Filing 119


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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA G E O R G E CATER and CHERYL CATER, P la in tif f s , v. S T A R B U C K S CORPORATION, et al., D e f e n d a n ts. C iv il Action No. 07-2660 M EM ORANDUM A u g u s t 10, 2010 Pollak, J. P la in tif f s George Cater and Cheryl Cater filed suit in the Court of Common Pleas o f Philadelphia County, alleging negligence and loss of consortium arising from a fall on th e allegedly icy Starbucks parking lot (docket no. 1). The defendants were Starbucks a n d Paul Mastropieri, the owner of the parking lot, who leased to Starbucks the building in which Starbucks was located and which was adjacent to the parking lot (docket no. 1). O n grounds of diversity defendants removed the suit to this court (docket no. 1). In its answer, Starbucks brought a cross-claim for indemnification and breach of contract a g a in s t Mastropieri (docket no. 3). Starbucks then joined as third-party defendants the B e e r Yard, which shared the parking lot with Starbucks, and Anthony Marchesani, who p lo w e d the parking lot (docket nos. 9 & 10). Marchesani then brought a claim for 1 indemnification against Mastropieri (docket no. 20). The Caters, in an amended c o m p la in t (docket no. 30), then brought claims against the third-party defendants, M a rc h e s a n i and the Beer Yard. S e v e ra l motions for summary judgment have been filed, including: Starbucks' m o tio n for summary judgment against the Caters, based on an open, obvious, and known c o n d itio n /a s s u m p tio n of risk (docket no. 89); Starbucks' motion for summary judgment a g a in s t the Caters and Mastropieri, based on a lack of duty and for indemnification (d o c k e t no. 90); Mastropieri's motion for summary judgment on all claims against him (d o c k e t no. 88), Beer Yard's motion for summary judgment on all claims against it (d o c k e t no. 86); and Marchesani's motion for summary judgment on all claims against h im (docket no. 87). T h is memorandum and accompanying order address the motion for summary ju d g m e n t against the Caters and Starbucks (docket no. 86) filed by the third-party d e f e n d a n t 218 MJG, Inc., which does business as the Beer Year (hereinafter, Beer Yard). Plaintiffs (docket no. 98) and defendant Starbucks (docket no. 100) have responded and th e Beer Yard has replied (docket no. 103). I. F acts C h e ryl Cater alleges that she fell in the parking lot located at 218 East Lancaster A v e n u e , Wayne, Pennsylvania. The property consists of a circular building leased to S ta rb u c k s and a rectangular building leased to the Beer Yard, a retail store and beverage 2 distributor. The property includes a common parking lot and driveway between the two b u ild in g s , portions of which the Beer Yard admits its customers use. 218 MJG, Inc.'s M o t. for. Summ. J., at 7. In an addendum to the lease between the Beer Yard and M a s tro p ie ri, the owner of the property, the Beer Yard agreed to "cooperat[e] with the f ro n t tenant in keeping the driveway and parking lot clean and clear of ice and snow." 218 MJG's Exh. E, at 6. O n February 15, 2006, Cheryl Cater and her husband, George, drove to the S ta rb u c k s at 218 East Lancaster Avenue. 218 MJG's Exh. C, at 64-65 (Depo. of Cheryl C a te r). The night before there was "an icy rain." Id. at 77. Cheryl Cater described the ic e as "all across the entire parking lot" and "continuous throughout the entire yard or lo t." Id. at 77, 80. The Caters observed a woman, Libby Schwartz, lying in the middle of th e parking lot. Id. at 56. The Caters stopped their car and George carried Schwartz to th e back door of the Starbucks. Id. at 74. A s she got out of her car, Cheryl Cater was concerned about her ability to walk a c ro s s the parking lot due to the ice. Id. at 81. Cheryl Cater went inside the Starbucks to w h e re Schwartz and George Cater were located. Id. at 82. Cheryl Cater stayed with S c h w a rtz until an EMT arrived. Id. at 83-84. At that point Schwartz asked Cheryl Cater to retrieve Schwartz's purse from her car, because it contained her medical information. Id. at 86-87. To reach Schwartz's car, Cheryl Cater had to again cross the parking lot w h e re any path she chose to take would be icy. Id. at 87-89. In trying to reach 3 Schwartz's car, Cheryl Cater slipped and fell in the area where