When Do Property Owners and Tenants Owe a Duty to Protect Their Guests?
Written by: Alan Nochumson
The recent ruling handed down by the Pennsylvania Superior Court in Lomuscio v. Cole, 2022 Pa. Super. Unpub. LEXIS 2867 (Dec. 6, 2022), examines whether landlords and residents of a leased property are liable when a guest of a party held at the leased property is injured.
In 2014, the plaintiff in Lomuscio was physically attacked and severely beaten at a party in East Stroudsburg, Pennsylvania.
Thereafter, the plaintiff in Lomuscio brought an action in the Monroe County Common Pleas Court against the property owners and the individuals who were residing at the property at the time of the incident, some of them of which were tenants on a lease signed with the property owners and some of them who merely resided in the property, the opinion said.
In Lomuscio, the plaintiff asserted that he suffered brain injuries as a result of this physical attack on him and that the property owners breached a duty to him as a landlord out of possession of the property at the time and the residents in the property breached a duty to him as hosts of the partygoers, the opinion said.
During discovery, it was revealed that the lease included a provision that prohibited the tenants from operating any business on the property. This lease provision is relevant because the residents in the property charged a $5 entry fee in exchange for alcohol and entry to their party.
Following discovery, the property owners and the residents in the property both filed summary judgment motions.
The trial court in Lomuscio granted both summary judgment motions.
As for the summary judgment motion filed by the property owners, the trial court in Lomuscio held that they should not be held liable to the plaintiff because they were landlords out of possession, and generally, landlords out of possession are not liable for injuries to nontenants and because the plaintiff failed to show evidence of any agreement or undertaking by the property owners to provide security for the party.
With regards to the summary judgment motion filed by the residents in the property, the trial court in Lomuscio held that the residents who were not a party to the lease agreement could not be held liable based upon the cited lease provision of the lease that prohibited the tenants from operating any business on the property.
The plaintiff in Lomuscio appealed the trial court’s rulings to the Superior Court. ‘ As for the residents of the property, the plaintiff in Lomuscio argued that, because they were in possession of the property at the time of the attack, they owed him a duty to protect against harm from third parties because he was an invitee.
Citing to Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96 (Pa. Super. 2017), the Superior Court in Lomuscio noted that “a possessor of land who holds it open to the public for his business purposes owes a duty to his invitees to take security precautions to prevent harm from other persons if he knows or has reason to know of a likelihood that conduct, or other persons will endanger his invitees.”
Relying upon Castellano v. Local 302 International Association of Firefighters, 70 Pa. D.&C. 4th 415 (C.P. Lehigh Co. 2004), the Superior Court in Lomuscio stated that “a guest at a party to which the general public is invited and for which an admission fee is charged is considered an invitee of the party organizers and the possessor of the premises where the party is held.”
Since the plaintiff in Lomuscio paid an admission fee to attend the party and the party was open to any individual who paid the entry fee, the Superior Court believed that a jury could find that the plaintiff was an invitee.
The Superior Court in Lomuscio then pointed out that discovery revealed statements that showed the residents had reason to know of a likelihood that the party would attract gang members to the property based on previous parties the residents had hosted.
Because a jury could find from the statements of the residents that they knew their parties had been invaded by dangerous people in the past, the Superior Court in Lomuscio reasoned that there was evidence that the residents had a reason to know of a danger to support a duty to protect their partygoers from harm from third parties.
Although the Superior Court in Lomuscio found that the trial court erred in holding that the residents did not owe the plaintiff a duty to protect against or warn him of the danger of criminal acts of third parties, it limited this finding of a duty to only those residents who were in possession of the property at the time of the attack.
In other words, the Superior Court in Lomuscio concluded that those residents not formally leasing the property but staying there and hosting the party, may have owed a duty toward the plaintiff and, therefore, genuine issues of material fact existed for those residents.
However, the Superior Court in Lomuscio agreed to dismiss one of the residents as a party defendant who was not a tenant, and who the evidence failed to show either resided at the property at the time of the party or assisted in the organization of the party should not be held liable because there was insufficient evidence to impose a duty on this nonoccupant to protect person on the premises from harm by third parties.
Ultimately, the Superior Court in Lomuscio reversed the granting of summary judgment motion in favor of these other residents due to these genuine issues of material fact.
As an aside, the Superior Court in Lomuscio rejected the plaintiff’s argument that regardless of whether the residents in the property owed him a duty as occupants of the property, they should be liable to him on the grounds that they served alcohol to persons who were under the age of 21, relying upon Orner v. Mallick, 527 A.2d 521, 523-24 (Pa. 1987) which states that an adult host who knowingly serves alcohol to persons under age 21 is liable for injuries caused by the underage drinker’s intoxication.
The trial court in Lomuscio found, and the Superior Court in Lomuscio agreed, that this claim failed because there was no evidence that the plaintiff’s injuries were caused by any underage consumption of alcohol.
The Superior Court in Lomuscio also addressed whether the property owners should have been held liable to the plaintiff under the circumstances.
In citing to Brown v. End Zone, 259 A.3d 473 (Pa. Super. 2021), the Superior Court in Lomuscio emphasized that, “generally, landlords out of possession do not owe any duty to nontenants and are therefore not liable for injuries suffered by nontenants on the leased premises,” unless “where the injury is caused by a physical defect in the premises;” “where the landlord leases the property for a purpose involving the admission of the public and neglects to inspect for or repair dangerous conditions existing on the property before possession is transferred to the lessee;” and where the injury was caused by activities of the lessee or other person on the premises and the landlord at the time of the lease consented to those activities or knew that they would be carried on; and knew or had reason to know that the activities would unavoidably involve an unreasonable risk or that special precautions necessary to safety would not be taken.”
The Superior Court in Lomuscio found that none of these exceptions applied, in that while there were some physical defects on the property, they had no causal relationship with the plaintiff’s injuries; no evidence supported a duty to plaintiff based upon the purpose for which the property was leased or the property owners’ knowledge of the activities to be carried out on the property when they leased it, as the applicable written lease specifically stated that “operation of any business from the property is not permitted;” and no evidence existed that the property owners had any knowledge or any notice at the time that they leased the property that the residents intended to use the property to host parties open to the public or for which admission was charged or at which underage drinking occurred nor did the property owners know or have reason to know that activities posing unavoidable risks requiring special safety precautions would be occurring at the property.
Nonetheless, the plaintiff in Lomuscio argued that, although none of the exceptions for landlord liability applied, the property owners should be held liable because they were allegedly aware that the residents were charging an entry fee for parties they were hosting and that they were serving alcohol to minors.
The Superior Court in Lomuscio found that the property owners’ knowledge post-lease execution did not rise to a level that is sufficient to make an out-of-possession landlord who leases a property for residential purpose liable for harm to his tenants’ guests caused by violent acts of third parties, especially since no evidence showed that the property owners had any knowledge of violence at parties held at the property prior to the party where the plaintiff was attacked.
Alan Nochumson is the sole shareholder of Nochumson P.C., a legal services firm with a focus on real estate, land use & zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Nochumson is a frequent author and lecturer on issues commonly confronting businesses, individuals and professionals. You can reach him at 215-399-1346 or firstname.lastname@example.org.
Alex Goldberg is an associate attorney at the firm. You can reach him at 215-399-1346 or email@example.com.
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