DELEO v. LANDMARK THEATRES et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 2/26/2015. 2/26/2015 ENTERED AND COPIES E-MAILED. (ems)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LANDMARK THEATRES d/b/a
RITZ EAST, et al.
February 26, 2015
This action arises from a slip-and-fall accident that
occurred outside of the Ritz East movie theater located at 125
South Second Street, Philadelphia, Pennsylvania.
Judy DeLeo, filed a negligence action against the Philadelphia
Parking Authority (“PPA”) and the United States of America
Both of these defendants filed motions for summary
The Court grants PPA’s motion for summary judgment
because PPA is immune from liability as a local agency.
Court denies USA’s motion for summary judgment because there is
a disputed issue of material fact.
Summary Judgment Record
The Ritz East theater was contained within a building
owned by USA through the National Park Service (“NPS”) and
leased to PPA.
In addition to the theater, the building
contained a Chinese restaurant, a five-story parking garage, and
a night club.
The building is bordered by Front Street to the
east, 2nd Street to the west, Ionic Street to the north, and
Sansom Street and Sansom Walk to the south.
USA’s Mot. Ex. 2
(hereinafter, the “Lease”).
Sansom Street and Sansom Walk are of particular
importance to this case.
Starting from 2nd Street, Sansom Street
and Sansom Walk run west-to-east.
The western half, Sansom
Walk, is a pedestrian walkway only and is closed to vehicles.
It is bordered by a park to the south.
The eastern half, Sansom
Street, connects to Front Street on its eastern end and is open
to both vehicular and pedestrian traffic.
Sansom Street is
bordered by a private parking lot to the south, and bordered on
the north by the South Walkway, which is open only to pedestrian
Sansom Walk and Sansom Street are separated by a gate.
Pl.’s Opp. to PPA’s Mot. Exs. 2-3.
The South Walkway borders Sansom Street to the north,
and is immediately adjacent to the building housing the Ritz
It is constructed with concrete, slate, and brick
The Chinese restaurant has outdoor seating on the South
Walkway, and there are numerous trees and places to sit along
The main entrance to the Ritz East theater is on
the South Walkway.
Pl.’s Opp. to PPA’s Mot. Exs. 2-3.
On January 28, 2011, DeLeo went with a friend to see a
movie at the Ritz East theater.
It had recently snowed, and
there was an accumulation of a few inches of snow on the ground.
After parking on 2nd Street, DeLeo and her friend walked down
Sansom Walk and onto the South Walkway.
The snow on the South
Walkway had been partially cleared, but had not been treated for
any ice or snow melt and was slippery with patches of ice.
DeLeo Dep. 40:12-41:10, 42:24-44:10, 91:3-92:22.
To find better traction, DeLeo moved from the cleared
path to the snowy area.
She subsequently slipped on ice and
DeLeo suffered a left patellar fracture as a result of
DeLeo Dep. 44:4-19, 52:17-20, 55:21-56:12.
There is a dispute over which defendant cleared snow
and ice from the South Walkway.
The Lease between PPA and USA
provided that PPA would be solely responsible for “maintaining
the condition of the adjacent sidewalks, pavements curbs and
grounds on the Premises, in good condition, including without
limitation, ensuring that the sidewalks, pavements and curbs are
free of hazards and/or defects, and removal of snow and ice . .
Lease § 8.1(f).
There is no language in the lease that
carves out the South Walkway from PPA’s general duty to maintain
the sidewalks adjacent to the property.
Steven Sims, USA’s
designee, testified that NPS did not engage in any snow or ice
removal on the South Walkway.
Morrotto Dep. 20:17-20; Sims Dep.
Despite the language in the lease, PPA’s designee,
Rocco Morrotto, testified that PPA did not actually have the
responsibility to maintain the South Walkway.
testified that NPS has, “over many, many, many years,”
maintained the South Walkway and removed any snow or ice that
would accumulate on the South Walkway.
Morrotto Dep. 21:5-14.
Morrotto testified that PPA does not perform any maintenance or
upkeep on the South Walkway, and that he personally observed NPS
personnel clearing snow form the South Walkway.
In addition to her claim against PPA and USA, DeLeo
also initially filed a claim against Landmark Theatres d/b/a
Ritz East (“Landmark”) and Silver Holdco Inc.
stipulated to the dismissal of the claim against Landmark, and
the Court dismissed the claim against Silver Holdco Inc.
III. Summary Judgment Standard
Under Fed. R. Civ. P. 56, a party moving for summary
judgment must show that there is no genuine issue as to any
material fact and that judgment is appropriate as a matter of
Fed. R. Civ. P. 56(a).
