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Home My WebLink About94-4072 civilKATHLEEN and MICHAEL ZARB, WIFE AND HUSBAND : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : : PIERCING PAGODA, INC., : NO. 94-4072 CIVIL TERM T/D/B/A AS PIERCING PAGODA; : CAPITAL CITY MALL MERCHANTS : ASSOCIATION; AND CROWN : AMERICAN CORPORATION : IN RE: DEFENDANT CROWN AMERICAN'S MOTIONS FOR SUMMARY JUDGMENT AND PARTIAL SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER, J., GUIDO, J. AND NOW, this ORDER day of JULY, 1998, Defendant Crown American's Motion for Summary Judgment in connection with Plaintiffs' claim and its Motion for Partial Summary Judgment against Defendant Piercing Pagoda are DENIED. Richard B. Bateman, Jr., Esquire For the Plaintiffs By the Edward E. Guido, J. Keith E. Johnston, Esquire For Defendant Piercing Pagoda Jeffery D. Wright, Esquire For Defendant Crown American :sld KATHLEEN and MICHAEL : IN THE COURT OF COMMON PLEAS OF ZARB, WIFE AND HUSBAND : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : PIERCING PAGODA, INC., : NO. 94-4072 CIVIL TERM T/D/B/A AS PIERCING PAGODA; : CAPITAL CITY MALL MERCHANTS : ASSOCIATION; AND CROWN : AMERICAN CORPORATION : IN RE: DEFENDANT CROWN AMERICAN'S MOTIONS FOR SUMMARY JUDGMENT AND PARTIAL SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER, J., GUIDO, J. OPINION AND ORDER OF COURT On September 23, 1992, Plaintiff Kathleen Zarb tripped and fell over a corner of a kiosk operated by' Defendant Piercing Pagoda, Inc. (hereinafter Piercing Pagoda) in a mall owned by Defendant Crown American Corporation. (hereinafter Crown American) Defendant Crown American has filed a Motion for Summary Judgment in connection with Plaintiffs' claim, alleging that it owed no duty to them. It has also filed a Motion for Partial Summary Judgment requesting that we order Defendant Piercing Pagoda to pay all attorney fees and expenses incurred in defending this action pursuant to a provision of the lease to which both Defendants are parties. For the reasons hereinafter set forth, both motions are denied. DISCUSSION Defendant Crown American has filed the instant Motions for Summary Judgment under Pa. Rule of Civil Procedure 1035.2 which provides as follows: NO. 94-4072 CIVIL TERM After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. In determining whether to grant a Motion for Summary Judgment, the trial Court must examine the record in the light most favorable to the non-moving party. City of York v. Schaefer Temporary Serv., Inc., 667 A.2d 495 (Pa. Commw. Ct. 1995). Ertel. v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996). Summary judgment may only be granted in cases that are clear and free from doubt. Hoffman v. Brandywine Hosp.., 443 Pa. Super. 245, 661 A.2d 397 (1995). MOTION FOR SUMMARY JUDGMENT IN CONNECTION WITH PLAINTIFFS' CLAIM Defendant Crown American relies on the case of Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983) in support of its Motion for Summary Judgment in connection with Plaintiffs' claim. It argues that the kiosk over which Plaintiff tripped was such an obvious danger that it did not owe any duty to protect her against it. It points to the following language of the Carrender Court in support of its position: NO. 94-4072 CIVIL TERM (w)ith respect to conditions on the land which are known to or discoverable by the possessor, the possessor is subject to liability only if he: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such an invitee, and b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. 469 A.2d at 123.~ Crown American's counsel succinctly states his clients' position on page 5 of his brief: In order to defeat this Motion, Plaintiffs must come forward with proof that a duty existed which, in other words, means that they must demonstrate that the 'defective condition' would not have been obvious to a reasonable person. We agree that the issue is as Crown American has framed it. Reviewing the record in the light most favorable to the Plaintiff, as we must for purposes of this motion, we feel that Plaintiff has come forward with such proof. In her deposition testimony, Plaintiff testified that she was walking around the kiosk, looking straight ahead, when she turned the corner and fell over a decorative box built around one of the corner support pillars. The box over which she fell protruded into the aisle and measured twenty (20) inches by twenty (20) inches by twelve (12) inches high. The report of Plaintiffs' expert forensic engineer, citing literature in the field, states that floor displays which are not at least three ~The Carrender Court goes on to state that "the question of whether a danger was known or obvious is usually a question of fact for the jury." 469 A.2d at 123. NO. 94-4072 CIVIL TERM feet high are not visible without becoming a tripping hazard. This evidence, if believed, is sufficient to allow a jury to conclude that the defective condition would not be obvious to a reasonable person. Therefore, the Motion for Summary Judgment cannot be granted. MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANT PIERCING PAGODA Paragraph 10.01 (a) of the lease under which Defendant Piercing Pagoda occupied the kiosk on Defendant Crown /~terican's property provides, in relevant part, that: (a) Tenant will defend and, except to the extent caused by the negligence of Landlord, its agents, servants, and employees, will indemnify Landlord and Agent and save them harmless from and against any and all claims, actions, damages, liability and expense (including, but not limited to, attorney's fees and disbursements) in connection with the loss of life [or] personal injury ... arising from, related to, or in connection with the occupancy or use by Tenant of the demised premises or any part of Landlord's property .... Based upon the above language, Defendant Crown American argues that, even if its negligence caused the injury to Plaintiff, Defendant Piercing Pagoda has the duty to defend it in this action. At first glance, it would appear that the clear language of Paragraph 10.01 (a) would place an absolute duty upon Defendant Piercing Pagoda to defend Crown American in this action. However, section 10.01(c) of the lease provides in relevant part that: Landlord will defend and, except to the extent caused by the negligence or intentional misconduct of NO. 94-4072 CIVIL TERM Tenant... will indemnify Tenant and save it harmless from and against any and all claims, actions, damages, liability and expense (including, but not limited to, attorney's fees and disbursements) in connection with the loss of life [or] personal injury ... arising from the shopping center except the demised premises or occasioned to the extent wholly or in part by act or omission of Landlord .... When these two sections are read together, an ambiguity arises that can be cleared up only when it is determined who had responsibility for the decorative box over which Plaintiff tripped and whether it is part of the mall itself, the common area of the shopping center or part of the leased premises. These are genuine issues of fact which preclude the grant of summary judgment. For the reasons set forth above, Defendant Crown American's Motion for Summary Judgment and Motion for Partial Summary Judgment must be denied. ORDER AND NOW, this 31ST day of JULY, 1998, Defendant Crown American's Motion for summary Judgment in connection with Plaintiffs' claim and its Motion for Partial Summary Judgment against Defendant Piercing Pagoda are DENIED. Richard B. Bateman, Jr., Esq. For the Plaintiffs By the Court, Keith E. Johnston, Esquire For Defendant Piercing Pagoda /s/ Edward E. Guido Edward E. Guido, J. Jeffery D. Wright, Esquire For Defendant Crown American