*2 KELLY, McEWEN, JJ. Before OLSZEWSKI McEWEN, Judge: from order appeals here consider cross

We (hereinafter Markets, Acme Inc. granted motion of in following a verdict for a new trial appellee) referred as Leichter, of the Estate of Executrix Dorothy favor as (hereinafter appellant). We referred Leonard Leichter affirm. aptly summarized appeal are underlying

The facts this which considered the court en banc opinion post-verdict motions: capacity representative brought

Plaintiff suit husband, who her deceased the estate of executrix of a myocardial being suffered infarction as the result of parking from a lot Eastern Realty abducted owned There is Company. agreement substantial that on or p.m. September about 8:00 the Leichters 10, 1980, to the Bala Cynwyd Shopping shop drove Center Acme Supermarket. shopping defendant center con- stores, sisted of fourteen all tenants of Eastern Realty Markets, Company, Acme Inc. and the Lord & Taylor agreement April [8, 1956], predeces- store. dated By Eastern Realty Incorporated granted sor title to had Markets, predecessor of Acme an ease- Incorporated egress ment for of the land ingress portion over a for its in its privilege park and the business invitees to lot. These same for East- parking rights provided were agreements. in their leasing Additionally, ern’s tenants Strouse, the firm testimony establishing there was managed, Eastern Greenberg Company agent for *3 It is also operated property. and maintained this admit- Leichters, parking ted that the to find accommoda- unable lot, in Acme’s parking parked tions their automobile parking the area owned Eastern. There was testimo- by the area utilized darkened ny that the Leichters was light Having an overhead out of order. because was shopping, park- their decedent returned to the completed he ing area to his car and it was there that was abducted as a result of which he suffered a heart attack. evidence, the completion presentation After of the of the (1) in the case— judge principal trial ruled that the issue Markets, Acme as the holder of an ease- appellee whether ingress egress privilege park ment for with a the land, of a matter of “possessor” was a the land—was law (2) concluded judge, determined the and then that be possessor judge Acme a of the land. The trial then was (1) there a jury the issues of whether was submitted possessor owes to a business duty breach invitee, so, (2) duty and if whether the of that was breach The proximate appellant’s injuries. jury the cause of the against appellant returned with a verdict favor of banc, however, en ruled that the trial appellees. court of treating the as matter law had erred issue court jury appellee the should determine whether concluded pertinent land. As a Markets was Acme result, en banc the motion for new trial granted the court Acme Markets. presented by that had been in their cross appellees first the assertion of consider We rejected erred it the court en banc when appeal Markets, entry Acme Inc. for the of appellee motion guided in our consideration of n.o.v. We must be judgment that: the well established caveat this assertion cases, only in clear n.o.v. should be entered judgment A in favor should verdict and all doubts be resolved n.o.v. can be judgment properly A motion for winner. that, could as a no two minds differ granted only when his law, to make out case. party matter of failed Clark, 30, 34, Kearns 493 A.2d Pa.Super. (citations omitted). A of all of the (1985) thorough review en the conclusion that court banc compels evidence n.o.v. since appellees’ judgment motion for properly rejected which the than sufficient evidence there was more Accordingly, liable. appellee could find that was jury rejecting appel- the court en banc affirm the decision of we n.o.v. judgment motion for lee’s Appellant Where similarly presents but one issue premised on the for our review: ^[1] from criminal acts invitees protect of land business land, defined persons who come on the of third Torts,[2] (Second) is the the Restatement (Second) posses defines a of Torts 1. Section 328E of Restatement *4 of land as: sor Defined § Possessor Land 328E. possessor is A of land (a) occupation with person who is land intent a it, or control (b) person occupation of with intent to who been in land a has has, it, subsequently occupied person it with other control if no it, or intent to control land, occupation (c) person of the who is to immediate a entitled (a) (b). person under clauses or no other is in if (Second) provides: of Torts 344 of the Restatement or not question “possessor” whether a business is a and, therefore, invitees, owes a to business a ques- tion of law for the court where possession results from an of use. easement hold the question

