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. e du/thir dc ir c uit_2001/44Filed March 9, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 00-1017 & 00-1023

MICHAEL KIRSCHBAUM; HELEN KIRSCHBAUM,

v.

WRGSB ASSOCIATES d/b/a GSB BUILDING;

THE BALCOR COMPANY

v.

INSIGNIA COMMERCIAL GROUP

WRGSB Associates; The Balcor Company, Appellants in 00-1017

Insignia Commercial Group, Appellant in 00-1023

Appeal from the United States District Court for the Eastern District of Pennsylvania. (Civil No. 97-cv-05532) Magistrate Judge: Thomas J. Rueter

Argued: December 4, 2000

Before: McKEE, ROSENN, and CUDAHY,* Circuit Judges.

(Filed: March 9, 2001)

___________________________________________________ ______________ * Honorable Richard D. Cudahy, Circuit Judge, U.S. Court of Appeals for the Seventh Circuit, sitting by designation.Thomas P. Bracaglia, Esq. (Argued)

Frank S. Nofer, Esq. Kelly, McLaughlin & Foster 1617 John F. Kennedy Boulevard

Suite 1690 Philadelphia, PA 19103 Counsel for Appellants/ Cross-Appellees

Carl D. Buchholz, III, Esq. (Argued) Thomas A. Kuzmick, Esq. Michael A. Meehan, Esq.

Rawle & Henderson

1339 Chestnut Street 1 South Penn Square Widener Building

16th Floor Philadelphia, PA 19107 Counsel for Appellee/ Cross-Appellant

OPINION OF THE COURT

CUDAHY, Circuit Judge.

On September 12, 1995, Michael Kirschbaum fell down a stairway in the GSB Office Building, located in Bal a Cynwyd, Pennsylvania. Kirschbaum sustained serious injuries as a result of the fall and, seeking compe nsation for these injuries, sued the building's owner , WRG SB Associates (WRGSB). In turn, WRGSB filed a third-pa rty complaint against Insignia Commercial Gr oup (Insig nia), the building manager with whom WRGSB had contracted to manage, maintain and repair the building. Both part ies settled with Kirschbaum, but retained their r espec tive rights of contribution and indemnity. The United St ates District Court for the Eastern District of Pennsylv ania apportioned liability equally between the two parti es and required each party to pay half of the settlement a mount. The parties appeal, each seeking to have the other bear the

full cost of settlement. We affirm.

2I. BACKGROUND

Michael Kirschbaum maintained a medical practice in the GSB Building, where he had been a tenant since 1988 . On average, Kirschbaum worked six days a week, often a rriving at the building's parking garage before 7:00 a.m., when the building opened. Because the building was still clo sed at the time of Kirschbaum's arrival, he would walk up aflight of stairs that led to a door to the building, a key to which he had been supplied by Insignia, the building mana ger. This flight consisted of 15 steps, and it was walle d on both sides. A wall-mounted handrail ran up one of these walls, but, at the bottom of the stairwell, the handrail h ad become detached from the wall and was resting on the stair s. While Kirschbaum was aware of the broken handrail (it had been

broken ever since he became a tenant in the GSB bui lding),

he nonetheless continued to use the stairs.

At approximately 6:00 a.m. on September 12, 1995, Kirschbaum arrived at the building and parked in th e lower parking garage. As he was climbing the stairs leadi ng to the building, Kirschbaum stumbled while attempting to p lace his foot on the fifth step. Because the stairway's handrail was broken and resting on the stairs at the fifth s tep, Kirschbaum was unable to catch himself, and he fell to the bottom of the stairs. As a result of the fall, Kirs chbaum suffered not only from fractur ed bones, but also f rom a chronic infection of the right leg which may r equi re the amputation of that leg. See Kirschbaum v. WRGSB Associates, No. 97-5532, slip op. at 2 n.1 (E.D. Pa . filed Dec. 14, 1999).

