Bradley v. O'Donoghue

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-10-2007
Bradley v. O'Donoghue
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4246
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"Bradley v. O'Donoghue" (2007). 2007 Decisions. Paper 1793.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-4246
LONSHYA BRADLEY; DONNA ROSAS,
plenary guardian of the person and estate of
LONSHYA BRADLEY, a minor and incompetent
v.
MAURICE O'DONOGHUE; COLUMBIA LIGHTING-LCA, INC.;
BURGER KING CORP.; BRISTOL BOROUGH;
BRISTOL TOWNSHIP
Donna Rosas, plenary guardian of the person and estate
of Lonshya Bradley, a minor and incompetent,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 03-CV-05071)
District Judge: Hon. William H. Yohn, Jr.
Submitted Under Third Circuit LAR 34.1(a)
November 8, 2006
Before: SCIRICA, Chief Judge, MCKEE and STAPLETON, Circuit Judges.
(Opinion filed: January 10, 2007)
OPINION
McKEE, Circuit Judge.
1
Donna Rosas, the plenary guardian of the person and estate of Lonshya Bradley,
appeals the District Court’s grant of summary judgment in favor of U.S. Restaurants
based upon that court’s determination that the defendant owed no duty to Bradley. For
the following reasons, we will affirm.1
I.
Because we write primarily for the parties, we need not recite the underlying facts
or procedural history of this case. Rosas makes several arguments on appeal, however,
they all turn on Rosas’ allegation that the defendant owed a duty to Bradley based upon
its obligation to provide safe ingress and egress to its restaurant.
The District Court correctly determined that Pennsylvania law applies to this
diversity action, and the parties do not dispute that decision. Rosas claims that the
District Court erred in relying upon Restatement (Second) of Torts § 349 because that
provision only applies to situations where “a passerby [is] injured by a defect on an area
of state highway over which the defendant has a right of way or easement.” Appellant’s
Br. at 11.2 However, the District Court carefully explained why it predicted that the
1
The District Court had jurisdiction pursuant to 28 U.S.C. 1332(a)(1). We have
jurisdiction pursuant to 28 U.S.C. § 1291.
2
Section 349 provides:
A possessor of land over which there is a public highway or private right of way is
not subject to liability for physical harm caused to travelers upon the highway or
persons lawfully using the way by his failure to exercise reasonable care
(a) to maintain the highway or way in safe condition for their use, or
(b) to warn them of dangerous conditions in the way which, although not created
2
Pennsylvania Supreme Court would follow § 349, and we can add little to the District
Court’s analysis of that issue. The District Court’s conclusion is consistent with the law
of Pennsylvania. For example, in Allen v. Mellinger, 625 A.2d 1326 (Pa. Cmwlth. Ct.
1993), the plaintiff was struck by oncoming traffic while turning into a shopping center
parking lot from a state highway. The court relied upon § 349 to hold that the plaintiff
could not recover from owners of the shopping center because they owned no duty to
indicate a safe place to turn by placing curbing or barricades in the parking lot. In
reaching its decision, the court discussed, MacGrath v. Levin Properties, 606 A.2d 1108,
1109-11 (N.J. Super. Ct. 1992), a case decided under New Jersey law. There, the court
relied upon § 349 in holding that a shopping center owner owed no duty to a plaintiff who
was hit by a car while crossing a state highway abutting the defendant’s property.
Rosas also claims that the location of the defendant’s business and the
location of the driveway were dangerous conditions that led pedestrians into the
intersection, and that she is therefore entitled to recover under Restatement
(Second) of Torts §§ 343 3 and 364 4 . We disagree.
by him, are known to him and which they neither know nor are likely to discover.
Restatement (Second) of Torts § 349 (1965).
3
Restatement § 343 provides that:
A possessor of land is subject to liability for physical harm caused to his invitees
by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and
3
As the District Court explained, this argument is precluded by Gardner ex
rel. Gardner v. Consolidated Rail Corporation, 573 A.2d 1016, 1019 (Pa. 1990).
There, plaintiff relied upon the Restatement (Second) of Torts including §§ 343
and 365 5 in arguing that a city and a railroad were liable for injuries he sustained
should 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
protect themselves against it, and
(c) fails to exercise reasonable care to protect them against danger.
Restatement (Second) of Torts § 343 (1965).
4
Restatement § 364 provides that:
A possessor of land is subject to liability to others outside of the land for physical
harm caused by a structure or other artificial condition on the land, which the
possessor realizes or should realize will involve an unreasonable risk of such
harm, if
(a) the possessor has created the condition, or
(b) the condition is created by a third person with the possessor’s consent or
acquiescence while the land is in his possession, or
(c) the condition is created by a third person without the possessor’s consent or
acquiescence, but reasonable care is not taken to make the condition safe after the
possessor knows or should know of it.
Restatement (Second) of Torts § 364 (1965).
5
Restatement § 365 provides that:
A possessor of land is subject to liability to others outside of the land for physical
harm caused by the disrepair of a structure or other artificial condition thereon if
the exercise of reasonable care by the possessor or by any person to whom he
entrusts the maintenance and repair thereof
(a) would have disclosed the repair and the unreasonable risk involved therein,
and
(b) would have made it reasonably safe by repair or otherwise.
Restatement (Second) of Torts § 365 (1965).
4
while crossing the defendant’s railroad tracks. Id. at 1019. Plaintiff had reached
the tracks after climbing through a hole in a city-owned fence surrounding a
municipal playground. Id. The Pennsylvania Supreme Court held that the city
owed plaintiff no duty of care because the fence was not the proximate cause of
the injury–“the only connection between the injury and the allegedly poorly
maintained fence[] is that [plaintiff] passed through or walked toward holes in the
fences.” Id. at 1021. Here, the District Court correctly ruled that Bradley was
merely passing through the Burger King driveway; she was obviously not injured
by it, and it was not the proximate cause of Bradley’s injuries.
Plaintiff’s claim fares no better under § 365. Rosas’ argument under that
section of the Restatement mirrors Justice Montemuro’s dissent in Majestic by
Majestic v. Commonwealth of Pennsylvania, 641 A.2d 295, 296-99 (Pa. 1994) (per
curiam) (Montemuro, J., dissenting). However, the Commonwealth Court rejected
that argument based on Gardner. Justice Montemuro’s dissent to the contrary
distinguishing Gardner does support Rosas’ argument, but it is not the law of
Pennsylvania.
No matter how Rosas attempts to portray Bradley’s claim, it is clear that any
obligation on the part of the defendant must arise from some duty it owed to
Bradley. Yet, as the District Court explained, it is clear under Allen, the defendant
owed no duty to Bradley. See also, Cruett v. Certain-Teed Corp., 639 A.2d. 478,
5
481 (Pa. Super. 1994); and 36 P.S. § 670-420 (giving the Secretary of
Transportation the authority to “make reasonable rules and regulations governing
the use of all State highways. . ..”).
II.
Thus, for the reasons stated above, we will affirm the District Court’s grant of
summary judgment to Burger King, and against Donna Rosas as plenary guardian for
Lonshya Bradley.
6