Cresswell v. End

831 A.2d 673

Mary C. and Robert CRESSWELL, h/w, Appellants, v. Edward G. END, Appellee.

Superior Court of Pennsylvania.

Argued March 12, 2003.

Filed August 22, 2003.

Dennis R. Meakim, Glenside, for appellants.

Kenneth Sykes, Norristown, for appellee.

BEFORE: DEL SOLE, P.J., GRACI, and BECK, JJ.

OPINION BY GRACI, J.:

¶ 1 Appellants, Mary C. and Robert Cresswell (the "Cresswells"), appeal from an order entered August 14, 2002, in the Court of Common Pleas of Montgomery County, granting summary judgment in favor of Appellee, Edward G. End ("End"). We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 The trial court has provided us with a concise summary of the relevant facts:

On July 2, 1997 [Mrs. Cresswell] sustained injuries while in the performance of her duties as water meter reader for the Pennsylvania-American Water Company ("Pennsylvania-American"). On that date, [Mrs. Cresswell] was on Mr. End's premises located in Norristown, Pennsylvania to read the water meter. After reading the meter, [Mrs. Cresswell] fell into a window well. [Mrs. Cresswell] alleges that the window well was obscured by shrubbery and landscaping surrounding the window well. [Mrs. Cresswell] attributes her fall to Mr. End's failure to maintain the shrubbery and landscaping surrounding the window well.

At the time of [Mrs. Cresswell]'s accident the water meter was located on the outside of Mr. End's home, above the window well. (Defendant's Motion for Summary Judgment, Exhibit "E"). The meter had been in this location since September 12, 1989, when it was moved from the inside of Mr. End's home to the outside of his home by [Pennsylvania-American]. (Forest Brandon, III 12/17/99 p. 14). Mr. End did not have any input as to the relocation of the water meter. (Edward End 12/17/99 [p. 11]).

Additionally, deposition testimony revealed that [Mrs. Cresswell] had been to Mr. End's premises to read the water meter on numerous occasions prior to her accident in 1997 without any incident. (Mary Cresswell 12/17/99 p. 17-18). Forest Brandon, [Mrs. Cresswell]'s supervisor at the time of the accident, testified that it is the usual business practice of [Pennsylvania-American] to notify a homeowner when shrubbery or landscaping makes reading the water meter difficult. (Forest Brandon 12/17/99 p. 23-25). [Mr. End] was never notified by the company or any of its employees that any landscaping or shrubbery made reading his meter difficult or dangerous over the eight year period after the meter was moved to the location above the window well. Id. at 25.

Opinion, 10/15/02, at 1-2.

¶ 3 On August 12, 1999, the Cresswells filed a civil complaint against End seeking damages for Mrs. Cresswell's injuries. End moved for summary judgment and the parties proceeded to a hearing on August 6, 2002. The trial court granted End's motion and the Cresswells now appeal that decision. ¶ 4 The Cresswells' issues on appeal may be summarized as follows:

1. Whether the trial court erred in determining that Mrs. Cresswell was a licensee rather than an invitee upon End's property?

2. Whether the trial court erred in finding that End did not breach a duty of care owed toward Mrs. Cresswell?

See Brief of Appellants, at i.¹

II. SCOPE AND STANDARD OF REVIEW

Our review of the trial court's grant of summary judgment is plenary. Summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions and affidavits and other materials show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. [S ]ee Pa.R.C.P. 1035.1-1035.5. We must view the record in the light most favorable to the opposing party and resolve all doubts as to the existence of a genuine issue of material fact in favor of the nonmoving party. We will reverse the trial court's grant of summary judgment only upon an abuse of discretion or error of law.

Murphy v. Duquesne University of the Holy Ghost, 745 A.2d 1228, 1232-33 (Pa.Super.1999), aff'd, 565 Pa. 571, 777 A.2d 418 (2001) (citations omitted).

