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March 05, 2013

Applicability of Obvious Condition Defense Not So Obvious

In November 2012, the Superior Court of Pennsylvania issued a decision in Longwell v. Giordano, 57 A.3d 163 (Pa. Super. 2012), which received some notoriety for reaffirming the fact that assumption of the risk is still a viable defense in the Commonwealth. However, this opinion also discussed the applicability of the somewhat related defense of obvious condition in the context of a landlord and tenant situation as distinguished from a business invitee scenario. It is this distinction that is, perhaps, the more noteworthy issue.

In Longwell, the plaintiff, a tenant of the defendant, landlord, was walking outside of his apartment at night toward a paved driveway when he tripped and fell over a seven- or eight-inch deviation between the asphalt and the grass. The plaintiff knew the deviation existed, where it was located, that it could be hazardous, and that it was “pitch black” when he proceeded to encounter it. Despite the foregoing, he still tripped and fell. The trial court granted summary judgment in favor of the landlord finding that the tenant, the plaintiff, assumed the risk of injury and, thus, the landlord owed no duty to the tenant.

The Superior Court did not agree. First, citing the Pennsylvania Supreme Court’s seminal decision of Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983), the court noted that assumption of the risk is a function of the duty analysis:

By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept the risk and to undertake to look out for himself. It is precisely because the invitee assumes the risk of injury from obvious and avoidable dangers that the possessor owes the invitee no duty to take measures to alleviate those dangers. Thus, to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers.

Importantly, this “no duty” concept addressed in Carrender was in the context of a slip and fall suffered by a business invitee. In Pennsylvania, the duty of a possessor of land to business invitees is set forth in the Restatement (Second) of Torts § 343A, which provides in part that a “possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”

In short, where the injured party is a business invitee, the possessor owes no duty to protect the plaintiff from a danger that was known to her or which was obvious.

The Superior Court in Longwell, however, reversed the trial court’s grant of summary judgment because the relationship between the plaintiff and defendant was that of a landlord and tenant. In this context, the liability of lessors to his tenants is dictated by the Restatement (Second) of Torts § 360, which states:

A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use … is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee … for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.

Relying on this section, the Superior Court determined that a landlord does, in fact, owe a duty to his tenant despite the tenant’s knowledge of the condition. Section 360 of the Restatement applies “even though the person injured … has knowledge of the existence of the dangerous condition. His knowledge may put him in contributory fault[,] … [b]ut unless the danger is so apparent and so great that it is unreasonable for him to encounter it in view of the purpose of his use, or unless knowing the danger he fails to exercise that caution which a reasonable man would exercise under the same circumstances, the lessor remains liable to him notwithstanding his knowledge of the existence of the condition.”

What It Means to You

When analyzing a premise liability matter, simply because the allegedly dangerous condition is obvious does not automatically mean that the possessor owes no duty to the plaintiff. The relationship between the parties will dictate the duty owed. In the context of a business invitee, if a condition is obvious and/or the plaintiff knew of its existence, the “no duty” rule applies. However, in a suit by a tenant or his guest against a landlord, there is an even higher standard of care. The landlord must exercise reasonable care to discover the condition and make it safe, regardless of its obviousness or the tenant’s knowledge of it.