conclude this matter was proper for determination on summary

judgment, as no genuine issue of material fact as to causation existed.

Appellant’s status as a business invitee, the details of the accident, the

absence of a history of prior accidents, and the Appellant’s injuries were all

obvious and undisputed. That the parking lot’s safety measures consisted of

only horizontal concrete barriers, and not the additional safety measures

suggested by Appellant, was likewise undisputed. The remaining question,

therefore, was a question of law, to wit: whether Appellees were negligent

for not erecting further safety measures in the parking lot.

      Each side presented experts who testified about safety measures. The

testimony of these witnesses goes to the ultimate question of law, not the

question of fact as to what safety measures were actually in place at the

time of Appellant’s injury.

      No issues of material fact existed in this case and the trial court

decided the motions for summary judgment based on existing Pennsylvania

                       _______________________
(Footnote Continued)

Noon involved an accident wherein a vehicle with non-functioning brakes
slammed into a phone booth located on a corner where such an accident was
foreseeable. No safety precautions had been set up to protect the phone
booth. The court found negligence on behalf of the phone booth owner.

Amabile involved a plaintiff struck while drying his vehicle’s back window
near the vacuum machines at a car wash parking area after having washed
his car. A vehicle operated by another patron lost its brakes and struck
plaintiff. This case involved no safety precautions. Summary judgment was
inappropriate because a material fact as to the safety of the vacuums’
location existed.



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J-E01008-15



law, which entitled Appellees to judgment as a matter of law. Therefore, the

trial court did not err in ruling in Appellees’ favor.

      Accordingly, I would affirm the trial court’s order.




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