                                                                                                                           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Precedential or Non-Precedential: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




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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)

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(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

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