The moving party bears the initial
burden of demonstrating the absence of any genuine issue of
Celotex Corp. v. Catrett, 477 U.S. 317, 323
Once a properly supported motion for summary judgment
is made, the burden shifts to the nonmoving party, who must set
forth specific facts showing that there is a genuine issue for
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment.
Id. at 247-48.
USA’s Motion for Summary Judgment
USA’s motion for summary judgment is denied because
there is a disputed issue of material fact:
maintained the South Walkway.
This suit was brought against USA
under the Federal Tort Claims Act, 28 U.S.C. § 1346(b).
the incident occurred in Pennsylvania, Pennsylvania tort law is
applicable under the FTCA.
Fisher v. United States, 441 F.2d
1288, 1289 (3d Cir. 1971).
To establish a claim for negligence under Pennsylvania
law, a plaintiff must show:
(1) a duty or obligation recognized by the
law, requiring the actor to conform to a
certain standard of conduct for the
protection of others against unreasonable
risks; (2) a failure to conform to the
standard required; (3) a causal connection
between the conduct and the resulting
injury; and (4) actual loss or damage
resulting in harm to the interests of
Nw. Mut. Life Ins. Co. v. Babavan, 430 F.3d 121, 139 (3d Cir.
USA argues only that DeLeo cannot show that USA owed
her a duty.
Generally, under Pennsylvania law, a landlord out
of possession is not liable for injuries suffered by third
parties on the leased premises.
Dinio v. Goshorn, 437 Pa. 224,
228-29 (1969); see also Hymes v. Great Lakes Warehouse, 2014 WL
1022462, at *3 (E.D. Pa. Mar. 17, 2014) (citing Dinio).
There are several exceptions to this general rule, two
of which DeLeo argues apply here.
First, “where the landlord
retains control of a part of the leased premises . . . he is
liable to the lessee and others lawfully on the premises for
physical harm caused by a dangerous condition existing upon that
part over which he retains control . . . .”
Realty Co., 423 Pa. 536, 539 (1967).
Smith v. M.P.W.
Second, “a landlord
undertaking to repair the premises leased, and repairing them
negligently thereby causing injury is liable for his tort.”
Green v. Independent Oil Co., 414 Pa. 477, 486 (1964).
There is testimony that, despite the provision in the
lease creating a duty on the part of PPA to maintain the South
Walkway, NPS employees in fact always maintained the walkway and
cleared it of snow and ice.
This evidence would be sufficient
for a jury to find that USA maintained control over the South
In Juarbe v. City of Philadelphia, 431 A.2d 1073,
1080-81 (Pa. Super. Ct. 1981), the court held that a landlord
retained control over a leased premises despite language in the
lease giving the lessee the duty to maintain the premises.
landlord retained control by frequently inspecting the premises
to ensure it complied with sanitary standards.
violations of these standards would cause the landlord to refuse
to offer the tenant a renewal of the lease.
Similarly, in Ozer v. Metromedia Restaurant Group,
Steak & Ale of Pennsylvania, Inc., 2005 WL 525400, at *10 (E.D.
Pa. Mar. 7, 2005), the court held that there was at least a
question of fact over whether a landlord retained control of a
parking lot where there was testimony that the landlord had
arranged for repairs of the parking lot in the past.
USA does not argue that if its employees did maintain
the South Walkway and clear it of snow that it would not have
retained control over it.
Rather, USA argues that Morrotto’s
testimony, on its own, cannot create an issue of disputed fact
because it is self-serving and Morrotto does not work on the
premises at issue.
The fact that testimony is self-serving,
however, does not mean it cannot create an issue of fact.
Waskovich v. Morgano, 2 F.3d 1292, 1295-96 (3d Cir. 1993).
Additionally, Morrotto testified that he personally witnessed
NPS employees clearing snow from the South Walkway.
If a jury
believes Morrotto’s testimony, it could find that USA retained
control of the South Walkway despite the provision in the Lease
delegating that control to PPA.
USA’s motion for summary
judgment should therefore be denied.
PPA’s Motion for Summary Judgment
PPA’s motion for summary judgment is granted because
PPA is immune from liability as a local agency.
certain exceptions, “no local agency shall be liable for any
damages on account of any injury to a person or property caused
by any act of the local agency or an employee thereof or any
42 Pa. Cons. Stat. Ann. § 8541.
There is no
dispute that PPA is a local agency, and that such immunity
There are several exceptions to this general rule of
The exceptions relevant to this case are:
(b) Acts which may impose liability. -- The
following acts by a local agency or any of
its employees may result in the imposition
of liability on a local agency . . .
