Appellant, Donald Newell, Administrator of the Estate of his father, Victor Newell, Deceased, appeals from the order of August 5, 2014, granting summary judg
Victor Newell (“Decedent”) attended a concert at Montana West on May 7, 2010. Montana West is located on the west side of State Route 309 (also known as North West End Boulevard), a four-lane public highway maintained by the Commonwealth. Without permission of the landowners, Decedent parked his car on the property of DHL Machine Company and/or DHL Machine International (“DHL”), which is located on the east side of Route 309, across the highway from Montana West. Two bands were performing at Montana West that night. Not wanting to see the second band, Decedent left Montana West at approximately 11 p.m., when the first band’s performance ended. While crossing Route 309 to return to his car, he was struck and killed by an automobile driven by Haleigh Oliemuller. Trial Ct. Op., 9/22/14, at 1-2.
On April 6, 2012, Newell commenced this action by a complaint charging Montana West and DHL with negligence. With respect to Montana West, Newell’s theory was that Montana West provided insufficient parking for those patronizing its facility, thereby making it necessary for Decedent to incur the risk of parking on the other side of Route 309 and of crossing Route 309 to reach his car. On August 5, 2014, the trial court entered summary judgment for Montana West and DHL on the grounds that those defendants did not owe a duty to Decedent when he crossed Route 309 and was fatally injured, and that they therefore could not be held liable for breaching any such duty through negligence.
Newell raises the following issue for our review:
Did the Trial Court err in finding as a matter of law defendant Montana West did not owe Victor Newell a duty of care when Montana West knew its property could not safely accommodate parking for large crowds, knew during major events its customers would routinely park across a dangerous abutting highway because there were no safe alternatives to park once Montana West’s parking lot was full, historically (but not the night in question) took safety precautions for its customers in recognition thereof, and knew a Montana West customer had already been fatally injured crossing the same area of the highway on which Victor Newell was killed?
Newell’s Brief at 3-4.
Our standard of review of an appeal from an order granting summary judg
As noted, Newell sued Montana West for negligence.
In order to hold a defendant liable for negligence, the plaintiff must prove the following four elements: (1) a legally recognized duty that the defendant conform to a standard of care; (2) the defendant breached that duty; (3) causation between the conduct and the resulting injury; and (4) actual damage to the plaintiff.
Nationwide Mut. Fire Ins. Co. v. Modern Gas, 143 A.3d 412, 415 (Pa. Super. 2016); accord Green v. Pa. Hosp.,
Newell contends that the trial court erred as a matter of law because Montana West had a duty to protect him from foreseeable harm such as a fatal accident on Route 309. Newell’s Brief at 3-4, 7-9. He contends that Montana West had insufficient parking on its premises to accommodate its business invitees and that invitees therefore often parked on the other side of Route 309 to attend Montana West events. Newell claims that Montana West was aware of the dangers posed to its business invitees who parked on the other side of the highway, had taken actions in the past to dissuade invitees from doing so, and had sometimes patrolled the other side of the highway to prevent its invitees from parking there. He argues that Montana West was negligent in failing to take similar actions on the evening of Decedent's death.
In scholarly opinions by the Honorable Marlene Lachman on April 17 and August 5, 2014,
Newell’s brief blends and combines several theories of duty in an effort to overturn the trial court’s decision: (1) duty of a landowner to pedestrians on adjoining roadways; (2) duty of a landowner to provide adequate parking on its premises; and (3) voluntary assumption of duty by a landowner through prior safety measures. We address each of these separately.
