Are the Owners and Operators of a Parking Lot in the Business of Selling a Product Under Section 402A?

The Eastern District of Pennsylvania in Anastasio v. Kahn, No. 09-5213, 2010 WL 114879 (E.D. Pa. Jan. 13, 2010) [PDF] was recently asked to decide this question and held that owners and operators of property used as a parking lot were not sellers under Section 402A of the Second Restatement of Torts.

Plaintiff Theresa Anastasio exited an Acme supermarket on the sidewalk while operating a battery-powered scooter. The sidewalk and parking area were on the same level and there were “no marked crossings, crosswalks, skywalks, tunnels or any other sort of pathway, markings or stripings on the premises to mark off where a pedestrian . . . could go to be sure they were safe from motor traffic.” Id. at *1. As Anastasio was proceeding into the parking area, Defendant Harvey Kahn, Jr. struck her with his vehicle. As a result of this accident, Anastasio filed suit against Kahn, the supermarket, and the owners and operators of the parking lot asserting claims under both the Americans with Disabilities Act and state law strict liability.

The supermarket and the owners and operators of the parking lot moved to dismiss the strict liability claims, asserting that (1) the parking lot is not a “product” and (2) they are not “sellers” under Section 402A. The Court agreed and dismissed those claims. In so doing, the Court stated that this specific question had not been addressed by any Pennsylvania state court or the U.S. Court of Appeals for the Third Circuit. Therefore, the Court looked to interpretations of the word “seller” by Pennsylvania courts and found that, while interpreted broadly, it always involved the “transfer of possession of the subject product.” For instance, the Court cited to two decisions, one finding that United Airlines was not a seller because it was not in the business of transferring possession of an aircraft, and another finding that an amusement park was not a seller because it did not transfer control or possession of the park ride at issue.

Relying on this precedent and decisions from other jurisdictions, the Court found that since there was no transfer of a parking space, the supermarket and the owners and operators of the parking lot were not “sellers” and were not subject to strict liability under Section 402A. The Court also noted that this decision was in line with Pennsylvania law that strict liability principles are generally inapplicable to real property. Since the Court found that defendants were not “sellers” under Section 402A, it did not have to address defendants’ second argument that the parking lot was not a “product.”

This question had not previously been addressed in the Pennsylvania courts; it’s likely that it has not been addressed in many jurisdictions. Owners and operators of parking lots, or similar real property, that are faced with a strict liability claim should be aware of this argument and the precedent holding these persons and entities are not “sellers.”

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