The Superior Court of Pennsylvania recently

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NEW JERSEY
PENNSYLVANIA
DELAWARE
NEVADA
By Carmelo T. Torraca, Esq.
The Superior Court of Pennsylvania
recently overturned a Court of
Common Pleas ruling which had
granted summary judgment in favor of
the Steamtown Mall in a case involving
an assault which occurred in the Mall’s
parking lot.
The claim was brought by Sharon
Young, who was employed by one of
the Mall’s tenants. Young was the
victim of a car-jacking which occurred
as she was leaving from work.
Young was attacked by unidentified
assailants who were attempting to
steal her vehicle from the employee
section of the Mall parking lot.
The Mall’s initial argument that Young’s
status at the time of the attack was
not as a business invitee (customer),
but rather was that of an employee of
a tenant at the site. The level of duty
owed by the Mall differed depending
on Young’s status. It appears that no
Pennsylvania decisions had extended
its business invitee protections to
employees of the tenant of a party
against whom liability is asserted.
Although other courts have applied
that standard, there was none in
Pennsylvania. Basically, as an employee,
the Mall argued that Ms. Young is not
entitled to the same protections as a
business invitee.
In reversing the Common Pleas’ grant
of summary judgment to the Mall,
the Appellate Court held that the
issue of whether the Mall had acted
reasonably in terms of the level of
security it had provided in the area of
the attack was an issue for a jury to
decide, not the Court.
The Appellate Court disagreed and
found that a tenant’s employee is a
business invitee for the purposes of
applying the law. The Court rationalized
that since the Mall was a for-profit entity
in terms of providing merchants with a
location to conduct their businesses,
and since merchants cannot reasonably
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conduct their business without the
assistance of employees, Young
qualified as a business invitee for the
purpose of determining the application
duty of care owed to her by the Mall.
Under the duty owed to a business
invitee, the Mall had the duty to
either take reasonable steps to
discover any criminal conduct by
third persons occurring, or likely
to occur, at the Mall premises, or
to undertake reasonable care to
provide appropriate precautions.
If the Mall was aware of the
foreseeability of criminal activity
by third parties occurring on
its premises, it must provide
reasonable security measures.
Generally, a land owner is not an insurer
of visitor safety. The land owner is
under no duty to exercise any care and/
or police the property until the land
owner knows, or has reason to know,
that the criminal acts of third persons
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are occurring or are about to occur. This
means that once the experience of the
landlord becomes aware of criminal
activity occurring at or around its site,
the land owner must take reasonable
steps to protect business invitees.
One of the arguments raised by the
Mall during the summary judgment
motion was that there had been no
known prior problems of this type in
the employee parking area. The Mall
argued that it therefore had no prior
notice of criminal activity.
The Appellate Court disagreed
and quoted the Supreme Court of
Pennsylvania that “exact locale of prior
crimes is immaterial insofar as the [the
landlord’s] . . . duties are concerned.” In
the Supreme Court’s decision of Moran
v. Valley Forge Drive-Theater, Inc., 431
Pa. at 432 (Pa. 1968), the Court did not
find it necessary for the defendants
to be specifically worried about an
exact location on their premises
where patrons might be injured by
the tortious act of third persons. “It is
sufficient to establish a jury question of
liability if the 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.”
Once the Court determined that the
landlord owed a duty to Ms. Young
and that the landlord had knowledge
of criminal acts occurring on its
premises, then the Court would be able
to consider all of the relevant factors
to determine if the level of security
provided by the Mall was reasonable.
Here it was learned that while there
were surveillance cameras in other
areas of the parking lot, the employee
parking lot was not so equipped.
Additionally, there was known drug
activity at the site and, at one point, a
drug sting by local police shortly after
the incident. There were numerous
other crimes, albeit not an attempted
car-jacking. However, no additional
supplemental security was provided in
the area of the employee parking lot.
Each of these factors, along with an
evaluation of the reasonableness of the
efforts by the Mall to prevent such third
party criminal acts, are fact questions
for a jury to resolve.
The importance of this decision shows
that the status of plaintiffs in premises
liability cases continues to become less
important as the courts attempt to
apply the same rules to all individuals at
a particular premise. We have seen this
in New Jersey, in the Supreme Court
decision Gonzalez v. Safe and Sound
decision [185 N.J. 100 (2005)], where an
individual’s status, either as a trespasser
or business invitee, mattered little
to the court when considering these
types of claims of third party actions.
Similarly, with regard to proof of known
criminal activity, the previous criminal
activity need only have occurred on the
precise premises- it need not be of the
same nature as the offending crime for
which the law suit is brought.
This decision expands the potential
liability
exposure
of
business
establishments by extending the higher
duty of care typically owed to business
invitees to employees of tenants as
well.
Carmelo (Tony) Torraca joined the firm as an associate in 2001 in the Defense Litigation Department and became a partner
in 2007. A seasoned attorney with experience in personal injury litigation, insurance defense and construction claims, Tony
concentrates his time in the defense of catastrophic and significant injury litigation arising from passenger and commercial
vehicle accidents, boating and marina accidents, construction defects and accidents, premises liability, product liability
defects and legal malpractice claims. An area of interest and focus is negligent security cases involving apartment complexes
and security companies as well as pest management and bedbug liability defense. Tony can be reached at 609.572. 7520 or
ctorraca@cooperlevenson.com
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