Opinion
CIVIL ACTION NO. 03-275
October 20, 2003
MEMORANDUM
Presently before the Court is Defendants Tosco Corporation's and Phillips 66 Company's (collectively "Defendants") Motion for Summary Judgment and Plaintiff Fay Chernoff's ("Chernoff" or "Plaintiff") Opposition thereto. For the reasons set forth below, Defendants' Motion is denied.
I. BACKGROUND
On or around April 20, 2001 at approximately 2:30 p.m. Chernoff, a resident of Philadelphia, Pennsylvania, was walking to her bank when she walked across Haverford Avenue and onto a sidewalk that bordered Defendants' property. After walking on the sidewalk for a few feet, Chernoff inadvertently stepped onto Defendants' property — a gas station that had been closed for several months — where she allegedly struck her head on a sign frame causing her to fall to the ground and suffer injury. The sign frame is a large metal frame that is connected to a metal pole, which is attached to the ground. At the time of the alleged incident, there was no sign in the frame — it was empty and see-through. The bottom corner of the fame was the same height as Chernoff's head, and based on pictures that both Plaintiff and Defendants supplied to the Court, the sign frame appeared to be at the edge of Defendants' property and only several inches off of the sidewalk. During her deposition, Chernoff admitted that she was neither invited onto the property, nor was she there for business.
On February 4, 2002, Chernoff filed a Complaint against Defendants in the Court of Common Pleas of Philadelphia County alleging that Defendants were negligent in maintaining their property and the sign. On or around January 21, 2003, Defendants removed the case to this Court. On or around August 6, 2003, Defendants filed their motion for summary judgment. The parties do not dispute that Pennsylvania law applies to this case.
II. STANDARD OF REVIEW
A motion for summary judgment will be granted where all of the evidence demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). Since a grant of summary judgment will deny a party its chance in court, all inferences must be drawn in the light most favorable to the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The ultimate question in determining whether a motion for summary judgment should be granted, is "whether reasonable minds may differ as to the verdict." Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120, 129 (3d Cir. 1998). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.
III. DISCUSSION
A. Licensee vs. Trespasser
Pennsylvania law has long held that the duty a land possessor owes to a person who enters his land is to be determined based on whether the entrant is a trespasser, an invitee or a licensee. Palange v. City of Philadelphia, 640 A.2d 1305, 1308 (Pa.Super. 1994). The parties do not dispute that Chernoff was not an invitee. The parties do, however, dispute whether Chernoff was a trespasser or a licensee. This is a crucial issue, as the duty of care that a land possessor owes to a trespasser is significantly less than the duty of care that he or she owes to a licensee.
The Restatement (Second) of Torts defines a trespasser as a person who enters or remains upon land in the possession of another without a privilege to do so. Id. The Restatement defines a licensee as "a person who is privileged to enter or remain on land only by virtue of the possessor's consent." Id; Ott v. Unclaimed Freight Co., 577 A.2d 894, 896 (Pa.Super. 1990). A land possessor may express consent to a licensee by acts rather than words. Ott. 577 A.2d at 897 (citing Restatement (Second) Torts § 330 comment e). A comment to the Restatement illustrates this point and states, "where a possessor permits individuals to cut across his or her property as a shortcut, the individuals who cross the property will be treated as licensees, not trespassers, unless the possessor posts notice or otherwise manifests an objection." Id. However, the Restatement also states that "under certain circumstances, consent may not necessarily be inferred from a landowner's failure to object or post a warning." Id. "Thus, whether a possessor's conduct maybe construed as consent depends upon the particular facts and circumstances of each case." Id.
As explained in the above-cited case law and the Restatement of Torts, the specific facts of each situation determine whether a person is a trespasser or a licensee. In a motion for summary judgment, the moving party bears the initial burden of showing that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986). Defendants have failed to meet their burden with regard to this issue. Defendants have not shown that there are no genuine issues of material fact with regard to whether Chernoff was a licensee or a trespasser. Rather, Defendants merely made unsupported assertions that there are no genuine issues of material fact, and Chernoff disputes those assertions.