After leaving the concert, Decedent was killed while crossing a highway adjacent to Montana West’s property. The trial court therefore surveyed the law regarding the duty of a landowner to protect its invitees from dangers on adjoining public highways,
The duty of a Pennsylvania landowner to protect business invitees from dangers on adjoining roadways is á question of first impression for this Court. However, as the trial court observed, the Commonwealth Court, some lower courts in Pennsylvania, and several courts in other jurisdictions have broadly agreed that no such duty exists based on facts similar to those here. Although we are not bound by those decisions, we find them persuasive,
The trial court based its decision primarily on the Commonwealth Court’s decision in Allen v. Mellinger,
In Allen, the plaintiff, Elizabeth Allen, attempted to make a left-hand turn from State Route 501 into the parking lot of a store owned by the defendants, the Carpenters, when her vehicle collided with a truck coming from the opposite direction. The crest of a hill limited the drivers’ visibility at the point on Route 501 where a turn would be made into the store’s parking lot, and several accidents had occurred at that location. Relying on Section 343 of the Restatement (Second) of Torts (1965), which makes a possessor of land “subject to liability for physical harm caused to his invitees by a condition on the land” if he knows or should have known of the danger and fails to take protective action, the plaintiff claimed that the store owners had a duty to post signs or take other measures to warn those turning into its parking lot of the dangerous condition. The Commonwealth Court disagreed, explaining:
[Ujnder Pennsylvania law, state highways are the property of the Commonwealth. The Commonwealth has the exclusive duty for the maintenance and repair of state highways. The duty is not owed by abutting landowners. State Route 501, the road abutting the Carpenters’ parking lot, has been designated a state highway by statute. Thus, even though the Carpenters’ boundary line extends to the center of State Route 501, the ownership, control and possession of the highway traversing their*824 property, along with the duty of care to maintain the highway, belongs to the Commonwealth.
Allen, 625 A.2d at 1328-29 (citations omitted). The court held that Section 343 was inapposite because the accident occurred on the public highway, and not on property in the possession of the defendants. Id.
In this connection, the court reviewed Section 349 of the Second Restatement,
Dangerous Conditions in Public Highway or Private Right of Way
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 by him, are known to him and which they neither know nor are likely to discover.
Allen must prove a duty of care on the part of the Carpenters, and a breach thereof causing Allen’s injuries. Allen has failed to do this. The Carpenters are not liable to Allen because, by her own admission, she collided with the truck in the center of the northbound lane of the highway, located off the Carpenters’ property. As Section 349 of the Restatement makes clear, the Carpenters, as abutting landowners, owed no duty to Allen, which could be breached, to maintain a public highway in a safe condition.
Id. at 1329. The Commonwealth Court’s holding in Allen is consistent with that of other courts throughout the country that have considered landowners’ liability for risks on adjoining roadways.
Allen dealt with injuries to a motorist on an adjoining highway. But, of particular relevance here, the same result has been held to apply when the injury is to a pedestrian seeking to cross the adjoining highway from or to the landowner’s property, including pedestrians who were the landowner’s business invitees. See, e.g., Davis v. Westwood Group,
The judicial imposition of a tort duty of care and maintenance of a portion of the public domain upon a property owner for no better reason than that his property is proximate to it would seem to be an arbitrary determination. The unre-strictable right of passage on the highway belongs to the public. In principle, therefore, a remedy for injury to a pedestrian caused by improper maintenance thereof should be subsumed under the heading of public liability.
MacGrath,
Just as “no one could reasonably suggest that the owner of commercial property owes a duty to pedestrians crossing the street to keep an abutting paved road in repair,” it cannot be fairly suggested that the owner owes a duty to protect the pedestrian from the obvious hazards of the abutting highway. Liability rests with the State, if there exists a dangerous condition in the public way which caused the accident, or with the operator of the vehicle whose negligence caused the injuries to the crossing pedestrian.
The Commonwealth Court has followed this line of decisions. See Walinsky v. St, Nicholas Ukrainian Cath. Church,
We find this substantial body of authority persuasive. A pedestrian who walks on a public highway places himself at risk of injury from vehicles traveling on the highway, Any duty of care owed to that pedestrian must belong to those who maintain the road and those motorists who are licensed to drive safely on it. The duty does not extend to landowners who have premises adjacent to the roadway.
We are guided to this conclusion by a pair of decisions by the Supreme Court of Pennsylvania that addressed a closely analogous issue: liability for injuries occurring on railways adjoining a landowner’s property. In Scarborough ex rel. Scarborough v. Lewis,
*827 the law imposes no duty upon a possessor of adjacent land to erect fencing or provide warnings so as to deter persons from entering a third party’s property on which there exists a dangerous condition not created or maintained by the landowner and over which the landowner has no control.