Kirschbaum sued WRGSB, the owner of the building, a nd the district court properly asserted jurisdiction o ver the matter pursuant to 28 U.S.C. S 1332. Kirschbaum all eged that he tripped on a step (also known as a "riser") that was 5/8 of an inch taller than the other steps in the s tairwell, and further stated that he was subsequently unable to

arrest his fall due to the broken handrail. As such

, Kirschbaum alleged two causes of his fall: (1) the riser height discrepancy and (2) the broken handrail.

Because WRGSB had hired Insignia to not only manage

, but also maintain and repair, the building--includi ng the

3stairwell in which Kirschbaum was injured--WRGSB

brought a third-party action against Insignia, seek ing

contribution or indemnification. The district court exercised supplemental jurisdiction over Insignia pursuant to 28

U.S.C. S 1367. WRGSB maintained that it r elied on Insignia to manage and maintain the GSB building, and that Insignia was paid handsomely to do so. WRGSB furthe r stated that it did not have any employees on site b ecause Insignia provided several on-site management and engineering personnel pursuant to the property management agreement. As a result, WRGSB maintained that Insignia ought to be solely responsible for th e injuries Kirschbaum sustained as a result of the riser heigh t discrepancy and broken handrail, both of which WRGS B believed that Insignia was responsible for corr ect ing under the property management agreement.

All of Kirschbaum's claims were settled on Septembe r 14, 1998, with WRGSB and Insignia each contributing hal f of the $1,750,000 settlement amount, but retaining the ir respective rights of indemnity and contribution. Subsequently, both parties filed motions for summar y judgment, seeking to have the other bear the full c ost of settlement. The parties based their motions for sum mary judgment on contradictory interpretations of the pr operty management agreement: WRGSB argued that, under the terms of the agreement, Insignia was wholly respons ible for maintaining the stairwell, while Insignia contended that WRGSB was required, under the agreement, to purchas e insurance and fully indemnify Insignia.

Following the motions for summary judgment, the magistrate judge assigned to the case issued a r ep ort and recommendation which concluded that both parties we re equally negligent in causing Kirschbaum's fall. In accordance with this determination, the magistrate judge recommended that the parties bear the cost of settl ement equally. The district court adopted most of the mag istrate judge's report and recommendation, but r eferred th e apportionment of liability issue back to the magist rate judge for an evidentiary hearing.

At the evidentiary hearing, WRGSB presented the testimony of various Insignia employees. This testi mony

4was somewhat cumulative and can be summed up as

generally showing that the employees believed Insig nia's job was to repair and maintain the GSB Building. In add ition to this testimony, Dan Grinnan, Insignia's chief en gineer at the GSB building, testified that he attempted to r e-weld the broken brackets holding the handrail to the wall be fore Kirschbaum's accident, knew those repairs had faile d and

was aware that the handrail was still br oken on th e day of the accident. Nonetheless, Grinnan never notified W RGSB or Kirschbaum that the handrail was broken. Insigni a countered by calling Charles Goedken, a civil engin eer, as its expert witness. He testified that ther e was a 5/8 inch discrepancy in one of the stairway's risers, that s uch a discrepancy did not conform to generally accepted engineering standards and that such a discr epancy created a foreseeable risk of falling.

Following the hearing, the magistrate judge again f ound that WRGSB and Insignia were equally liable for the settlement cost. The magistrate judge held that WRG SB had a duty to discover and remedy the riser height discrepancy, and that Insignia had a separate duty to repair the broken handrail. Accordingly, the magist rate judge ordered them each to pay one half of the sett lement amount. WRGSB appeals, and Insignia cross-appeals. We have jurisdiction under 28 U.S.C. SS 636(c)(3) & 12 91.

