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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALBERT E. EISBACHER AND LUCILLE IN THE SUPERIOR COURT OF
EISBACHER, HIS WIFE PENNSYLVANIA
Appellants
v.
MAYTAG CORPORATION, MAYTAG SALES
INC., MAYTAG NORTHEAST, REGIONAL
DISTRIBUTION CENTER, F.R.
COVINGTON PROPERTY HOLDING L.P.,
FIRST INDUSTRIAL DEVELOPMENT
INVESTORS, LLC, FIRST INDUSTRIAL
DEVELOPMENT SERVICES, FIRST
INDUSTRIAL REALTY, COVINGTON
INDUSTRIAL PARK OWNER’S
ASSOCIATION, AKA COVINGTON
INDUSTRIAL PARK, AND CAMMEBY’S
MANAGEMENT COMPANY LLC.
Appellee No. 1163 MDA 2015
Appeal from the Order Entered May 28, 2015
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 08-CV-1534
BEFORE: BOWES, OTT AND FITZGERALD,* JJ.
CONCURRING MEMORANDUM BY BOWES, J.: FILED MARCH 09, 2017
I concur in the learned majority’s decision to vacate the trial court’s
entry of summary judgment and remand for further proceedings. It is my
belief that the record is more than sufficient to conclusively establish that
* Former Justice assigned to the Superior Court.
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Maytag was the possessor of the premises and owed a duty to Appellant, its
invitee.1
I write separately because I do not share my colleagues’ belief that the
lease fails to resolve the issue of possession. The lease between Goldsboro
and Maytag establishes that the trailer drop lot was not a common area
under Goldsboro’s possession and control. The diagrams appended thereto
clearly indicate that the trailer drop lot is part of Maytag’s sixty-acre leased
premises. In order for a party to be a "possessor" of land, it must fit one of
the following descriptions: it must be in occupation of the land with the
intent to control it, it must have been in occupation of the land with intent to
control it if no other party has done so subsequently, or it is entitled to
immediate occupation if neither of the other alternatives apply.
Restatement (Second) of Torts § 328E (1965); Rudy v. A-Best Prods. Co.,
870 A.2d 330, 333 (Pa.Super. 2005). The only party that meets that test is
Maytag. It occupied the trailer drop lot with intent to control it.
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1
Maytag has not challenged Appellant’s contention that he was a business
visitor of Maytag, i.e., one “invited to enter or remain on land for a purpose
directly or indirectly connected with business dealings with the possessor of
land.” Gutteridge v. A.P. Green Servs., 804 A.2d 643, 655-656
(Pa.Super. 2002). A possessor of land owes a business invitee the highest
duty owed to any entrant upon land, and must protect an invitee not only
against known dangers, but also against those that might be discovered with
reasonable care. Id.
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All of the evidence confirms that Maytag was the possessor of the
trailer drop lot.2 Maytag leased the property for use as a distribution center
and warehouse for appliances. Maytag’s leased premises were entirely
fenced in, and there was one means of ingress and egress onto Maytag’s
property. That access road was controlled by a guardhouse staffed by
Maytag’s contractor.
Truck drivers delivering empty trailers and retrieving loaded trailers for
delivery stopped at the guardhouse before entering Maytag’s premises.
They then proceeded to the trailer drop lot, a lot allegedly constructed by
Maytag after it leased the property. Maytag stored trailers on the lot until its
yard jockey or spotter moved them to the warehouse doors for loading. The
lot consisted of paved access roads between rows of trailers sitting on
unpaved dirt or hardpan surfaces. Appellant offered considerable evidence
that, during the winter, snow and ice accumulated in the areas beneath and
adjacent to the trailers and mixed with the hard-packed dirt. The surface
was rough and uneven due to ruts created by tire tracks, the constant
movement of tractors and trailers, and repeated freeze and thaw.
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2
While there is authority for the proposition that whether a party is a
possessor of land is a question for the factfinder, in each instance there was
a genuine factual dispute as to who occupied and controlled the property or
who had the right to control the property. see Leichter v. Eastern Realty
Company, 516 A.2d 1247, 1249 (Pa.Super. 1986); Blackman v. Federal
Realty Inv. Trust, 664 A.2d 139, 142 (Pa.Super. 1995). Herein, Maytag
clearly occupied and controlled the property.