The Court reiterated this holding in Gardner ex rel. Gardner v. Consol. Bail Corp.,
Neither Scarborough nor Gardner cited or relied on Section 349 of the Second Restatement, dealing with injuries to invitees on adjoining highways. Nevertheless, in light of these decisions declining to impose a duty on a landowner to protect minors from injury on an adjoining railway, we are confident that that the Pennsylvania Supreme Court also would impose no duty on a landowner to protect persons injured on an adjoining highway. Our decision is in accord with this view and the well-settled precedents in other jurisdictions.
Duty of Landowner To Provide Adequate Parking
Newell contends that even if a landowner generally owes no legal duty to pedestrians injured on adjoining roadways, Montana West is liable because of a lack of safe conditions on Montana West’s own property. According to Newell, Montana West lacked sufficient parking facilities, a deficiency that made its premises unsafe for Decedent and other business invitees by forcing them to find parking in such unsafe areas as the opposite side of Route 309. If Montana West had provided sufficient safe parking on its own premises, Newell argues, Decedent would not have had to incur the risk of parking in DHL’s lot on the east side of Route 309 and walking across the highway to get to the concert.
The record shows that local zoning authorities authorized Montana West to operate with 231 parking spaces on its paved
Newell argues that the insufficient parking at Montana West distinguishes this case from decisions like Allen and brings this case under Section 343 of the Second Restatement, because the lack of sufficient parking was an unsafe condition on Montana West’s own property. Like the plaintiffs in Gardner, Newell bolsters this argument by also citing other Restatement provisions, including Sections 323 (negligently providing services for protection of another), 343A (anticipated harm from known or obvious dangers), and 364 (creation or maintenance of dangerous artificial conditions). See Newell’s Brief at 10-12. Neither party cites us to any Pennsylvania appellate authority that addresses the purported duty to provide adequate parking that is advocated by Newell.
Newell’s inadequate parking theory is in tension with the Supreme Court’s decisions in Scarborough and Gardner. Those cases rejected efforts to impose liability for failing to do something on the landowner’s premises (repair a fence) that would have deterred the injured plaintiffs from reaching the adjoining railway where they were injured. Newell’s theory would impose liability on Montana West for failing to do something on its premises (have more parking spaces) that would have made it unnecessary for Decedent to cross the adjoining highway where he was fatally injured.
The theory also is at odds with several of the cases holding that a landowner owes no duty to pedestrians injured on adjoining roadways. Those decisions have rejected efforts by plaintiffs to recast their liability theories in terms of unsafe conditions on the landowner’s property. For example, in Allen the plaintiff argued that the landowner bore responsibility for the plaintiffs injury while turning into its parking lot because the lack of sufficient markings or signs in the lot to advise about the safest entry point made the lot unsafe. Allen,
Of the few cases that address the purportedly unsafe condition alleged by New-ell here — inadequate parking — most decline to recognize a new duty giving rise to liability to victims injured off the landowner’s premises. One of the cases most directly on point is the Rhode Island Supreme Court’s decision in Ferreira. Three parishioners drove to midnight Christmas Eve services and parked at a lot across the street from the church. As they were leaving the services and crossing the street to reach their car, two of them were struck by a vehicle and one of them died. One of the theories asserted as a basis for liability was that “the church did not provide adequate on-site parking for parishioners” and therefore “should have foreseen that a substantial number of parishioners would park in the nearby lot that was separated from the church by a public highway, and would have to cross that public highway to reach their vehicles in the dark late at night after Mass.” Ferreira,
In reaching this conclusion in Ferreira, the court relied on a California decision that declined to hold a landowner liable for fatal injuries resulting from a crime in an adjacent parking lot. The decedent in Steinmetz v. Stockton City Chamber of Com.,
[I]t is impossible to defíne the scope of any duty owed by a landowner off premises owned or controlled by him. The instant case cannot be distinguished from that of a movie theater showing the latest academy award winning movie, or a department store holding its annual clearance sale, neither of which is able to afford sufficient parking for the number of invitees seeking to enter the premises. We are aware of no obligation upon the movie theater or department store owner to provide additional lighting on the city streets or hire security guards to patrol those streets for the safety of its invitees. Nor can the instant situation be distinguished from that of a homeowner whose business guests must park on city streets because there is not sufficient parking on the premises. It is not legally incumbent upon the homeowner to provide additional lighting or hire security guards to escort his guests to their cars.