II. DISCUSSION

Not surprisingly, WRGSB believes that Insignia is s olely responsible for Kirschbaum's injuries because the p roperty management agreement required Insignia to take responsibility for the physical condition of all as pects of the staircase, including the handrail and the stair ris ers. Insignia cross-appeals, arguing that WRGSB should p ay the entire settlement amount because: (1) the agr eemen t required WRGSB to provide primary insurance coverag e for Insignia; (2) WRGSB should not have been able to se ek contribution or indemnity from Insignia withoutfirs t establishing that WRGSB was liable to Kirschbaum fo r his injuries; and (3) Kirschbaum assumed the risk of in jury presented by the handrail.

5Because this is a diversity case, we must first det ermine

the substantive state law that is to govern our dec ision. In making this determination, we first look to the con flict of laws rules of the forum state, Pennsylvania. See Assicurazioni Generali, S.P.A. v. Clover, 195 F.3d 161, 165 (3d. Cir. 1999). For substantive tort law issues, Pennsylvania uses a combination of the "gover nment interest" and "significant relationship" approaches to conflict of laws analysis. Under this analysis,"a c ourt must evaluate `the extent to which one state rather than another has demonstrated, by reason of its policies and the ir connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.' " See Troxel v. A.I. duPont Inst., 636 A.2d 1179, 1181 (P a. Super. Ct. 1994). Neither party disputes that Pennsylvania law applies to the tort aspects of this case, and our r eview of the facts confirms that the parties ar e correct: t his case involves an accident in Pennsylvania on a stairwell that is subject to Pennsylvania building codes and r egulat ions. As such, Pennsylvania has a priority interest in the a pplication of its tort law to this cause. However, because the property management agreement so specifies, see Agmt. at S 7.3, Illinois' substantive law of contracts applies to interpretation of the agreement. See Kruzits v. Oku ma Mach. Tool, Inc., 40 F.3d 52, 55 (3d Cir. 1994) (Pennsylvania law generally respects parties' choic e of law).

A. WRGSB's Appeal

Before reaching WRGSB's main argument, we review three inadequately supported claims that WRGSB rais es in the footnotes of its opening brief. These ar gument s are: (1) that the magistrate judge erred in allowing Insigni a to call Goedken as its expert witness because "Insignia nev er identified Goedken as its expert witness as r equir ed by the Court's pre-trial rulings . . . ," see Appellant's Br. at 18 n.1; (2) that the magistrate judge erred in deter mining that WRGSB was a "possessor" of the premises at the time of the accident, see id. at 45 n.11;1 and (3) that th e magistrate

___________________________________________________ ______________

1. We recognize that WRGSB develops this argument m ore fully in its response to Insignia's cross-appeal. However, becau se the argument

could have been raised as an issue for review in WR GSB's opening brief

6judge erred in concluding that the riser height dis crepancy

constituted a structural defect instead of being a consequence of normal wear and tear, see id. at 47 n.13. WRGSB has not presented any of these holdings as a basis for its appeal, and WRGSB does not mention these arguments in its statement of the issues for r evie w, as required by Rule 28(a)(5) of the Federal Rules of A ppellate Procedure. See Appellant's Br. at 3-4. We therefore will not reach any of these arguments. See T ravitz v. North east Department ILGWU Health and Welfare Fund, 13 F.3d 7 04, 711 (3d Cir. 1994). But, even if we wer e to reach WRGSB's arguments, we could not decide them on their merits since they are poorly briefed and deserve mor e developme nt than passing mention in a footnote for us take them seri ously. As a result, we will not examine whether the magist rate judge erred in allowing Insignia to call Goedken as its expert witness. Further, we accept the magistrate j udge's finding that WRGSB "possessed" the building at the time of the accident and that the riser height discr epancy

constituted a structural defect.

