Opinion
No. 05-4246.
Submitted Under Third Circuit LAR 34.1(a) November 8, 2006.
Filed: January 10, 2007.
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.
Thaddeus J. Bartkowski, Villanova, PA, for Appellant.
John A. Fitzpatrick, Mylotte, David Fitzpatrick, Broomall, PA, for Burger King Corp.
Before: SCIRICA, Chief Judge, McKEE and STAPLETON, Circuit Judges.
OPINION
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.
The District Court had jurisdiction pursuant to 28 U.S.C. 1332(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291.
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. However, the District Court carefully explained why it predicted that the 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, 156 Pa.Cmwlth. 113, 625 A.2d 1326 (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, 256 N.J.Super. 247, 606 A.2d 1108, 1109-11 (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.
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 by him, are known to him and which they neither know nor are likely to discover.
Restatement (Second) of Torts § 349 (1965).
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 and 364. We disagree.
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 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).
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).
As the District Court explained, this argument is precluded by Gardner ex rel. Gardner v. Consolidated Rail Corporation, 524 Pa. 445, 573 A.2d 1016, 1019 (1990). There, plaintiff relied upon the Restatement (Second) of Torts including §§ 343 and 365 in arguing that a city and a railroad were liable for injuries he sustained while crossing the defendant's rail-road 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.
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).
Plaintiff's claim fares no better under § 364. Rosas' argument under that section of the Restatement mirrors Justice Montemuro's dissent in Majestic by Majestic v. Commonwealth of Pennsylvania, 537 Pa. 81, 641 A.2d 295, 296-99 (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, Cruet v. Certain-Teed Corp., 432 Pa.Super. 554, 639 A.2d 478, 481 (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.