Cressman v. Muhlenberg College

42 Pa. D. & C.4th 41, 1999 Pa. Dist. & Cnty. Dec. LEXIS 122
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedApril 30, 1999
Docketno. 96-C-1171
StatusPublished

This text of 42 Pa. D. & C.4th 41 (Cressman v. Muhlenberg College) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cressman v. Muhlenberg College, 42 Pa. D. & C.4th 41, 1999 Pa. Dist. & Cnty. Dec. LEXIS 122 (Pa. Super. Ct. 1999).

Opinion

BLACK, J.,

Plaintiff, Thomas E. Cressman, seeks to recover damages for personal injuries sustained when he fell off an A-type ladder while at work for his employer, Phoebe Florists, on the campus of defendant Muhlenburg College. At the time of his fall, plaintiff was attempting to attach metal brackets to one of the center tent poles of a large tent erected by defendant Zeiser Enterprises d/b/a Van Tents, on the Muhlenberg campus. Van Tents had provided and erected [43]*43the tent for use by Muhlenberg during its commencement exercises to take place a short time later in May of 1994.

Before the court are motions by both defendants for summary judgment on the ground that plaintiff has failed to produce evidence sufficient to make out a prima facie case of negligence against them. Pennsylvania Rule of Civil Procedure 1035.2(2), as revised in 1996, provides:

“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 response to a motion for summary judgment, a plaintiff may not rest upon the allegations in his complaint, but must identify evidence in the record establishing those facts that would warrant submitting the issue of negligence to the jury. See Pa.R.C.P. 1035.3; Borden Inc. v. Advent Ink Co., 701 A.2d 255 (Pa. Super. 1997).

In this case, no expert reports or affidavits have been submitted. Therefore, defendants’ motions must be decided on the basis of the depositions on file and any admissions in the pleadings. Those persons deposed were Bud Zeiser, owner of Van Tents; Richard Begbie, a representative of Muhlenberg; and plaintiff himself.

The depositions establish that Muhlenberg had retained plaintiff’s employer, Phoebe Florists, to decorate the tent with plants. The plants were to be hung from metal brackets that plaintiff was in the process of installing at the time of his injury. A Phoebe employee on the ground would hand the brackets up to plaintiff, who was on an A-type ladder. Plaintiff would then hand the brackets up [44]*44still higher to another Phoebe employee, Pat Famiac, who was on an extension ladder leaning against one of the center tent poles. Ms. Farniac would then attach the brackets to the pole. The center tent poles were constructed in two pieces that were fastened together. For some unexplained reason, on this occasion the pole that Ms. Farniac’s ladder was leaning against “separated” or came apart, causing the pole to collapse and plaintiff to be knocked off the ladder he was on.

Plaintiff has not produced evidence of any specific defect in the tent pole that led to its collapse. Instead plaintiff alleges that an inference of causal negligence is warranted against both Muhlenberg and Van Tents under the doctrine of res ipsa loquitur. The rule of circumstantial evidence known as res ipsa loquitur is explained in the Restatement (Second) of Torts §328D(1) (1965), as follows:

“It may be inferred that harm suffered by plaintiff is caused by negligence of the defendant when
“(a) the event is of the kind which ordinarily does not occur in the absence of negligence; and
“(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
“(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.”

This formulation has been adopted by the Pennsylvania Supreme Court. See Gilbert v. Korvette’s Inc., 457 Pa. 602, 327 A.2d 94 (1974).

Based on the limited evidence produced by plaintiff, and in particular the lack of any expert report, we do not believe that the requirements of the doctrine of res ipsa loquitur have been established. Therefore, we grant defendants’ motions for summary judgment.

[45]*45THE CASE AGAINST MUHLENBERG COLLEGE

Plaintiff acknowledges that Muhlenberg did not erect the tent and that Van Tents was an independent contractor of the college. Plaintiff argues, nevertheless, that Muhlenberg as the landowner owed an affirmative duty to invitees like plaintiff to use reasonable care to ascertain the actual condition of its premises. See Restatement (Second) of Torts §343 (1965).

The difficulty with plaintiff’s argument is that he has produced no evidence that Muhlenberg failed to exercise reasonable care. Muhlenberg is not an insurer of the safety of invitees on its premises. Unless there was a dangerous condition of the premises that Muhlenberg knew or had reason to know of, the college cannot be held responsible. Since plaintiff cannot identify any specific defect that caused the accident, it is impossible for a jury to conclude that Muhlenberg knew or should have known of such a defect. Although Muhlenberg had a duty to inspect the premises, plaintiff has not shown that a reasonable inspection would have disclosed the defect that caused the accident. Therefore, there is not enough evidence for this case to go to a jury against Muhlenberg.

Plaintiff cites D’Ardenne v. Strawbridge & Clothier Inc., 712 A.2d 318 (Pa. Super. 1998), where a plaintiff injured on a department store escalator was held entitled to a res ipsa jury instruction in a suit against the store. However, the doctrine of res ipsa loquitur does not help plaintiff against Muhlenberg. Here, there is no evidence that the tent pole, which had been installed by an independent contractor, Van Tents, would not ordinarily separate or come apart unless the property owner, Muhlen-berg, was negligent. Moreover, plaintiff has not eliminated [46]*46other potentially responsible causes, such as the conduct of Van Tents in erecting the tent or the conduct of plaintiff’s co-worker, Pat Farniac, who was leaning against the pole on the extension ladder when the pole gave way.

Under Pennsylvania law, Muhlenberg is not vicariously liable for negligence on the part of an independent contractor such as Van Tents. See Speer v. Barry, 349 Pa. Super. 365, 503 A.2d 409 (1985). Although Muhlenberg as property owner has a nondelegable duty with respect to the premises, the scope of this duty is only to protect invitees from conditions of the premises that Muhlenberg knew or in the exercise of reasonable care should have known to be unsafe. A property owner is not liable for unknown defects unless a reasonable inspection would have disclosed the defects. See Miller v. Hickey, 368 Pa. 317, 81 A.2d 910 (1951); Kehres v. Stuempfle, 288 Pa. 534, 136 A. 794 (1927); Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 690 A.2d 719 (1997).

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Related

Miller v. Hickey
81 A.2d 910 (Supreme Court of Pennsylvania, 1951)
Gilbert v. Korvette's Inc.
327 A.2d 94 (Supreme Court of Pennsylvania, 1974)
Speer v. Barry
503 A.2d 409 (Supreme Court of Pennsylvania, 1985)
D'Ardenne Ex Rel. D'Ardenne v. Strawbridge & Clothier, Inc.
712 A.2d 318 (Superior Court of Pennsylvania, 1998)
Estate of Swift Ex Rel. Swift v. Northeastern Hospital of Philadelphia
690 A.2d 719 (Superior Court of Pennsylvania, 1997)
Kehres v. Stuempfle
136 A. 794 (Supreme Court of Pennsylvania, 1927)
Borden, Inc. v. Advent Ink Co.
701 A.2d 255 (Superior Court of Pennsylvania, 1997)

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Bluebook (online)
42 Pa. D. & C.4th 41, 1999 Pa. Dist. & Cnty. Dec. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cressman-v-muhlenberg-college-pactcompllehigh-1999.