WRGSB's remaining arguments can all be r educed to one claim: that Insignia should be responsible for the entire settlement amount because the property management agreement obligated Insignia to discover and correc t defects in both the stair risers and the handrail. Both par ties agree that Insignia was solely responsible for r epairing the defective handrail.2 Ther efore, our discussion foc uses

___________________________________________________ ______________

--which would have required that WRGSB include the issue in its statement of issues for review and fully develop an argument in the argument portion of its brief--we will not address it. See FDIC v. Deglau, 207 F.3d 153, 169 (3d Cir. 2000) (issues not raised in opening brief on appeal are waived). However, even if we were to ent ertain WRGSB's appeal of the magistrate's factual determination, w e would do so under a clearly erroneous standard of review. See A&H Spo rtswear, Inc. v. Victoria's Secret Stores, Inc., 166 F.3d 197, 201-0 2 (3d Cir. 1999). And, contrary to WRGSB's contention, we have found nothi ng in the record to indicate that the magistrate committed clear err or in determining that WRGSB was a "possessor" of the stairwell in which K irchbaum was injured at the time of the accident.

2. Insignia stipulated to its responsibility for ma intaining and repairing the handrail in the district court, see Kirschbaum v. WRGSB Associates,

7primarily on which party must accept responsibility for the

injuries arising out of the riser height discr epan cy.

As owner of the GSB building, WRGSB is charged with the following duty:

A possessor of land is subject to liability for physical harm caused to his invitees3 by a condition on the land if, but only if, he:

(a) knows or by the exercise of reasonable c are would discover the condition and should real ize

that it involves an unreasonable risk of har m to such invitees, and

(b) should expect that they will not discove r or realize the danger, or will fail to pr otect themselves against it, and

(c) fails to exercise reasonable car e to pr otect them against the danger.

Restatement (Second) of Torts S 343 (adopted by the Pennsylvania Supreme Court in Carrender v. Fitterer , 469 A.2d 120, 123 (1983)) (footnote added). Thus, WRGSB is obligated to discover and repair the riser height d iscrepancy that caused Kirschbaum's fall if, by the exer cise of reasonable care, WRGSB is capable of discovering th e defect, and WRGSB should expect that Kirschbaum wou ld

not discover the defect himself.

The magistrate judge determined that WRGSB met thes e requirements, and WRGSB does not dispute this findi ng except to argue that the riser height discr epancy is a trivial defect--an argument that is related to WRGSB's abil ity to discover the riser height discrepancy. In support, WRGSB cites several older Pennsylvania cases where approx imately

___________________________________________________ ______________

No. 97-5532, slip op. at 10, P 36 (E.D. Pa.filed De c. 14, 1999), and admits in its reply brief that it "has long since a ccepted responsibility" for this liability. Appellee's Br. at 25. As discus sed below, however, Insignia does not believe that it ought to pay for any liability arising

out of its failure to repair the handrail because it be lieves that, under the agreement, WRGSB's insurance should cover the liabi lity.

3. The parties do not dispute that Kirschbaum was a n invitee on WRGSB's premises.

81.5 inch sidewalk and roadway discrepancies were fo und to

be trivial. See, e.g., Bosack v. Pittsburgh Railway s Co., 189 A.2d 877 (Pa. 1962); German v. City of Mckeesport, 8 A.2d 437 (Pa. Super. 1939). While the riser defect here was only 5/8 inch, it occurred on a stair riser, a place whe re the defect is likely to be far less obvious than on afl at surface such as a road (and thus more difficult to protect against). Relatedly, discrepancies of this kind ar e far more common (and therefore foreseeable) on a sidewalk than on a flight of stairs. Indeed, Insignia's expert witness--whom the district court found more credible than WRGSB's expert witne ss-- testified that a 5/8 inch discrepancy cr eated a fo reseeable risk of falling. As such, the district court did no t err in determining that WRGSB was requir ed to discover an d remedy the riser height discrepancy.

