Park and Cross At Your Own Risk

Defense Digest, Vol. 23, No. 3, September 2017

By Claire B. Ventola, Esq.*

On January 19, 2017, in Newell v. Mont. West, Inc., 2017 Pa. Super. LEXIS 40, No. 281 EDA 2016 (Pa.Super. Ct. 2017), a case of first impression, the Superior Court of Pennsylvania held that a property owner or possessor of land adjacent to a roadway does not owe any legal duty to business invitees injured while they are crossing that roadway. In so holding, the court rejected the plaintiff’s allegation that the defendant caused the plaintiff-decedent’s accident because it did not provide adequate parking to its invitees, which created an unsafe condition on its property. The Superior Court held that a property owner or operator owes no duty to its business invitees to provide adequate parking. According to the court, to impose such a duty on property owners and operators would create a new duty that would significantly burden property owners and operators across Pennsylvania and would expose them to greatly expanded potential liabilities.

In Newell, the plaintiff-decedent was fatally struck by a motor vehicle while crossing Route 309 to return to his car, which was parked across Route 309 on another’s property, following a concert at the defendant’s nightclub. The plaintiff alleged that the nightclub owner and operator was negligent because it failed to protect is invitees from dangers on adjoining public highways, failed to provide sufficient parking for its invitees and failed to warn its business invitees of the adjacent highway’s dangers, even though those dangers were known to the property owner and operator. At the trial court level, Judge Lachman granted summary judgment in favor of the property owner and operator of the nightclub, finding that the defendant owed no duty of care to the decedent at the time of his death because his accident occurred while he was crossing Route 309, not on any property owned or possessed by the defendants. On appeal, the Superior Court affirmed Judge Lachman’s holding.

The Newell court held that, “[u]nder Pennsylvania law, state highways are the property of the Commonwealth. The Commonwealth has the exclusive duty for the maintenance and repair of state highways.” (Allen, 625 A.2d at 1328-29.) The court cited Restatement (Second) of Torts § 349 for the proposition that a possessor of land abutting a public highway owes no duty to maintain said highway or to protect pedestrians—including business invitees—injured by alleged “hazards” or “dangerous conditions” of that highway while crossing the street. Specifically, the court stated:

A pedestrian who walks on a public highway places himself at risk of injury from vehicles traveling on the highway. Any duty of care owed to that pedestrian must belong to those who maintain the road and those motorists who are licensed to drive safely on it. The duty does not extend to landowners who have premises adjacent to the roadway. (Emphasis added.)

Moreover, the Newell court specifically held that a landowner does not owe any duty to provide its guests or business invitees with adequate parking. The court stated:

A landowner may not be held liable to a business invitee for injuries that occur to the invitee on an adjoining highway or other property as a result of breach by the landowner of an alleged duty to provide sufficient parking on its own premises. We hold that no such duty arises under Pennsylvania law that would form the basis for a negligence action in these circumstances. (Emphasis added.)

Finally, the Newell court rejected the plaintiff’s argument that Restatement 2d Torts § 323 creates a duty to warn where a property owner or operator has previously warned invitees about conditions of the adjacent highway. The court found that the property owner’s sporadic protective conduct did not create a duty of voluntary assumption to protect its invitees from accidents on the adjacent highway. The court held that such a theory of voluntary assumption of a duty to protect patrons from highway accidents raises significant public policy concerns because highway safety is a governmental responsibility. Therefore, a property owner and operator has no duty to warn its invitees of dangers of an adjacent highway, and if a property owner or operator chooses to so warn, no duty is created.

*Claire is a shareholder in our Philadelphia, Pennsylvania office. She can be reached at 215.575.2789 or cbventola@mdwcg.com.

_{Defense Digest, Vol. 23, No. 3, September 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}