(3) Real property. -- The care, custody
or control of real property in the
possession of the local agency, except
that the local agency shall not be
liable for damages on account of any
injury sustained by a person
intentionally trespassing on real
property in the possession of the local
agency. As used in this paragraph,
“real property” shall not include . . .
(iv) sidewalks . . .
(7) Sidewalks. -- A dangerous condition
of sidewalks within the rights-of-way
of streets owned by the local agency,
except that the claimant to recover
must establish that the dangerous
condition created a reasonably
foreseeable risk of the kind of injury
which was incurred and that the local
agency had actual notice or could
reasonably be charged with notice under
the circumstances of the dangerous
condition at a sufficient time prior to
the event to have taken measures to
protect against the dangerous
condition. When a local agency is
liable for damages under this paragraph
by reason of its power and authority to
require installation and repair of
sidewalks under the care, custody and
control of other persons, the local
agency shall be secondarily liable only
and such other persons shall be
42 Pa. Cons. Stat. Ann. § 8542.
PPA argues that the sidewalk exception does not apply,
because although the South Walkway is a sidewalk, it is not
“within the rights-of-way” of a street owned by PPA – PPA does
not own any streets.
PPA also argues that the real property
exception does not apply because the South Walkway is a sidewalk
and therefore by definition not real property.
DeLeo agrees that the sidewalk exception does not
apply, but for a different reason – she claims that the South
Walkway is not a sidewalk.
She argues that a sidewalk must
border a street and that Sansom Street is not a street.
Additionally, DeLeo argues that the South Walkway is more
appropriately considered a “plaza” or “walkway”.
South Walkway is not a sidewalk, according to DeLeo, the real
property exception should apply.
Pennsylvania courts deciding whether a walkway is a
sidewalk have focused on whether the sidewalk is “within the
rights-of-way of streets owned by the local agency.”
Cons. Stat. Ann. § 8542(b)(7).
For example, in Snyder v. North
Allegheny School Dist., 722 A.2d 239, 243 (Pa. Commw. Ct. 1998),
the court held that the sidewalk exception did not apply when a
plaintiff fell on a concrete landing adjacent to a driveway.
order for the sidewalk exception to apply, the concrete landing
must have been a “dedicated portion of a public right-of-way
used for pedestrian traffic.”
The driveway was owned by a
school district and used by third parties with the permission of
the school district; as such, it was not a public right-of-way.
Because the landing was not adjacent to a public right-of-
way, the sidewalk exception did not apply.
In this case, it is undisputed that the South Walkway
is adjacent to a street:
DeLeo’s own exhibit
refers to this location as Sansom Street, and she admits that it
is used for vehicular traffic.
Pl.’s Opp. to PPA’s Mot. 4, Ex.
Additionally, Steven Sims testified that the southern border
of the property at issue was an active street:
Sims Dep. 36:7-23.
DeLeo argues that because Sansom Street is only
incidentally used for vehicular traffic, is constructed with
cobblestones instead of pavement, and lacks traffic control
devices, a reasonable juror could conclude that Sansom Street is
not a street.
DeLeo does not cite to any evidence to support
her claim that Sansom Street is only “incidentally used for
vehicular traffic;” indeed, the only evidence she uses to
support this contention describes Sansom Street as “an active
Sims Dep. 36:7-23.
DeLeo has not produced enough evidence to convince a
reasonable finder of fact that Sansom Street is not in fact a
This fact is therefore not in dispute.
The South Walkway is a “dedicated portion of a public
right-of-way used for pedestrian traffic.”
Snyder, 722 A.2d at
It is separated from Sansom Street by wooden posts,
indicating that it is reserved solely for foot traffic.
Opp. to PPA’s Mot. Ex. 2.
DeLeo also argues that the sidewalk exception should
not apply because the South Walkway is different in nature and
character from sidewalks.
She argues that because the South
Walkway has trees, outdoor seating for a Chinese restaurant,
places to sit, and is made of brick pavers in addition to
concrete that the South Walkway is more akin to a plaza than a
No reasonable finder of fact would find that the South
Walkway is a plaza rather than a sidewalk based on this
Numerous sidewalks in Philadelphia are constructed
with brick rather than concrete and outdoor restaurant seating
is a common sight.
There is therefore no dispute that the South
Walkway is a sidewalk.
PPA does not own Sansom Street, and thus cannot be
sued under the sidewalk exception.
PPA also cannot be sued
under the real property exception because the South Walkway is a
sidewalk, which is by definition not real property.
motion for summary judgment is therefore granted.
An appropriate order shall issue.
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