While WRGSB is thus charged with the duty to discov er and repair the riser height discrepancy, WRGSB argu es that its relationship to Insignia is such that Insi gnia is primarily liable to Kirschbaum for the injury he su f fered as a result of the riser height discrepancy. As a resu lt, WRGSB

believes that it is entitled to indemnification fr om Insignia, a right that "enures to a person who, without activ e fault on his own part, has been compelled, by reason of s ome legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable." Builders Supply Co. v. McCabe, 77 A.2d 368, 370 (Pa. 1951). WRGSB maintains that it is onl y secondarily liable--and Insignia primarily liable-- for the damage to Kirschbaum because the agreement between itself and Insignia obligated Insignia to corr ect not just the broken handrail, but the riser height discr epancy as well.

Accordingly, we must look to the agreement between WRGSB and Insignia in order to determine which part y assumed the primary obligation for discovering and correcting the riser height discrepancy. As noted, we interpret the contract in accordance with standards dictated by Illinois law. Under Illinois law, a con tract's express provisions govern when the contract is unambiguous. See Wright v. Chicago T itle Ins. Co., 554 N.E.2d 511 (Ill. App. Ct. 1990). If a contract's la nguage cannot be interpreted in more than one way, "[a] co urt

9must construe the meaning of [the] contract by look ing at

words used and cannot interpret the contract in a w ay contrary to the plain and obvious meaning of these words." J.M. Beals Enterprises, Inc. v. Industrial Har d Ch rome, Ltd., 551 N.E.2d 340, 342 (1990). "Unless the contract cl early specifies its own meanings, the court must interpr et the words or language of the contract with their common and generally accepted meanings." Id. at 342-43. Furthe r, "the court must place the meanings of words within the c ontext

of the contract as a whole." Id. at 343.

On appeal, WRGSB bases its argument primarily on S 2.4 of the agreement, which reads in r elevant part:

[Insignia] shall . . . maintain the building s, appurtenances and common areas of the [GSB Building] in good condition according to loc al standards for comparable properties in the i mmediate market area surrounding the Property, and, i n any event, in accordance with the standards and conditions specified by [WRGSB Associates] from time to time. Maintenance and repair items shall include, but shall not be limited to, interior and exterior jan itorial services, exterior grounds and landscaping s ervices, repairs and alterations to existing impr ove ments, plumbing, parking areas, electrical systems[ ,] painting, carpentry, maintenance and repair of mechani cal systems and such other maintenance and r epa ir work as is reasonably necessary.

Appx. at 233 (emphasis added). WRGSB also cites two other sections of the agreement as evidence of Insi gnia's alleged obligation to correct the riser height disc repancy. Section 2.9 of the agreement states that Insignia m ust use due care in the selection and supervision of its on -site personnel. See Appx. at 237. In addition,S 2.13 of the agreement requires Insignia to use its best efforts to ensure that the GSB Building is kept in compliance with ap plicable building codes. See Appx. at 240. WRGSB ar gues tha t these contract provisions clearly transfer to Insignia th e building owner's duty to discover and remedy all hazar dous conditions on the premises.

As an initial matter, WRGSB's reliance on sections 2.9 (requiring due care in the selection of on-site per sonnel)

10and 2.13 (requiring compliance with applicable laws and

building codes) is misplaced. WRGSB has simply fail ed to produce any evidence that Kirschbaum's accident is due to Insignia's negligently hiring on-site personnel. Ne ither has

WRGSB shown that Kirschbaum's accident resulted fro m Insignia's failure to maintain the GSB building in accordance with applicable building codes. Conseque ntly, neither S 2.9 nor S 2.13 of the agr eement aids WRG SB's argument.

We also disagree with WRGSB's reliance on S 2.4 of the agreement, for WRGSB appears to confuse Insignia's obligation to maintain and repair the building with an obligation to discover structural defects, such as the riser height discrepancy. That the agreement does not req uire Insignia to discover latent structural defects is a pparent from the language of S 2.4, which r epeatedly empha sizes Insignia's duty to undertake "maintenance" and"repa irs." The two bases of liability at issue in this case--t he defective handrail and the riser height discrepancy--pr ovide a perfect example of how "maintenance" and "r epairs" should be interpreted: fixing a defective handrail is clearly an act of maintenance and repair, while discovering and mendi ng a riser that has likely been defective since the buil ding was

constructed is not.