Schwartz's car was lo c a te d . Id. at 92-93. These events occurred at approximately 9:00 a.m. Id. at 61. According to M a tth e w Guyer, the sole proprietor of the Beer Yard, the Beer Yard did not open until 1 0 :0 0 a.m. that day. 218 MJG's Exh. D, at 10 (Depo. of Matthey Guyer). Guyer also s ta te d at this deposition that, prior to the autumn of 2005, both Starbucks and the Beer Y a rd would contact the person doing the snow removal, Joseph Nudy, when needed. Id. a t 29. However, in 2005, once defendant Anthony Marchesani begun to plow the parking lo t, only Starbucks and not the Beer Yard would contact him. Id. Guyer was aware that th e parking lot had a drainage problem that would result in run-off forming puddles and th e n freezing. Id. at 35-37. An employee of the Beer Yard, Mark Sauerbrey, stated that he had observed ice in th e parking lot. Starbucks Exh. B-1, at 30 (Depo. of Mark Sauerbrey). If there was ice, h e would either salt it or inform Starbucks. Id. This included the area where Mrs. Cater f e ll. Id. at 34. He also indicated that Guyer had done the same. Id. at 38. Saurbrey s ta te d that there was an area where water would regularly pool and freeze that he would s a lt as needed. Id. at 45-46, 51. He also indicated that he began salting the parking lot a f te r seeing Mrs. Cater cross the icy lot on the day of the incident but its unclear from the d e p o s itio n transcript whether this was before or after she fell. Id. at 52. 4 II. A n a ly sis S u m m a ry judgment is appropriate where "the pleadings, depositions, answers to in te rro g a to rie s , and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a ju d g m e n t as a matter of law." Fed. R. Civ. P. 56(c); IFC Interconsult, AG v. Safeguard In t'l Partners, L.L.C., 438 F.3d 298, 317 (3d Cir. 2006). Facts are material if they "bear o n an essential element of the plaintiff's claim." Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3 d Cir. 2002) (quoting Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999)). Further, th e re is a genuine issue of material fact if "a reasonable jury could find in favor of the n o n m o v in g party." Id. A party seeking summary judgment carries the initial burden of informing the c o u rt of the basis for its motion and identifying the portions of the record that show that th e re is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1 9 8 6 ). In this instance, the non-moving party would bear the burden of proof at trial. Consequently, the moving party must show that the non-moving party cannot support her c a s e with the evidence in the record. Celotex, 477 U.S. at 325. To rebut, the non-moving p a rty must identify facts that create a genuine issue of dispute for trial. Fed. R. Civ. P. 5 6 (e ); Hampton v. Borough of Tinton Falls Police Dept., 98 F.3d 107, 112 (3d Cir. 1996). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate in f e re n c e s from the facts are jury functions, not those of a judge . . . . The evidence of the 5 non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). T h e Beer Yard argues that, as the plaintiffs were in the parking lot for the purpose o f going to the Starbucks, and the Beer Yard was not open at the time, plaintiffs have the s ta tu s of a licensee, and not an invitee, when determining to what extent the Beer Yard o w e d them a duty. It also argues that the addendum to its lease absolves it from any p rim a ry responsibilities with regard to keeping the parking lot free of snow and ice. A. T h e Beer Yard may have Voluntarily Assumed Duties to Keep the P a r k in g Lot Free of Ice and Snow T h e Beer Yard argues that it owes the Caters, not the duty owed to an invitee, but th e lesser duty owed to a licensee. "A business invitee is a person who is invited to enter o r remain on the land of another for a purpose directly or indirectly connected with b u s in e s s dealings with the possessor of the land." Emge v. Hagosky, 712 A.2d 315, 317 (P a . Super. Ct. 1998) (citations omitted). "The duty owed to a business invitee is the h ig h e s t duty owed to any entrant upon land." Id. (citation omitted). The duty owed to a licensee would be less than that owed to an invitee. For lic e n s e e s , the Pennsylvania courts have adopted Restatement (Second) of Torts 343, w h ic h states: Regarding conditions on the land which are either known to or discoverable by the p o s s e s s o r, the