III. DISCUSSION

¶ 5 The Cresswells first challenge the trial court's determination regarding Mrs. Cresswell's legal status while she was an entrant upon End's property. It is well-settled that "[t]he duty of a possessor of land toward a third party entering the land depends upon whether the entrant is a trespasser, licensee, or invitee."² Updyke v. BP Oil Co., 717 A.2d 546, 549 (Pa.Super.1998) (citation omitted). Generally, the determination of an entrant's legal classification is one of fact for the jury. Palange v. City of Philadelphia, Law Dept., 433 Pa.Super. 373, 640 A.2d 1305, 1307 (1994), appeal denied, Palange v. Priori's Bar & Restaurant, 542 Pa. 649, 666 A.2d 1057 (1995). "Where the evidence is insufficient to support an issue, however, it may be appropriate for the court to remove that issue from the jury." Id. (citation omitted).

¶ 6 [A]n "invitee" is defined in the following manner:

(1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

Restatement (Second) of Torts § 332 (1965), cited with approval in Palange, 640 A.2d at 1308. 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." Restatement (Second) of Torts § 330 (1965), cited with approval in Palange, 640 A.2d at 1308.

¶ 7 The distinction between invitation and permission forms the basis for distinguishing an invitee from a licensee.

Although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they so desire.

Restatement (Second) of Torts § 332 cmt. b (1965), cited with approval in Palange, 640 A.2d at 1308.

¶ 8 The Cresswells argue that, based upon Restatement (Second) of Torts § 345, Mrs. Cresswell was an invitee. Section 345 states generally that "the liability of a possessor of land to one who enters the land only in the exercise of a privilege, for either a public or a private purpose, and irrespective of the possessor's consent, is the same as the liability to a licensee." Restatement (Second) Torts § 345(1) (1965). However, under section 345(2), public officers and employees who enter land in the performance of a public duty enjoy the status of invitees. Comment C to section 345, upon which the Cresswells rely specifically, provides further explanation:

The rule stated in Subsection (1) applies where there is entry only under a privilege to enter, without any additional factors which may increase the obligation of the possessor to the visitor. Those who enter land in the exercise of a privilege conferred by authority of law, irrespective of the possessor's consent, may have the status of invitees, as stated in § 332, if they come for a purpose directly or indirectly connected with the business of the possessor. In that event they are entitled to the greater protection afforded to invitees, under the rules stated in §§ 341A and 343. Thus a building, sanitary, or safety inspector who enters business premises to perform his public duty is an invitee, since his presence is closely connected with the business conducted there, and may even be indispensable to it. The same is true of public employees who enter a private residence for the purpose of some business with the possessor, as in the case of a garbage collector, or the reader of a city water meter.

Id., Comment C (emphasis added).

¶ 9 As the trial court noted, our Supreme Court expressly declined to adopt section 345 in Rossino v. Kovacs, 553 Pa. 168, 718 A.2d 755 (1998), and we are not at liberty to diverge from that ruling. Foflygen v. R. Zemel, M.D. (PC), 420 Pa.Super.18, 615 A.2d 1345, 1353 (1992),appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993) ("As an intermediate appellate court, this Court is obligated to follow the precedent set down by our Supreme Court."). Nor do we find the language in comment C to be persuasive here. Mrs. Cresswell was not a "public employee" but, rather, was employed by a private concern. She did not enter End's "private residence" at any time during her visit to his premises. For these reasons, we decline to follow the Cresswell's reliance upon section 345.

¶ 10 Applying the law of this Commonwealth to the instant case, we find that Mrs. Cresswell was a licensee upon End's land. End's conduct, as a customer of Pennsylvania-American, was to give permission to the company and its employees to enter his premises for the purpose of reading the water meter. End did not specifically invite Mrs. Cresswell to enter his property, nor did his tacit permission rise to the level of an invitation. Therefore, as one who was privileged to enter End's land only by virtue of End's permission, Mrs. Cresswell was a licensee as that term is defined in the Restatement and relevant caselaw. Moreover, since the evidence was insufficient to support a finding that Mrs. Cresswell was an invitee, the trial court properly determined her status as a matter of law.

¶ 11 The Cresswells next argue that the trial court erred in determining, as a matter of law, that End did not breach any duty of care owed to Mrs. Cresswell, whom we have already determined was a licensee upon End's property. The duty owed a licensee in Pennsylvania was established by our Supreme Court in Sharp v. Luksa, 440 Pa. 125, 269 A.2d 659 (1970), when it adopted the language of section...