That maintenance and repairs do not include the obligation to discover latent structural defects is also supported by the meaning commonly ascribed to these words. "Maintenance" is defined by Webster's New Wo rld Dictionary 854 (2d College Ed. 1979), to include"th e work of keeping a building . . . in a state of good r ep air." "Repair" is defined as "to put back in good condition after damage, decay, etc." Id. at 1204. These definitions both po int to the act of fixing a deteriorated part of the building, which though originally sound, has fallen into disr epair . The definitions do not contemplate fixing a part of the building that was originally defective. Indeed, a finding th at the agreement required Insignia to discover the riser h eight discrepancy would necessarily include a finding tha t Insignia is not only responsible for measuring ever y stair riser in the GSB building, but also responsible for other acts that are clearly not contemplated by the agree ment,

11such as inspecting the building's foundation. W e t herefore

conclude that the agreement failed to delegate unambiguously the duty to discover the riser height discrepancy to Insignia.

WRGSB's confusion regarding the dif ference between ordinary maintenance and repair and thefixing of la tent structural defects extends to WRGSB's argument that the magistrate judge failed to apply the law of the cas e when apportioning liability between the two parties. In its June 28, 1999 Memorandum and Order, the district court s tated that Insignia was obligated under its agreement wit h WRGSB to maintain the stairway and handrails. WRGSB argues that the magistrate judge failed to adhere t o this

determination because he found that WRGSB was responsible for discovering the riser height discre pancy. As is apparent from our discussion, however , the dist rict court's finding that Insignia was responsible for maintaining the stairway in no way contradicts the magistrate judge's finding that WRGSB was r esponsi ble for discovering the riser height defect.

WRGSB's argument that it cannot be held to a greate r duty of care than Insignia fails for the same r eas on. The Restatement (Second) of Torts S 324A (adopted by th e Pennsylvania Supreme Court in Cantwell v. Allegheny County, 483 A.2d 1350 (Pa. 1984)) imposes a duty of reasonable care on parties (like Insignia) who rend er services for the protection of a third party (like Kirschbaum). From this, WRGSB argues that any duty of reasonable care it possessed by virtue of Restateme nt (Second) of Torts S 322 was delegated to Insignia b y the agreement because Insignia assumed a duty of r easo nable care under Restatement (Second) of T orts S 324A wh en it entered into the Agreement. WRGSB might have a vali d argument had it delegated its duty to discover the riser height discrepancy to Insignia. However , WRGSB did not do so. Consequently, it retained the duty to inspect f or and discover the riser height discrepancy and cannot sh ift liability for its failure to do so to Insignia.

In an attempt to revise the agreement's unambiguous terms, WRGSB seeks to have us recognize the testimo ny of Insignia's on-site property manager, on-site chief engineer

12and on-site engineer. WRGSB believes that this test imony

will shed new light on what the parties truly inten ded when they entered into the agreement. However , under Il linois law, extrinsic evidence--such as oral testimony--is not permitted as a means of clarifying an unambiguous contract. See Air Safety, Inc. v. Teachers Realty C orp., 706 N.E.2d 882, 884 (Ill. 1999). Because much of WRGSB' s proffered testimony derives fr om depositions that are such extrinsic evidence, we will not consider this testi mony.

However, even if we were to consider all of the tes timony, it would do little to aid WRGSB's argument. Each of Insignia's employees stated only that Insignia was responsible for the inspection, maintenance and rep air of the stairway. The testimony of Kelly Buechler , a s enior legal assistant and assistant secretary at Insignia, as w ell as Insignia's Federal Rule of Civil Procedur e 30(b)(6 ) designee,

is illustrative. She testified as follows:

Q: As part of the Property Management Agr ee ment what is it that Insignia Commercial Group provided with regard to the GSB Building wha t did they do?

A: They maintained, leased, and managed the property on behalf of the owner.

