Pa. Superior Court panel affirms Phila. judge's grant of summary judgment in Dave & Busters slip-and-fall case

By Jon Campisi | Mar 26, 2014

A three-judge state appellate court panel has affirmed a Philadelphia

judge’s grant of summary judgment to Dave & Busters Inc. in a personal injury case brought by a man who says he hurt himself while bowling at the city business.

In a March 21 non-precedential opinion written by Superior Court Judge William H. Platt, the appeals panel determined that a Philadelphia trial judge was correct this past June to weigh in favor of the defense in a case brought by Lynell Pettigrew, who sued in late March 2012 over an incident that occurred two years prior at the Dave & Busters location at 325 N. Columbus Boulevard in Philadelphia.

Pettigrew claimed he sustained an injury after slipping and falling on the floor of the facility while bowling, the record shows.

A board of arbitrators initially found in favor of Dave & Busters, and a Philadelphia judge ultimately agreed with the arbitrators.

Pettigrew subsequently appealed the judge’s decision to Superior Court, arguing that the trial court erred in granting the defendant’s motion for summary judgment because genuine issues of fact existed over both the ownership of the premises and whether the defendant possessed constructive or actual notice of the alleged defect or hazardous condition at the facility.

The Superior Court judges wrote that the trial judge properly found that the record did not contain sufficient evidence to show that the defendant owed a duty of care to the plaintiff because Pettigrew was not injured at the facility named in the complaint but rather at another Dave & Buster’s location.

When responding to the complaint, lawyers for Dave & Busters argued that the incident couldn’t have occurred at the Columbus Boulevard location because that facility has no bowling alley.

The defendants in the case, which also included Dave & Busters of Pennsylvania Inc., also denied that they owned the Dave & Busters located at Franklin Mills Circle in Northeast Philadelphia, which is where the incident may have occurred since that facility does have bowling lanes.

The defendants stated that that facility may be owned by Tango of Franklin Inc., the record shows.

Pettigrew, however, never sought to amend his complaint to reflect the aforementioned issues, the Superior Court noted.

In his response to the defendants’ summary judgment motion, however, Pettigrew “tacitly conceded” that the incident didn’t not occur at the Columbus Boulevard location, and he stressed that the Franklin Mills location was not properly put on notice of his injuries.

The appeals judges wrote that the defendants did not owe a duty of care to Pettigrew because, as the plaintiff conceded in his response to the defendants’ summary judgment motion and in his brief to the Superior Court, he was not injured at the Columbus Boulevard location owned by the defendants.

“On appeal, as he did in his response to summary judgment, [Pettigrew] attempts to skirt this problem by alleging that [the defendants] also owned the Franklin Mills facility,” the Superior Court ruling states. “We agree with the trial court that this contention did not raise a genuine issue of material fact at summary judgment because [Pettigrew] never pleaded in his complaint nor sought to amend his complaint to assert that the incident occurred at the Franklin Mills facility.

“Here, by pleading in the complaint that [Pettigrew] was injured at the Columbus [Boulevard] facility and by persisting in that averment until the response to summary judgment, [Pettigrew] failed to give [the defendants] fair notice of the material facts that support his claims.”

The panel stated that even if it concluded that the defendants had fair notice that Pettigrew was claiming he was injured at the Franklin Mills facility, the grant of summary judgment would still be proper because Pettigrew failed to demonstrate a genuine issue of material fact with respect to the ownership of that facility.

“It is long settled that, under Pennsylvania law, it is the ‘possessor of land’ that is subject to liability for harm caused to invitees by dangerous conditions on the land,” the panel wrote. “Thus, in order to defeat [the defendants’] motion for summary judgment [Pettigrew] could not rest on his pleadings, but needed to show record evidence creating a genuine issue of material fact as to [defendants] possession of the Franklin Mills facility.”

The other participating jurists were Superior Court President Judge Susan Peikes Gantman and Judge Judith Ference Olson.

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