J-A18029-14


                                  2014 PA Super 195

SHARON 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

____________________________________________


1
     Because our discussion focuses heavily upon events that directly
                                                        er to Sharon
Young individually and the Youngs collectively.
J-A18029-14


       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

____________________________________________


2
       Pursuant to Rule 1925(a), the trial court is not obligated to file an

                                                         inion provides sufficient




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J-A18029-14


     (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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J-A18029-14


      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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J-A18029-14



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
____________________________________________


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.




                                           -5-
J-A18029-14



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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J-A18029-14


       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).




____________________________________________


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.



                                           -7-
J-A18029-14



      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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J-A18029-14



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

                                    -9-
J-A18029-14



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

                                     - 10 -
J-A18029-14



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 . . . .



                                    - 11 -
J-A18029-14



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.

                                                                            -6.

Lt.



Department from the Steamtown Mall. The first IAR included all calls in the




                                    - 12 -
J-A18029-14



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




                                        - 13 -
J-A18029-14



                                                                          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
____________________________________________


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.



                                          - 14 -
J-A18029-14



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

                                    - 15 -
J-A18029-14



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.

                                       - 16 -
J-A18029-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2014




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