* * *

Q: As part of the Insignia Commercial Gr oup 's management agreement with WRGSB Associates was Insignia Commercial Group responsible fo r maintaining the stairways inside the GSB Building?

A: Yes.

* * *

Q: [The Property Management Agreement] oblig ated Insignia Commercial Group to maintain the GS B Building?

A: Yes.

* * *

13Q: Such maintenance would have involved r ep airing

any condition found of the stairwell or hand rail leading from the underground parking garage to the GSB Building . . .?

A: Yes.

Appx. 651-52, 658-60. Just as with the agreement's express language, this testimony does not establish that Insignia was responsible for anything other than maintenance and repair. And as we have discussed, t he duty to detect and correct latent structural defect s does not follow from the duty to maintain and repair. As suc h, the testimony of Insignia's employees does not show tha t Insignia assumed WRGSB's common law responsibility to inspect for and detect latent structural defects.

B. Insignia's Cross-Appeal

Having disposed of WRGSB's direct appeal, we turn n ext to Insignia's cross-appeal. Even though Insignia ha s admitted its responsibility for maintaining the han drail, it presents three unavailing arguments in hope of shif ting the entire cost of settlement to WRGSB: (1) that, pursu ant to the agreement, WRGSB's insurance policy covers Insi gnia as well; (2) that WRGSB has failed to prove facts t hat are necessary to establish its right to contribution an d indemnity from Insignia; and (3) that Kirschbaum as sumed the risk presented by the broken handrail.

1. The Agreement's Insurance Pr ovisions

Insignia argues that it should not have to pay its share of the settlement because the agreement r equired W RGSB to purchase general liability insurance and to name Insignia as an additional insured on the policy. Th e provision on which Insignia relies states:

Owner shall carry, at its own expense, comme r cial general liability insurance in such amounts that owner, in its sole and absolute discretion, deems n ecessary for the protection of owner's interest in the Pr operty, and such insurance shall be deemed the primary i nsurance on the Property. Policies of commercial gene ral liability insurance carried by owner shall include man ager . ..

14as an additional insured party only in manag er's

capacity as manager of the property.

See Appx. 244; Agmt. S 5.1. Insignia argues that th e clear meaning of this requirement is that WRGSB's insuran ce should cover Insignia. However, in reaching its con clusion Insignia ignores S 5.8 of the agr eement, which sta tes that Insignia has no right to recover against WRGSB or i ts insurance carrier on any claim to the extent that t he claim arises out of Insignia's own negligence. See Appx. at 246. As noted, Insignia has already admitted liability f or the handrail--a liability that clearly arises out of In signia's own negligence in failing to properly secur e the handr ail. Therefore, the language of the agr eement makes cle ar that WRGSB's insurance does not cover Insignia for its o wn negligent failure to repair the br oken handrail.

2. WRGSB's Liability to Kirschbaum

Insignia next argues that WRGSB cannot now seek contribution or indemnity from Insignia because WRG SB did not prove its own liability to Kirschbaum. Cont ribution applies when a plaintiff and defendant ar e joint t ortfeasors. See Builders Supply Co. v. McCabe, 77 A.2d 368, 370 (Pa. 1951). Contribution comes into force when one joint tortfeasor has discharged a common liability or pai d more than its share of such liability, in which case the joint

tortfeasor is entitled to reimbursement fr om the o ther tortfeasors to the extent that its payment exceeded its own liability. Conversely, the right of indemnification arises when there is a "difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party." Id. In such a case, the party that is secondarily liable may seek complete reimbursement from the party that is primarily liab le for any damages the first-mentioned party has paid.