possessor is subject to liability only if he (a ) knows or by the exercise of reasonable care would discover the condition, and s h o u ld realize that it involves an unreasonable risk of harm to such invitees, and (b ) should expect that they will not discover or realize the danger, or will fail to 6 protect themselves against it, and (c ) fails to exercise reasonable care to protect them against the danger. C o c h r a n e v. Kopko, 975 A.2d 1203, 1206 (Pa. Cmwlth. Ct. 2009) (quoting Restatement (S e c o n d ) of Torts 343 (1965)). I need not decide the invitee/licensee status of the Caters with regard to the Beer Y a rd . Pennsylvania has adopted 323 of the Restatement (Second) of Torts which finds: O n e who undertakes, gratuitously or for consideration, to render services to a n o th e r which he should recognize as necessary for the protection of the other's p e rs o n or things, is subject to liability to the other for physical harm resulting from h is failure to exercise reasonable care to perform his undertaking, if (a ) his failure to exercise such care increases the risk of such harm, or (b ) the harm is suffered because of the other's reliance upon the undertaking. D e J e su s v. Liberty Mut. Ins. Co., 223 A.2d 849, 850 (Pa. 1966) (quoting Restatement (S e c o n d ) Torts 323 (1965)). A party can gratuitously assume a duty, even if a general c o m m o n -la w rule would have found there to be no duty. See Feld v. Merriam, 485 A.2d 7 4 2 , 746 (Pa. 1984) ("[A]lthough there is a general rule against holding a person liable f o r the criminal conduct of another . . . there is also an exception to that rule, i.e., where a p a rty assumes a duty, whether gratuitously or for consideration, and so negligently p e rf o rm s that duty that another suffers damage."). A genuine issue of material facts exists as to whether the Beer Yard assumed a d u ty to keep the parking lot free of ice and snow. The deposition of Mark Sauerbrey, an e m p lo ye e of the Beer Yard, indicates that he and Guyer, the proprietor of the Beer Yard, w o u ld regularly salt icy areas of the parking lot. In addition, Sauerbrey testified that he w o u ld inform Starbucks if the parking lot needed to be cleared of ice or snow. The Beer 7 Yard may have assumed a duty to salt the parking lot or inform Starbucks of issues in the lo t by regularly doing so as Sauerbrey testified. The failure to continue to do so in a re a s o n a b le manner could have increased the risk to Cheryl Cater. Such facts, if true, c o u ld be construed by a reasonable jury to constitute an assumption of a duty by the Beer Y a rd to keep the parking lot clear of ice and snow. B. T h e Beer Yard's Lease does Not Absolve it of Responsibility for Snow a n d Ice Removal T h e Beer Yard also argues that it cannot be held liable because a provision in the le a s e addendum absolves it of any duty to remove snow and ice. The provision states that B e e r Yard must pay 25% of all parking lot maintenance "in addition to cooperating with th e front tenant in keeping the driveway and parking lot clean and clear of ice and snow." 218 MJG's Exh. E, at 6. "The fundamental rule in interpreting a contract is to ascertain and give effect to th e intent of the contracting parties." Crawford Cent. Sch. Dist. v. Commonwealth, 888 A .2 d 616, 623 (Pa. 2005) (citations omitted). "When contractual language is clear and u n e q u iv o c a l, its meaning must be determined by its contents alone." Id. I find the Beer Yard's interpretation of the lease unpersuasive. The promise to c o o p e ra te with other tenants, is, if anything, an assumption of the duty to keep the parking lo t clear of ice and snow, not an indemnification for the failure to do so. MerriamW e b s te r's Dictionary defines cooperate as meaning " to act or work with another or o th e rs: act together or in compliance" or "to associate with another or others for mutual 8 benefit."1 The promise to cooperate with another tenant is best interpreted as creating a s h a re d duty and not absolving the Beer Yard of responsibility. III. C o n c lu s io n F o r the foregoing reasons, I will deny the Beer Yards' motion for summary ju d g m e n t against the Caters and against Starbucks. An appropriate order accompanies th is memorandum. See Merriam-Webster's Online Dictionary, (last visited June 21, 2010). 9 1

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