Id. at 408.
In Santoleri v. Knightly,
Two New Jersey decisions have reached opposite results on this issue. In Ross v. Moore,
On appeal plaintiffs primary theory of governmental tort liability is novel. She argues that the school’s motion for summary judgment should have been denied under N.J.S.A. 59:4-2 because public property owned or controlled by the school was in a dangerous condition proximately causing her injury. Recognizing that Warwick Road itself is not owned or controlled by the school, plaintiffs attenuated argument, without supporting authority, is that the school property itself was in a dangerous condition because of its limitation to about 250 parking spaces and the reasonable foreseeability that an adult evening student en route to class, like plaintiff unable to park at the school, would park in the shopping center parking lot opposite the school and from there jaywalk across Warwick Road and be struck by a vehicle.
Id. at 400. The court observed that “no danger inhered in the school’s failure to provide sufficient parking spaces for adult evening students except in combination with the reasonable foreseeability of an accident to an adult evening student forced to park elsewhere.” Id. Because the school neither owned the roadway where the accident took place nor the shopping center lot where the plaintiff parked, the court held that the school could not be held liable on the plaintiffs theory. Id. at 400-01.
In Mulraney v. Auletto’s Catering,
The court in Mulraney began by discussing the duty of a business to provide reasonable care to its invitees, but stated that in New Jersey there had been a “gradual change in the law in favor of a broadening application of,a general tort obligation to exercise reasonable care against foreseeable harm to others.”
We note that the Court in Mulraney did not actually base liability on a breach of a duty by the caterer to provide additional parking. Instead, the court allowed recovery on a theory closely resembling the arguments rejected in Allen, Davis, and similar cases about a landowner’s supposed duty to erect warning signs or take other measures to protect invitees from dangers on adjoining roadways. To that extent, the decision is at odds with the great majority of authorities in this area. Noting the Mul-raney decision’s departure from common law premises liability, the trial court in .this case concluded that Mulraney is based on “New Jersey law [that] is so different from Pennsylvania’s on this subject as to render Mulraney inapt.” Trial Ct. Op., 4/17/14, at 14 (footnote, omitted). Other courts also have rejected Mulraney’?, rationale, even in such jurisdictions as New York, which (like New Jersey) has departed from traditional premises liability. See Santoleri,
Not surprisingly, Newell relies heavily on Mulraney and contends that the trial court erred in failing to follow it. He argues that rather than differing from Pennsylvania law, the multi-factor analysis applied in Mulraney resembles that used by Pennsylvania courts to ascertain whether a duty exists under Althaus ex rel. Althaus v. Cohen,
We begin with the Supreme Court’s admonition that, “unless the justifications for and consequences of judicial policymaking are reasonably clear with the balance of factors favorably predominating, we will not impose new affirmative duties.” See-bold,
The Supreme Court’s admonition has particular force here, because the new duty Newell advocates will apply to landowners’ relations with their business invitees. Although this Court has occasionally encouraged their abandonment, see, e.g., Updyke v. BP Oil Co.,
A comparison to Section 343 of the Second Restatement, one of the main provisions Newell cites in support of his claim, see Newell’s Brief at 12 & n.45, illustrates the difference. Section 343 provides:
Dangerous Conditions Known to or Discoverable by Possessor
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 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
(e) fails to exercise reasonable care to protect them against the danger.
Liability of a “possessor of land” under this provision depends on whether the harm to his invitee is caused “by a condi
In this connection, we note that the main decision on which Newell relies, Mulraney, was decided under a legal approach that rejected the premises liability rules that are a part of well-settled Pennsylvania law. We therefore agree with the trial court that Mulraney is inapposite and we decline to follow it. The policy analysis applied in Pennsylvania is much more closely aligned with that reflected in the New Jersey Appellate Division’s contrary decision in Ross.