A party pursuing claims for contribution and indemn ity can do so only if it has established that it was it self liable to the plaintiff for the plaintiff 's injury. See 4 2 Pa. C.S.A. S 8324(a) (West 1998) (contribution only available among joint tortfeasors); 42 Pa. C.S.A. S 8322 (W est 199 8) (joint tortfeasor is, in part, one who is liable to plaint iff); Builders Supply Co. v. McCabe, 77 A.2d 368, 370 (Pa. 1951)

15(indemnity may be pursued by a "person who without

actual fault on his own has been compelled by r eas on of some legal obligation to pay damages . . . ."). Ins ignia argues that WRGSB has not established its own liabi lity to Kirschbaum, and that WRGSB may thus not seek contribution or indemnity from Insignia. However, w hile we think it likely that WRGSB was legally liable to Ki rschbaum --as we have noted, WRGSB is primarily liable for i ts failure to correct the riser height discr epancy an d secondarily liable for Insignia's failure to r epai r the handrail --WRGSB need not prove this here. As determined abo ve, both parties are equally liable to Kirschbaum, but on their own, distinct grounds: WRGSB's liability arises out of its failure to correct the riser height discr epancy an d Insignia's liability arises out of its failure to r epair the handrail. The parties are thus required to pay equal shares of th e settlement, representing their equal, but distinct, bases of liability to Kirschbaum. Therefore, Insignia is not entitled to contribution or indemnity from WRGSB. Insignia's argument that WRGSB must prove its liability to Kirschbaum thus misses the point and does nothing t o alter the parties' obligation to each pay half of t he

settlement.

3. Kirschbaum's Assumption of Risk

Insignia lastly argues that it cannot be liable for its failure to repair the handrail because Kirschbaum w as aware of the broken handrail and assumed the risk o f any injury resulting from it. Under Pennsylvania law, assumption of risk is established by showing that t he injured party fully appreciated the natur e of the risk it faced and voluntarily assumed it. See Bar nes v. Am erican Tobacco Co., 161 F.2d 127, 149 (3d Cir. 1998). In a ddition, the injured party must not have had a meaningful an d reasonable alternative path to avoid the risk. See Kaplan v. Exxon Corp., 126 F.3d 221, 226 (3d Cir . 1997). Whe ther a party assumed a risk is a question of fact that is r eviewed for clear error. See Kaplan, 126 F.3d at 225 (assum ption of risk generally a question of fact); A&H Sportswear, Inc. v. Victoria's Secret Stores, Inc. , 166 F.3d 197, 201- 02 (3d Cir. 1999) (questions of fact reviewed for clear err or)

.

16Insignia argues that Kirschbaum assumed the risk of

injury resulting from his fall because he was aware of the broken handrail and had used the stairwell for year s in spite of it. We believe, however, that the magistra te judge correctly concluded that Kirschbaum did not fully appreciate the extent of the risk he faced. It is t rue that Kirschbaum was aware of the broken handrail, and th us knew that it would not aid him were he to trip whil e on the stairs. However, the risk presented by the broken h andrail includes not just an appreciation of the har m like ly to result were Kirschbaum ever to need the handrail, b ut also an appreciation of the likelihood that Kirschbaum w ould in fact have to rely on the handrail to br eak a fall. This latter component of the handrail's risk was not appr eciat ed by Kirschbaum: he knew that he might accidently trip w hen climbing the stairs, but was completely unawar e of the riser height discrepancy, which increased the likelihood of a fall and thus the likelihood that he would need to r ely on the

handrail.

Kirschbaum also failed to assume the risk arising o ut of

his use of the stairs because he did not have a r e asonable

alternative route. While Kirschbaum could have ente red the building from one other entrance, this entrance--li ke the entrance used by Kirschbaum--was locked when Kirschbaum arrived in the morning. An Insignia empl oyee provided Kirschbaum with the stairwell key and dire cted him to use the stairwell. As such, the stairwell wa s usually the only way for Kirschbaum to enter the building b ecause he arrived at work before other building entrances opened. Consequently, Kirschbaum had no other reasonable ro ute into the building, and he did not assume the risk p r esented by the broken handrail.

III. CONCLUSION

For the foregoing reasons, the decision of the dist rict

court is Affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17