We of whether the holder of an easement is a for the question fact-finder. expectation The this rather question fundamental quickly by would be addressed and even resolved abundant authority proven has false. appellate particular Whether and, is to confronted question issue be as a of law there- fore, court, is one to be decided or whether it is a is, question of fact to be resolved once by jury, study obvious, beyond moves routine and a most troublesome which there inquiry upon has been a dearth of decision. Although case, it was not the principal holding our suggest Court did Supreme years ago some that the issue of whether an easement holder is a “possessor” ques- is a tion for the fact finder. Cooper v. City Reading, Pa. (1958). There, Supreme 140 A.2d 792 our Court stated:

The identity owner of the canal bed at anytime fifty years divulged, the last is not nor the terms of the easement, original city but the had an easement. That is denied; it is used fair continuously, inference has never been The city possessed disturbed. ordi- nary power of an easement holder to secure and make rights, safe its exercise of purpose and for that to enter spot discharge, the bed at the and make reasonable alterations or repairs. city completely controlled the Open § 344. Business Premises to Public: Acts of Third Persons

or Animals possessor open public entry A of land who holds it for for his purposes subject public business to members of the they purpose, physical while are the land for harm accidental, negligent, intentionally caused or harmful acts of animals, persons third or failure of the exercise reasonable care to done, (a) being likely discover that such acts are are to be done or or (b) give warning adequate to enable the visitors to avoid the harm, protect against or otherwise to them it. *5 by the manner in upon pool land which the was located it exercised its easement. Id., this statement 392 Pa. at 140 A.2d 796. While and firm Supreme of our Court cannot be considered clear support of it to our conclu- principle, lends pronouncement exer- easement holder question that the of whether an sion for is a determination control and requisite cised underlying of requires fact finder and examination the the event, any In our as revealed the evidence. facts practical reflection the effect upon of the issue and analysis to decide that the issue of whether ruling of our causes us land, “possessor” presents of not an easement holder is or the mixed of and fact which is within question law course, after, the trial court jury of a province decide — upon the patient expression jury in instructed has careful law. applicable the holding, compelled that we are

Having expressed that, view, in the far jury prepared our better observation orderly the its if its are aided for task deliberations interrogatories. While the essen- special in focus effected find for jury simplicity tial verdict —we may have or ... find plaintiff ... we defendant — in a modern trial past, all needed eras that was been complex presents or routinely multiple defendants involves technolog- upon testimony or scientific theories relies meet quick bench and bar were specialists. ical trial inter- special challenges procedure these devised to focus jury rogatories so enable move they fashion as orderly resolve issues several in full thereby final demonstrate their verdict —and towards system. effectiveness of the jury measure the invaluable every interrogatories can be Surely, special the device of more resolving issues of a helpful jury bit nature, easement as whether or traditional determination of land. The holder only may of “control” and the conclusion “possession” re- of facts and factors presentation result from the (2) easement, (1) holds an party flect party prerogatives manner which the exercises the *6 course, will, easement. The trial court determine there has presented whether been evidence as is to deny application sufficient an for a non-suit. If that refused, is it remains for the to determine application jury liability, jury but the must first decide whether ease- “possession”. then, ment holder was in if Only the ease- holder ment is determined to have in possession, been will consider, jury proceed order, the issues of whether the easement holder breached the duties of an easement in possession, and, so, holder if whether that breach was the

proximate cause of the injury sustained.

Therefore, agree ruling we with the of the court en banc appellant whether Acme Markets was a question a for the jury and affirm the consequent decision of the court en grant banc to a trial. new

Order affirmed. KELLY, J., concurring opinion. files KELLY, Judge, concurring:

I agree that question of whether Acme was a “posses- sor” in the (Second) context of Restatement of Torts 328E § a question is mixed of law and fact. I Additionally, would find that the trial court Judge misconstrued Section 328E. Caesar determined that possessor, Acme was a “not with mind, strict property concepts rather, of control in but with view the facts of this case concepts and tort governing one duty (Caesar, J., owes a business invitee.” Dissent- ing Opinion 4-5).1 at analysis Thus, This is fatally flawed. there are two reasons to affirm grant of new trial. Not only was the question one for the jury to decide, but the standard used by judge the trial to decide the issue was incorrect. Judge judge presided

1. Caesar was the who at trial. After he denied motions, post Acme’s verdict the case was reviewed an en banc panel of panel granted the Common Court. Pleas reversed and Judge new trial. panel lengthy Caesar sat on the en banc and filed a dissenting dissent to its opinion decision. It is that to which I refer throughout opinion. this (Second) Restatement Torts