More broadly, we believe there is considerable force to Montana West’s argument that the alteration of Pennsylvania premises liability rules that would result from creation of the new duty Newell advocates would significantly burden property owners across Pennsylvania by exposing many of them to greatly expanded potential liabilities. See Montana West’s Brief at 18-19. Numerous small businesses in towns throughout the Commonwealth — dry cleaners, retail merchants, pizza shops— have no parking facilities on their premises at all. They rely instead on municipal street parking or public or private lots or garages. Newell’s theory suggests that their lack of on-site parking may subject such businesses to potential liability for injuries to invitees who are at or on their way to off-site parking facilities.
Of course, Montana West did provide on-site parking, but Newell argues that Montana West nevertheless should be held liable because Newell’s expert evidence will show that the number of parking spaces on Montana West’s lot was insufficient for major events. See Newell’s Brief at 18-19. Montana West’s unrebutted evidence, however, is that it had at least the number of spaces on that lot (231) that had been required by local zoning authorities. See Montana West’s Brief at 3, 11. Therefore, even for a local business with onsite parking that is compliant with local government edicts, Newell’s theory would still create a potential risk of liability because the business did not provide more parking spaces than the local authorities required.
The potential exposure that would result from acceptance of Newell’s new duty rule would be broad in other respects too. New-ell focuses his argument here on preventing the risk that an invitee will park on the other side of a dangerous highway, but, as the Steinmetz decision illustrates, acceptance of his theory could expose a landowner to liability if an invitee elects to park at any other dangerous location as well. See Steinmetz, 214 CaLRptr. at 408. The choice to park in the DHL lot was that of Decedent, though the parties dispute whether there were sufficient available alternatives to make parking else
In light of Scarborough and Gardner, we conclude that Newell’s theory of liability is contrary to the law of Pennsylvania and that the lack of sufficient parking at Montana West did not impose any existing duty on Montana West to protect Decedent from the dangers of parking elsewhere.
Finally, we agree with the trial court that if consideration of Newell’s theory requires an analysis under the Althaus rubric, the conclusion would be the same.
Here, the relationship between the parties is that of a business to its invitee.
Newell has provided little discussion of how the social utility prong of Althaus applies here, and without further development by the parties, we fail to see how this factor tips the balance in either direction. Decedent was attending a concert — a worthwhile activity, but one not necessarily essential to society. The analysis might differ if the establishment were a medical facility that provides emergency services and where onsite parking may be more of a necessity. Overall, we conclude that this factor is neutral.
The nature of the risk certainly is significant, and Newell argues that past accidents on Route 309 and past conduct of Montana West to deter its customers from parking on the other side of Route 309 prove that the risk was both foreseeable and foreseen.
As already discussed, we believe the consequences of creating the duty Newell advocates will be adverse and significant for a large number of small businesses in the Commonwealth. We believe this is a very important factor in this analysis.
We conclude that the overall public interest does not call for creation of this new duty. There are other and more direct ways of protecting against harm to business invitees from the hazards on others’ property that are implicated here. The Commonwealth is already responsible for the safety of Pennsylvania’s highways, and motorists are responsible for driving safely on them.
On this record, we do not believe the overall public interest requires creation of a new duty to provide adequate parking that would subject landowners throughout the Commonwealth to potentially broad liabilities for harms on others’ properties that those landowners may have only limited if any means to prevent. As the court in Charlie observed, “[t]his case, focused on the individual interests of [the plaintiff], does not necessarily translate into the broader realm of whether this Commonwealth’s interests are best served by imposing [this new] duty upon the public.” Charlie,
For all of these reasons, we join the majority of other courts that have considered this issue and hold that a landowner may not be held liable to a business invitee for injuries that occur to the invitee on an adjoining highway or other property as a result of breach by the landowner of an alleged duty to provide sufficient parking on its own premises. We hold that no such duty arises under Pennsylvania law that would form the basis for a negligence action in these circumstances.
