                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 12-4559
                                    _____________

                        PAULETTE BILLIE; RONALD BILLIE,
                                             Appellants

                                            v.

                                AUTISM SPEAKS, INC.
                                   _____________

                    On Appeal from the United States District Judge
                        for the Eastern District of Pennsylvania
                               (Civ. No. 5-12-cv-02261)
                    District Judge: Honorable Michael M. Bayslon
                                    _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                December 13, 2013

       Before: McKEE, Chief Judge, FUENTES, and SLOVITER, Circuit Judges

                          (Opinion Filed: December 16, 2013)
                                   _____________

                              OPINION OF THE COURT
                                  _____________


FUENTES, Circuit Judge:

      Appellants Paulette and Ronald Billie appeal from the District Court’s judgment in

favor of Autism Speaks, Inc. (“Autism Speaks”). The Billies sought to recover from

Autism Speaks for an injury Paulette sustained at a fundraiser in a park near Allentown,
Pennsylvania. The District Court granted Autism Speaks’s motion for summary

judgment, on the grounds that “a reasonable fact-finder could not infer, based on the

evidence in the record, that [Autism Speaks] had possession of the park.” Billie v. Autism

Speaks, No. 12 Civ. 2261, 2012 WL 6526869, at *1 (E.D. Pa. Dec. 14, 2012). We now

affirm.1

                                             I.

       Autism Speaks is a non-profit organization that raises funds for autism and

research, in part by holding “Walk for Autism Speaks” fundraising events around the

country. Walkers are encouraged to raise money before taking part in these walks.

Autism Speaks held one such event at Lehigh Parkway, which is owned, maintained, and

regulated by the City of Allentown. The City granted Autism Speaks a permit to use

Lehigh Parkway for the walk. Under that permit, Autism Speaks was required to follow

the rules and regulations of the Parkway. During the walk, Autism Speaks lacked the

ability to exclude the general public from walking, running, fishing, bicycling, or

otherwise enjoying the Parkway. Thus, Autism Speaks could not exclude persons from

the Walk for Autism Speaks who had not taken part in the fundraising efforts. Nor was

Autism Speaks permitted to close the Parkway’s streets to public traffic.




1
  The District Court had jurisdiction over the case pursuant to 28 U.S.C. § 1331. We
have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We exercise plenary
review of a district court’s decision to grant a motion for judgment as a matter of law. ZF
Meritor, LLC v. Eaton Corp., 696 F.3d 254, 268 (3d Cir. 2012).
                                             2
         On the day of the event, Autism Speaks—with the City’s permission—set up

portable toilets, tents, and a band trailer in the Parkway. These items were removed from

the Parkway after the walk’s completion.

         Paulette Billie attended the walk, along with 8,000 to 10,000 other persons. After

parking her car in a field that Autism Speaks used as a makeshift parking lot, Paulette got

out of her car and stepped into a large hole. As a result of the misstep, Paulette fractured

her ankle.

         The Billies brought a negligence action against Autism Speaks in the United States

District Court, Eastern District of Pennsylvania, based upon a theory of premises liability.

After discovery, Autism Speaks moved for summary judgment. Concluding that no

reasonable juror could find Autism Speaks to be the “possessor” of Lehigh Parkway, the

District Court granted the motion and dismissed the case. The Billies appealed.

                                               II.

         Under Pennsylvania law, a party may be held liable for an injuries that occur on a

premises only if that party possesses the premises in question.2 Blackman v. Federal

Realty Inv. Trust, 664 A.2d 139, 142 (Pa. 1995); see also Estate of Zimmerman v. Se. Pa.

Trans. Auth., 168 F.3d 680, 684 (3d Cir. 1999) (explaining that “[t]he duty to protect

against known dangerous conditions falls upon the possessor of the land”).       A

“possessor of land” is one who “occupies the land with the intent to control it.” Id. A

party is “considered . . . in control of [a] premises” if it “has authority to manage the land

and regulate its use.” Stanton v. Lackawanna Energy Ltd., 886 A.2d 667, 676 (Pa. 2005).

2
    The parties agree that Pennsylvania law applies in this case.
                                               3
While a party may possess land without owning it, Davis v. City of Philadelphia, 987

A.2d 1274, 1279 (Pa. Cmwlth. 2010), “use of [land] does not [necessarily] equate with

possession,” Estate of Zimmerman, 168 F.3d at 685.

       The District Court granted Autism Speaks’ motion for summary judgment after

concluding that the Billies had failed, as a matter of law, to prove that Autism Speaks was

the possessor of Lehigh Parkway. The District Court explained:

       The undisputed facts show that: (1) the City of Allentown owns and
       maintains the park; (2) Defendant obtained a permit to use the park which
       required adherence to the City’s rules and regulations; (3) Defendant did
       not modify the park other than by bringing in port-a-johns, tents, and a
       band trailer; and (4) Defendants have no authority to exclude the public
       from the park.

Billie, 2012 WL 6526869, at *4. For substantially the same reasons outlined by the

District Court, we agree that, based on the undisputed evidence in the record, no

reasonable trier of fact could conclude that Autism Speaks was a possessor of Lehigh

Parkway. This conclusion is particularly compelled by the fact that Autism Speaks

lacked the ability to exclude patrons unassociated with its event from the Parkway. As

noted in Hill v. Superior Property Management Services, Inc., because “[a] person who

has the control of a landowner in actual occupation of property has both the rights and the

corresponding abilities to deal with the property as he sees fit . . . [, t]he right of exclusion

is significant . . . .” --- P.3d ---, 2013 WL 5587843, at *4-5 (Utah, Oct. 11, 2013); see

also O’Connell v. Turner Constr. Co., 949 N.E.2d 1105, 1109 (Ill. App. Ct. 2011)




                                               4
(holding that a defendant did not possess a property, and thus could not be liable for

injury that occurred there, because he could not “exclude anyone from the premises”).3

                                            III.

       For the foregoing reasons, the District Court is affirmed.




3
  Even assuming arguendo that a question of fact existed as to whether Autism Speaks
possessed Lehigh Parkway at the time in question, the Billies’ suit would likely be
precluded by Pennsylvania’s Recreational Use of Land and Water Act (“RULWA”),
which provides landowners and land possessors with immunity from negligence liability
in instances where the land is provided to the public for recreational purposes. 68 P.S. §
477–3.
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