Defendants' primary argument with regard to this issue is that because they did not invite Chernoff onto their property, and because they did not give verbal consent for her to be on their property, she must be a trespasser. (See Def. Br. at 11.) However, as the Ott Court stated, a land possessor's consent does not have to be in words, and whether or not there is consent depends upon the particular facts and circumstances of each case. Ott. 483 A.2d at 897. Additionally, the Restatement of Torts states that in some situations, when a land possessor permits people to walk across his or her land without objection, the entrant might be deemed a licensee. Id.
A thorough factual analysis is needed to make a determination whether a person is a trespasser or a licensee. Defendants, however, have only supplied a disputed and incomplete set of facts. As a result, the Court cannot determine as a matter of law whether Chernoff was a trespasser or licensee. Such a finding would be particularly inappropriate in this situation given that Pennsylvania Courts have repeatedly held that "generally, the determination of whether an individual is an invitee, licensee, or trespasser is one of fact for the jury." Palange, 640 A.2d at 1307. Because of the incomplete and disputed set of facts, Defendants have failed to meet their initial burden of establishing that there are no genuine issues of material fact, and the Court must deny summary judgment on this issue.
Defendants argue in the alternative that, even if Chernoff is considered a licensee, the Court should grant summary judgment because there are no genuine issues of material fact with regard to the duty of care they owed to Chernoff, and because they are entitled to judgment as a matter of law. (Def. Br. at 12.) The Restatement (Second) of Torts § 342 describes the duty of care owed to licensees as follows:
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.Ott, 577 A.2d at 898. As Chernoff correctly states, each of these three elements requires substantial findings of fact. Defendants, however, have failed to meet their burden of showing that there are no genuine issues of material fact. Defendants have not shown that there are undisputed facts that would allow this Court to reach a conclusion on each of the three elements. Again, Defendants have simply offered their own conclusory statements that there are no issues of fact, and Chernoff has disputed those statements. As a result, the Court must deny Defendants' motion for summary judgment.
B. Contributory Negligence
Lastly, Defendants argue that Plaintiff was contributorily negligent for walking into the sign frame, and that Plaintiffs negligence exceeded any possible negligence by Defendants. (Def. Br. at 13-15.) "Contributory negligence is conduct on the part of the plaintiff which falls below the standard of care to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiffs harm." Gorski v. Smith, 812 A.2d 683, 703 (Pa.Super. 2002). Under Pennsylvania's Comparative Negligence Statute, a plaintiff who is contributorily negligent is not barred from recovery if the defendant's causal negligence is greater than the plaintiffs contributory negligence. 42 Pa.C.S.A. § 7102(a). Plaintiffs recovery, however, "shall be diminished in proportion to the amount of negligence attributed to the plaintiff." Id.
Whether or not Plaintiff was contributorily negligent is a question that requires several facts to be resolved. Defendants have not met their burden of showing that there are no facts in dispute. Rather, Defendants have offered their own unsupported statements that are denied and disputed by Chernoff. Pennsylvania Courts have repeatedly held that contributory negligence can be found as a matter of law only in clear cases. Donlin v. J. J. Newberry Co., 466, A.2d 174, 176 ( Pa. Super. 1983). Defendants have not shown that this is a clear case.
Furthermore, as discussed previously, genuine issues of fact exist regarding whether Chernoff is a trespasser or an invitee and whether or not Defendants were negligent. By its definition, contributory negligence means that both parties were negligent to some degree, and Pennsylvania's comparative negligence statute requires a finding of each party's proportion of negligence. With so many facts still disputed, the Court cannot find as a matter of law that Chernoff is contributorily negligent, nor can the Court determine Defendants' and/or Chernoff's proportion — if any — of negligence.
IV. CONCLUSION
Based on the foregoing, Defendants have failed to meet their burden of establishing that there are no genuine issues of material fact. Accordingly, Defendants' motion for summary judgment is denied. An appropriate order follows.