Under § predicated upon one’s status land. clearly Dissenting Opin- Contrary analysis the trial court’s {see merchant, 5), or a ion the economic benefit derived being property, provide reason for on the does patron’s liability. Leary Accord v. Law- independent basis 32, 389, 396, 442 Pa. 275 A.2d 35-36 Corp., rence Sales (1971). possession is that the only It is when established and the purpose injured party’s invitation business purposes relevant for property on the become presence Thus, under does determining liability rather, possession; possession establishes not establish SEPTA, n. Pa.Super. See Carswell duty. *7 770, (1978). A.2d 773 n. “Possession,” in the of Section must be context applicable the definition of determined with reference to Again, contrary of 328E. to the “possessor land” Section a to Section 328E does not analysis, trial court’s Comment are property concepts inapplica- support proposition 8). stated, Opinion Simply Dissenting ble. {See (physical and control explains occupation comment (the legal right possession), than title to possession), rather Thus, possession under 328E. possession determine Section occupation arises and control and under Section 328E from or title. on incident rise to the instant case occurred giving The Leichter, the Realty. Eastern Mr. property owned car which he deceased, as he returned to the was abducted it Realty’s Consequently, lot. is parked Eastern exercised over Eastern’s degree occupation of control of easement determines parking lot Acme’s which virtue liability Acme’s under Section 344. defined easements as

Professors Casner and Leach have follows: The in land. nonpossessory

An easement is a interest is land in the easement exists which possession words, In the owner of an another. other always another for a to the land of right easement has a use right pos- from a purpose, distinguished specified that land. sess 8, at 1109-1110 Leach, Ch. Property,

Casner § omitted). 1969) (footnote See also Co. (Little, Brown & (“An an easement is interest Property Restatement § another____”). Comment possession in the b in land 450 states: An is an interest interest. easement Nonpossessory b. not, itself, in the of another. It in land it, therefore, The is not interest. owner possessory given having to those protection which entitled of an interests. The fact that the owner possessory possessory interest is not deemed have easement respect land to which it exists indicates lesser with had normally the land than is degree control person Thus a possessory do have interests. persons who such control of the way only has a over land has who his and has way to enable him to use necessary land as is him exclude others from no such control as to enable the land does not interfere with making any use of his. added). transferred an degree of control

(Emphasis easement and the varies with the terms of the easement manner in which the easement is exercised. interest, easement is a suffi

Although nonpossessory give exist so as to rise to may cient control *8 328E, under Sections 344 property stated, Thus, correctly the trial court supra. “[u]nder law, treated may the owner of an easement be Pennsylvania v. Read ‘possessor’ purposes liability. Cooper (1958).” 452, 140 (Dissenting Opinion, A.2d 792 392 Pa. ing, 7). Supreme In our reasoned: Cooper, at Court controlled the land City completely in which it exercised its

pool is located manner must, therefore, duties of a It held to the easement. be land’____ ‘possessor added). 462, (Emphasis 140 A.2d at 796. How-

392 Pa. ever, non-possessory because easements are definition to

interests, liability must limited those cases possession be in significant exercise of an easement results where To hold easement holder. property control over duty right to where no to create a control otherwise would exists.2 control grant I in the decision to join majority’s

Consequently, parties In this trial will have the new trial. new issue present testimony argument to opportunity in a so Acme’s easement was exercised manner of whether under 328E. Because “possession” to constitute in a so as rise may give be exercised manner to an easement majority I with the that Acme liability, agree to to verdict. entitled a directed was not A.2d 1252 Appellee, Pennsylvania, COMMONWEALTH CAIN, Appellant. Charles Superior Pennsylvania. Court 2, June 1986.

Submitted 31, Filed Oct. required provide be 2. The issue of whether merchants should high appeal. security presented this private crime areas was not questioned. policy been See has I note that the wisdom of 26-27, Cunningham Drugs, Mich.App. N.W.2d Williams v. (1985) respect (duty provide care with reasonable 459-60 security provide private duty does not include business invitees areas). parameters of a guards high do not that the crime I believe clearly set have been of care toward business invitees merchant’s Commonwealth, on the issue until and I reserve comment this clearly presented properly briefed. issue is