Hackett v. Indian King Residents Ass'n

195 A.3d 248

Ruthann HACKETT Appellant

v.INDIAN KING RESIDENTS ASSOCIATION

No. 3600 EDA 2017

Superior Court of Pennsylvania.

Argued June 20, 2018

Filed August 29, 2018

Marc F. Greenfield, Philadelphia, for appellant.

Audrey J. Copeland, King of Prussia, for appellee.

BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT^* , J.

OPINION BY SHOGAN, J.:

This is an appeal by Plaintiff-Appellant, Ruthann Hackett, following a jury's defense verdict in favor of Appellee, Indian King Residents Association ("IKRA"). Following our careful review, we affirm.

Appellant sued to recover for injuries from a fall caused by branches on steps in a common area leading to her townhouse¹ on January 30, 2013. N.T., 7/31/17, at 27. Allegedly, the branches fell on January 30, 2013; Appellant testified that she could not see them in the dark as she climbed the steps that evening. Id. at 35. The townhouse is located in Indian King, a mixed townhome/single-family-home community in West Chester, Chester County, Pennsylvania. N.T., 7/31/17, at 17–18. IKRA is a homeowners' association created by a Declaration of Covenants, Conditions and Restrictions ("Declaration")² under the Uniform Planned Community Act ("UPCA"), 68 Pa.C.S. § 5101 – 5414. In the two years following the injury, Appellant underwent three surgeries. N.T., 7/31/17, at 30–34.

The trial court summarized the procedural history as follows:

A two-day trial concluded August 1, 2017 with the jury returning a verdict of "no negligence" in favor of IKRA. (Vol. II, 215:11-20) [Appellant] filed timely a post-trial motion seeking a new trial, which was argued and then denied on October 12, 2017. [Appellant] filed timely an appeal on October 18, 2017 from the order denying post-trial motion relief.^{[3 ]}[Appellant] next filed a Concise Statement of the Matters Complained of on Appeal preserving two issues. First, [Appellant] maintains that we improperly found [Appellant] to be a licensee, rather than an invitee, in the common area and therefore gave an improper standard of care charge to the jury. Second, [Appellant] maintains that we improperly denied her motion to remove the question of factual cause from the verdict sheet.

Trial Court Opinion, 12/6/17, at 1.

Appellant raises the following issues on appeal:

1. Question: Did the trial court err in charging the jury that Appellant was a licensee, over Appellant's objection and position that Appellant was an invitee?

2. Question: Did the trial court err in failing to read a specialized instruction, based on Appellee's obligations as a property manager?

3. Question: Did the trial court err when in submitting a verdict form to the jury which included a question regarding the factual cause of Appellant's injury, when Appellee's medical expert conceded that Appellant had been injured, as a result of the subject incident?

Appellant's Brief at 4.

Our standard of review in denying a motion for a new trial is to decide "whether the trial court committed an error of law which controlled the outcome of the case or committed an abuse of discretion." Stapas v. Giant Eagle, Inc. , 153 A.3d 353, 359 (Pa. Super. 2016), appeal denied , 171 A.3d 1286 (Pa. 2017). In order for liability to be imposed upon a defendant in a negligence action, the plaintiff must establish the existence of a duty or obligation recognized by law, a breach of that duty, a causal connection between the defendant's breach of that duty and the resulting injury, and actual loss or damage suffered by the complainant. T.A. v. Allen , 447 Pa.Super. 302, 669 A.2d 360, 362 (1995) ; Reilly v. Tiergarten Inc. , 430 Pa.Super. 10, 633 A.2d 208, 210 (1993). "Where there is no duty of care, there can be no negligence." T.A. , 669 A.2d at 362.

Appellant first argues that the trial court erred in concluding she was a licensee, not an invitee, when she fell on IKRA property. Appellant's Brief at 18.⁴ Her theory is that IKRA's business is that of property manager, and as such, it is responsible for keeping common areas safely maintained. Id. at 19. She avers that by virtue of paying "maintenance fees," she became an invitee. Id. Appellant suggests the trial court "simply got the facts wrong." Id.

