                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-10-2007

Bradley v. O'Donoghue
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4246




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"Bradley v. O'Donoghue" (2007). 2007 Decisions. Paper 1793.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1793


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                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    No: 05-4246

                   LONSHYA BRADLEY; DONNA ROSAS,
                   plenary guardian of the person and estate of
                 LONSHYA BRADLEY, a minor and incompetent

                                             v.

         MAURICE O'DONOGHUE; COLUMBIA LIGHTING-LCA, INC.;
              BURGER KING CORP.; BRISTOL BOROUGH;
                       BRISTOL TOWNSHIP

                  Donna Rosas, plenary guardian of the person and estate
                   of Lonshya Bradley, a minor and incompetent,

                                              Appellant


                    Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                               (Civ. No. 03-CV-05071)
                     District Judge: Hon. William H. Yohn, Jr.


                    Submitted Under Third Circuit LAR 34.1(a)
                               November 8, 2006

      Before: SCIRICA, Chief Judge, MCKEE and STAPLETON, Circuit Judges.

                          (Opinion filed: January 10, 2007)

                                     OPINION

McKEE, Circuit Judge.



                                         1
       Donna Rosas, the plenary guardian of the person and estate of Lonshya Bradley,

appeals the District Court’s grant of summary judgment in favor of U.S. Restaurants

based upon that court’s determination that the defendant owed no duty to Bradley. For

the following reasons, we will affirm.1

                                               I.

       Because we write primarily for the parties, we need not recite the underlying facts

or procedural history of this case. Rosas makes several arguments on appeal, however,

they all turn on Rosas’ allegation that the defendant owed a duty to Bradley based upon

its obligation to provide safe ingress and egress to its restaurant.

       The District Court correctly determined that Pennsylvania law applies to this

diversity action, and the parties do not dispute that decision.    Rosas claims that the

District Court erred in relying upon Restatement (Second) of Torts § 349 because that

provision only applies to situations where “a passerby [is] injured by a defect on an area

of state highway over which the defendant has a right of way or easement.” Appellant’s

Br. at 11.2 However, the District Court carefully explained why it predicted that the


       1
          The District Court had jurisdiction pursuant to 28 U.S.C. 1332(a)(1). We have
jurisdiction pursuant to 28 U.S.C. § 1291.
       2
           Section 349 provides:

       A possessor of land over which there is a public highway or private right of way is
       not subject to liability for physical harm caused to travelers upon the highway or
       persons lawfully using the way by his failure to exercise reasonable care
       (a) to maintain the highway or way in safe condition for their use, or
       (b) to warn them of dangerous conditions in the way which, although not created

                                                2
Pennsylvania Supreme Court would follow § 349, and we can add little to the District

Court’s analysis of that issue. The District Court’s conclusion is consistent with the law

of Pennsylvania. For example, in Allen v. Mellinger, 625 A.2d 1326 (Pa. Cmwlth. Ct.

1993), the plaintiff was struck by oncoming traffic while turning into a shopping center

parking lot from a state highway. The court relied upon § 349 to hold that the plaintiff

could not recover from owners of the shopping center because they owned no duty to

indicate a safe place to turn by placing curbing or barricades in the parking lot. In

reaching its decision, the court discussed, MacGrath v. Levin Properties, 606 A.2d 1108,

1109-11 (N.J. Super. Ct. 1992), a case decided under New Jersey law. There, the court

relied upon § 349 in holding that a shopping center owner owed no duty to a plaintiff who

was hit by a car while crossing a state highway abutting the defendant’s property.

       Rosas also claims that the location of the defendant’s business and the

location of the driveway were dangerous conditions that led pedestrians into the

intersection, and that she is therefore entitled to recover under Restatement

(Second) of Torts §§ 343 3 and 364 4 . We disagree.



       by him, are known to him and which they neither know nor are likely to discover.

Restatement (Second) of Torts § 349 (1965).

       3
           Restatement § 343 provides that:

       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

                                                3
       As the District Court explained, this argument is precluded by Gardner ex

rel. Gardner v. Consolidated Rail Corporation, 573 A.2d 1016, 1019 (Pa. 1990).

There, plaintiff relied upon the Restatement (Second) of Torts including §§ 343

and 365 5 in arguing that a city and a railroad were liable for injuries he sustained




       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 danger.

Restatement (Second) of Torts § 343 (1965).
       4
           Restatement § 364 provides that:

       A possessor of land is subject to liability to others outside of the land for physical
       harm caused by a structure or other artificial condition on the land, which the
       possessor realizes or should realize will involve an unreasonable risk of such
       harm, if
       (a) the possessor has created the condition, or
       (b) the condition is created by a third person with the possessor’s consent or
       acquiescence while the land is in his possession, or
       (c) the condition is created by a third person without the possessor’s consent or
       acquiescence, but reasonable care is not taken to make the condition safe after the
       possessor knows or should know of it.

Restatement (Second) of Torts § 364 (1965).
       5
           Restatement § 365 provides that:

       A possessor of land is subject to liability to others outside of the land for physical
       harm caused by the disrepair of a structure or other artificial condition thereon if
       the exercise of reasonable care by the possessor or by any person to whom he
       entrusts the maintenance and repair thereof
       (a) would have disclosed the repair and the unreasonable risk involved therein,
       and
       (b) would have made it reasonably safe by repair or otherwise.

Restatement (Second) of Torts § 365 (1965).

                                                 4
while crossing the defendant’s railroad tracks. Id. at 1019. Plaintiff had reached

the tracks after climbing through a hole in a city-owned fence surrounding a

municipal playground. Id. The Pennsylvania Supreme Court held that the city

owed plaintiff no duty of care because the fence was not the proximate cause of

the injury–“the only connection between the injury and the allegedly poorly

maintained fence[] is that [plaintiff] passed through or walked toward holes in the

fences.” Id. at 1021. Here, the District Court correctly ruled that Bradley was

merely passing through the Burger King driveway; she was obviously not injured

by it, and it was not the proximate cause of Bradley’s injuries.

       Plaintiff’s claim fares no better under § 365. Rosas’ argument under that

section of the Restatement mirrors Justice Montemuro’s dissent in Majestic by

Majestic v. Commonwealth of Pennsylvania, 641 A.2d 295, 296-99 (Pa. 1994) (per

curiam) (Montemuro, J., dissenting). However, the Commonwealth Court rejected

that argument based on Gardner. Justice Montemuro’s dissent to the contrary

distinguishing Gardner does support Rosas’ argument, but it is not the law of

Pennsylvania.

       No matter how Rosas attempts to portray Bradley’s claim, it is clear that any

obligation on the part of the defendant must arise from some duty it owed to

Bradley. Yet, as the District Court explained, it is clear under Allen, the defendant

owed no duty to Bradley. See also, Cruett v. Certain-Teed Corp., 639 A.2d. 478,



                                              5
481 (Pa. Super. 1994); and 36 P.S. § 670-420 (giving the Secretary of

Transportation the authority to “make reasonable rules and regulations governing

the use of all State highways. . ..”).

                                           II.

       Thus, for the reasons stated above, we will affirm the District Court’s grant of

summary judgment to Burger King, and against Donna Rosas as plenary guardian for

Lonshya Bradley.




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