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www.cooperlevenson.com NEW JERSEY PENNSYLVANIA DELAWARE NEVADA

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.

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 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.

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

By Carmelo T. Torraca, Esq.

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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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