Appellant also posits that she was an invitee pursuant to the "Statute Governing Specialized Duty Owed by Condominium Associations to Residents." Appellant's Brief at 21. She refers this Court to the Uniform Condominium Act ("UCA"), 68 Pa.C.S. §§ 3101 to 3414, suggesting that IKRA's duty to maintain the common areas is "not affected by whether its residents have actual notice of any defects." Appellant's Brief at 22 (citing UCA at § 3307).

It is settled law that the "duty of a possessor of land toward a third party entering the land depends upon whether the entrant is a trespasser, licensee, or invitee." Stapas , 153 A.3d at 365 (citation omitted). "These are not self-defining terms, and in applying them to a set of circumstances we are guided by the definitions in the Restatement, 2nd, Torts, 1965 §§ 328-343, which have been adopted by Pennsylvania law." Wiegand by Wiegand v. Mars Nat'l Bank , 308 Pa.Super. 218, 454 A.2d 99, 101 (1982) (citations omitted).⁵ "Generally, the determination of whether an individual is an invitee, licensee, or trespasser is one of fact for the jury. Where the evidence is insufficient to support an issue, however, it may be appropriate for the court to remove that issue from the jury."⁶ Stapas , 153 A.3d at 365–366, (citing Palange v. City of Philadelphia, Law Dept. , 433 Pa.Super. 373, 640 A.2d 1305, 1307 (1994) ).

A "licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent." Restatement (Second) of Torts ("Restatement"), § 330 Licensee Defined. Comment h to Section 330 illustrates those persons included under the status of "licensees:"

h. Persons included . Included under licensees, among others, are three types of persons:

1. One whose presence upon the land is solely for his own purposes, in which the possessor has no interest, and to whom the privilege of entering is extended as a mere personal favor to the individual, whether by express or tacit consent or as a matter of general or local custom.

2. The members of the possessor's household, except boarders or paying guests and servants, who, as stated in § 332, Comments i and j, are invitees.

3. Social guests. Some confusion has resulted from the fact that, although a social guest normally is invited, and even urged to come, he is not an "invitee," within the legal meaning of that term, as stated in § 332.... [T]he decisions thus far have been all but unanimous to the effect that the social guest is no more than a licensee.

The Restatement, § 330 cmt. h .

A possessor of land is subject to liability to his licensees for physical harm caused to them only in certain instances, as follows:

by his failure to carry on his activities with reasonable care for their safety if, but only if,

(a) he should expect that they will not discover or realize the danger, and

(b) they do not know or have reason to know of the possessor's activities and of the risk involved.

The Restatement, § 341.

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 342 of the Restatement. Section 342 addresses dangerous conditions known to the possessor of land. Therein, a possessor of land is subject to liability for physical harm caused to licensees by a condition on the land in designated circumstances 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.

The Restatement, § 342. The "conjunctive wording of [S]ection 342 indicates that a possessor of land is subject to liability only if all three criteria are present." Cresswell v. End , 831 A.2d 673, 677 (Pa. Super. 2003). Moreover, Comment h to Section 342 states:

h. A possessor of land who permits licensees to enter is subject to liability for bodily harm caused to them by the dangerous state in which he permits a natural or artificial condition to remain, if, but only if, he not only knows of the condition but also should realize that it involves an unreasonable risk of causing physical harm to the particular licensee harmed thereby. In determining whether the possessor should realize that a known condition involves not only a risk but an unreasonable risk, the character of the invitation or permission is important. A condition, no matter how dangerous to those who come in contact with it, can involve risk to a particular licensee only if he may be expected to encounter it in the exercise of his license. Thus, if a possessor gives to another a license to come upon the land by day, he may have no reason to expect the licensee to enter by night. Therefore he may be under no duty to warn the licensee of a condition which would be obvious in daylight....

The Restatement, § 342, cmt h.

The Restatement defines an "invitee" as follows:

(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.

Comment

a. Invitee . "Invitee" is a word of art, with a special meaning in the law. This meaning is more limited than that of "invitation" in the popular sense, and not all of those who are invited to enter upon land are invitees. A social guest may be cordially

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