Voluntary Assumption of Duty Through Prior Safety Measures
Finally, Newell claims that Montana West took safety precautions for its patrons in the past and thereby assumed a duty of care to protect its invitees from accidents on Route 309. According to New-ell, Montana West (1) had employees “patrol[ ] the parking lot across the street” to dissuade its invitees from parking there, Newell’s Brief at 4-5 & n.9 (citing Deposition of John Giambrone, 5/17/13, at 54-55),
Newell’s complaint did not allege that Montana West voluntarily assumed a duty of care. Rather, it alleged that Montana West “failed to do anything to protect customers who were crossing the street to get to [its] business.” Compl. ¶ 52; see id. ¶¶ 59, 64, 91. The evidence to which Newell now cites in his brief fails to show any consistent or ongoing pattern of conduct by Montana West to voluntarily undertake safety precautions regarding invitees parking outside its premises.
In fact, a review of the testimony by Defendant John Giambrone (one of Montana West’s owners) that is relied upon by Newell shows that the evidence falls short of what Newell claims about it. Giambrone specifically denied under oath that Montana West “patrolled” the DHL lot or other areas along Route 309, and he did not assert that Montana West security personnel helped pedestrians cross Route 309. See John Giambrone Dep., 5/17/13, at 40-41, 43, 54-55; Giambrone Statement at ll.
The decisions that reject imposition of a duty of care for business invitees on an adjoining highway also reject the argument that occasional past voluntary measures to protect patrons, like those alleged here, somehow change application of the no-duty rule. In Ferreira, for example, the church had sometimes asked local police to control traffic following church services, but had failed to do so for the Christmas Eve mass after which the fatal accident occurred. The plaintiffs argued that “even if the church did not have a duty to patrol traffic, the church assumed such a duty by requesting traffic control by the police on prior occasions” and it therefore “had a duty to warn parishioners when the church failed to perform its duty on other occasions.” Ferreira,
Newell relies on Section 323 of the Second Restatement of Torts, which provides that if someone voluntarily undertakes to render services to another for their protection, that person is liable for negligence in performing the duty that it voluntarily assumed. Newell’s Brief at 10-11.
Under these decisions, we agree with the trial court that there is no basis to hold Montana West liable for breaching a duty that it voluntarily assumed to protect its invitees from accidents on Route 309. Even if Montana West engaged in some protective conduct on some sporadic prior occasions, such conduct did not rise to the level of voluntary assumption of a legal duty that obligated Montana West to provide protective services at all later events. Moreover, there is no evidence of any promise or undertaking by Montana West to Decedent, implicit or otherwise, to personally provide Decedent with safe passage to and from the DHL property or to protect him from an accident on Route 309 if he parked on the DHL property.
In addition, as cases like Ferreira point out, Newell’s theory of a voluntary assumption of a duty to protect patrons from highway accidents raises significant public policy concerns, because highway safety is a governmental responsibility. See Fer-
The Supreme Court’s decision in Leary v. Lawrence Sales Corp.,
Here, analogously, Montana West’s purported prior precautionary actions to dissuade invitees from parking on the other side of Route 309 did not amount to a voluntary assumption of control over the highway so as to impose the duty of care and ensuing liability on Montana West for any injuries occurring there. Newell failed to identify any material issues of fact suggesting the Commonwealth released control over the highway, abrogated its duty to keep the highway safe, or conceded that Montana West could assume limited responsibility of keeping the highway safe for pedestrians. See Leary,
As the trial court accurately noted, “under Pennsylvania law ... there is no duty upon the possessors of property abutting a state highway such as Route 309, to protect or warn individuals of the dangers of crossing the highway.” Trial Ct. Op., 4/17/14, at 21. In light of the clear law on this specific question, and upon reviewing the record evidence cited by Newell, we find no error or abuse of discretion in the trial court’s conclusion that Montana West assumed no such duty voluntarily.
Conclusion
For all of these reasons, we hold that the trial court did not err in concluding that Montana West did not owe a duty to Decedent on the facts of this case that can give rise to liability for negligence. We therefore affirm the entry of summary judgment in favor of Montana West.