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On the winter day at issue, Appellant, a tractor–trailer driver for a
third-party contractor, described how he entered the drop lot towing an
empty trailer. He looked for a “hole,” an empty space between other
trailers, and backed in the trailer. In order to disconnect the trailer from the
tractor, it was necessary for him to leave the cab and walk on the
accumulated ice and snow on the unpaved ground between his trailer and
the adjacent trailer to physically remove the pins connecting the tractor and
trailer. He was returning to his cab when he slipped on the uneven ice and
snow, struck his head on the trailer, and was rendered unconscious.
The majority concludes that there are disputed issues of fact as to
possession of the lot because the lease between Goldsboro and Maytag
provided that Goldsboro would procure snow removal services for all
“parking areas, loading areas, and roadways on the [Maytag’s] premises.” I
disagree. The issue is not who was responsible for removing snow; the
issue is who possessed, i.e., occupied and controlled, the property.
Goldsboro’s commitment to hire a snow removal contractor, for which
Maytag paid additional rent, did not affect or supplant Maytag’s occupation
of and control over the leased property. Similarly, Dunbar’s occasional entry
onto Maytag’s premises to remove snow did not amount to occupation of the
land with intent to control it. In short, I believe the majority’s focus on
responsibility for snow removal, though pertinent to the ultimate questions
of negligence and responsibility for Appellant’s injury, is irrelevant to our
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present determination as to whether Maytag possessed the trailer drop lot
and thus owed a duty to Appellant.
As the possessor of land, Maytag is subject to liability to Appellant, its
business invitee, for physical harm caused by a dangerous condition on its
premises, if it knew or reasonably could have known of the condition and
fails to exercise reasonable care to protect him. Restatement (Second) of
Torts, § 343. The highest duty of care is owed to business invitees such as
Appellant who enter the property in furtherance of the possessor’s business.
That includes a duty to inspect the premises and remedy dangerous
conditions that could be discovered with reasonable care.
I submit it is precisely because the possessor of land owes a duty to
keep its premises safe for invitees and licensees that Maytag paid additional
rent to Goldsboro for snow removal. In turn, Goldsboro contracted with
Dunbar’s for the performance of the service. Goldsboro or Dunbar’s may yet
be liable for indemnity to Maytag for the breach of those contracts.
However, the contract provisions regarding snow removal responsibility do
not implicate the larger question of whether Maytag possessed the premises.
They certainly do not operate to relieve Maytag of its common law duty as a
possessor of land to protect its business invitees from dangerous conditions
on the premises. Maytag’s contention that it did not possess the leased
premises, as defined in the Restatement (Second) of Torts Section 328E,
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merely because another entity occasionally removed snow from the
premises, is legally untenable.
Certainly, Appellant could have instituted this lawsuit against all three
entities: Maytag, Goldsboro, and Dunbar’s. Maytag could have joined
Goldsboro and Dunbar’s as parties in this action to determine their liability.
In either case, liability against Goldsboro and Dunbar’s would have been
predicated upon their negligent performance of their contractual obligations
to remove snow, a duty they arguably owed to both Maytag and Appellant.
See Evans, supra; Restatement (Second) of Torts § 324A;3 see also
Farabaugh v. Pennsylvania Turnpike Commission, 911 A.2d 1264,
1283 (Pa. 2006) (quoting Evans, supra and discussing purview of § 324A).
In that event, Appellant could have argued that, since the snow removal
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3
Section 324A of the Restatement (Second) of Torts, entitled "Liability to
Third Person for Negligent Performance of Undertaking," provides:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of a third person or his things, is subject to
liability to the third person for physical harm resulting from his
failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of
such harm, or
(b) he has undertaken to perform a duty owed by the other to
the third person, or
(c) the harm is suffered because of reliance of the other or the
third person upon the undertaking.
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contract was intended to protect and benefit third persons at risk from injury
due to accumulated ice and snow on Maytag’s property, both Dunbar’s and
Goldsboro were legally obligated to perform their contractual undertaking in
a manner consistent with the standard of care. See Evans v. Otis Elevator
Co., 168 A.2d 573, 575-576 (Pa. 1961) (quoting Prosser, Torts, (2nd ed.
1955), § 85, pp. 514-519). That, however, is not the scenario before us.
Maytag is the sole defendant and has a duty to Appellant as the
possessor of the premises where he was injured. If Appellant is successful
in proving that Maytag breached its duty of care to provide a reasonably safe
premises for its invitee, Maytag’s recourse is to seek indemnity from
Goldsboro and/or Dunbar’s pursuant to the terms of the contracts.
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