Order affirmed.
Notes
.The business establishment is operated by defendant Montana West, Inc., and defendants John and Colleen Giambrone are the owners of that corporation. Montana West, Inc. is located on property in Richland Township that it leases from defendant Giambrone Enterprises, LP, which is owned by defendants John, Colleen, Joseph, and Angela Gi-ambrone and defendant George Krizenowski. Answer ¶ 34; Ex. "E” to Newell’s Resp. to Mot. for Summ. J. of Montana West (John Giambrone Dep., 5/17/13, at 7-9, 68-69). Though named as a defendant, “The Storm” is merely the name of a nightclub on the premises. Trial Ct. Op., 4/17/14, at 2. This opinion uses "Montana West” to refer to both the business establishment and to all defendant-appellees collectively.
. Newell named Oliemuller as a defendant in this action but later settled the claim against her.
. The trial court initially entered summary judgment for the defendants on April 17, 2014. Newell them moved for reconsideration. In its August 5, 2014 decision, the trial court granted the motion for reconsideration and then again granted summary judgment to the defendants.
. On September 22, 2014, Judge Lachman filed an opinion under Appellate Rule 1925(a) that attached and incorporated her two prior opinions.
. It is undisputed that Route 309 is a public highway maintained by the Commonwealth. See Trial Ct. Op., 4/17/14, at 4.
. We may use decisions from other jurisdictions "for guidance to the degree we find them useful and not incompatible with Pennsylvania law.” Track v. Fettin,
. The Commonwealth Court recognized that Section 349 had not yet been adopted by the Supreme Court of Pennsylvania, but it cited decisions in other jurisdictions that applied the section. Allen,
. See, e.g., Packard v. Darveau,
. Accord, Haymon v. Pettit, 9 N.Y.3d 324,
. The court distinguished cases in which the defendant owned property on both sides of the highway and therefore undertook to provide its invitees safe passage from one of its properties to the other. See MacGrath,
. The trial court cited other Pennsylvania trial court decisions that also reached a similar result. See Trial Ct, Op., 4/17/14, at 10-11 (citing Calabretta v. Bulldog Constr. Co.,
. Although the City had governmental immunity, the Court in both Scarborough and Gardner did not base its decisions on that fact. In Gardner, the Court also held that its rejection of the proposed duty applied regardless of whether the children were considered trespassers or "invitees or licensees," Gardner,
. In a letter from Richland Township’s Assistant Zoning Officer, dated June 14, 2001, the township granted permission to Montana West to operate with 231 spaces because that was the number of parking spaces at another restaurant that previously occupied the premises. See Ex. “C” to Newell’s Resp. to Mot. for Sum. J. of Montana West (Ex. 2 to Deposition of Richard Brittingham Dep., dated Oct. 18, 2013).
. In addition to the reconfiguration, Montana West also claims it added a gravel lot. See Montana West's Brief at 3; Ex. "D” to Newell's Resp. to Mot. for Sum. J. of Montana West (Deposition of Nathaniel Dean Hoffner, dated May 1, 2013, at 32-33); Ex. “E” to Newell's Resp. to Mot. for Sum. J. of Montana West (John Giambrone Dep., 5/17/13, at 65-66).
. See also Snyder Elevators, Inc. v. Baker,
. The Washington opinion is not prece-dential, but citable for its persuasive value under that court's local rules. Wash. Gen. R. 14.1(a). We consider the opinion as part of our effort to assess the general state of the law in this area. See In re McKinney,
. Newell does not actually cite Althaus, but instead cites three decisions that apply the Althaus analysis. See Newell's Brief at 23 n.83 (citing R.W. v, Manzek,
. Newell claims the DHL lot was the most viable alternative, and he points to evidence that Montana West invitees had used it on other occasions. See Ex. "C” to Newell's Resp. to DHL's Mot, for Sum. J. (expert report of Kevin O'Connor, P.E., 12/2/13, at 9 (citing statement by DHL mechanic that "bar customers were parking in the DHL lot after hours without the shop's permission1’)). The trial court, "[v]iewing the facts in the light most favorable to [Newell]," concluded that "patrons of Montana West sometimes parked their cars on the DHL parking lot.” Trial Ct. Op., 4/17/14, at 18. The evidence was disputed whether Decedent parked in the DHL lot because of a lack of space in the Montana West lot or for other reasons. Montana West presented disputed evidence that Decedent may have parked in the DHL lot because he liked to park in out-of-the-way places to avoid having others see markings on his car. Trial Ct. Op., 8/5/14, at 6 n.3 (citing Hoffner Dep., 5/1/13, at 41, 44-45).
. In reaching this conclusion, we disagree with Newell’s reliance on Sections 323, 343, 343A, and 364 of the Second Restatement as support for his theory of liability, We discuss Section 323 in the next segment of this opinion. Sections 343, 343A, and 364 authorize liability for injuries directly caused by hazardous conditions on the landowner’s property. Section 364, specifically, imposes a duty on possessors of land to protect "others outside of the land” from "physical harm caused by a structure or other artificial condition on the land.” Even if this Court accepts the argument that insufficient parking is an artificially dangerous condition, the Supreme Court's decision in Gardner,
.Newell makes only a perfunctory argument under Althaus, and, as we previously noted, does not even cite Althaus as precedent. See Newell’s Brief at 23-25. Although an Althaus argument requires creation of a record that would inform the broad policy judgments that must underlie creation of any new duty, see Seebold,
. We disagree with the trial court’s view, Trial Ct. Op., 8/5/14, at 13, that Decedent ceased to be an invitee because the fatal accident occurred as he was leaving Montana West. An invitee remains an invitee on the way into the business and on the way out of it. See Trude v. Martin,
, Newell notes that another Montana West customer had previously been fatally injured crossing the same area of the highway as Decedent. See Ex. "T” to Newell’s Resp. to Mot. for Sum. J. of Montana West (Commonwealth of Pennsylvania Police Crash Report Form, 11/24/06, and Richland Township Police Department Incident Report Form 59-06-04272, 11/24/06). Montana West responds (without citation to support in the record) that this earlier fatality involved a local resident and was unrelated to parking issues. Montana West’s Brief at 17. Defendant John Giambrone testified at his deposition that he was aware of that fatality and knew that customers walked across Route 309 to and from Montana West, though he added that he had never seen any of Montana West's customers park in DHL’s parking lot. Ex. "E" to New-ell’s Resp. to Mot. for Sum.. J. of Montana West (John Giambrone Dep., 5/17/13, at 41, 59-61). We discuss Montana West’s past conduct to deter parking on the other side of Route 309 in the next segment of this opinion.
. We note that in light of the obvious dangers to pedestrians, the Vehicle Code forbids walking along or across a highway and other forms of jaywalking. See 75 Pa.C.S. §§ 3543-3544.
. John Giambrone’s deposition was filed as Exhibit "E” to Newell’s Response to Montana West’s Motion for Summary Judgment.
. Giambrone gave an unsworn statement to an insurance adjuster in 2012 that contains this sentence: “we have our own patrol car that drives around the parldng lot across the street to tell people not to park there.” Giam-brone Statement at 11. Though the full statement was unclear, Giambrone seemed to explain in it that the car patrolled Montana West’s own lot and that it went to a lot across the highway only if a security officer actually saw patrons parking there without permission ("if people park across the street, he goes and tells them they don’t have permission to do that”). Id. at 11-12. When asked about his statement in a later sworn deposition, Giam-brone testified that Montana West did not patrol the lot on the other side of the highway and that it only patrolled its own lot. John Giambrone Dep., 5/17/13, at 39-40, 53-55, 79.
. Two other witnesses testified that they did not recall ever hearing a disc jockey at Montana West make such an announcement about parking. Ex. "F” to Newell’s Mot. for Summ. J. of Montana West (Deposition of Ryan W. Naugle, 10/11/13, at 62); Ex. "J” to Newell's Mot. for Summ. J. of Montana West (Deposition of Danielle Masleny, 10/18/13, at 14).
. Section 323 states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.
. Accord Underhill v. Shactman,