2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-9-2001

Kirschbaum v. WRGSB Assoc

Precedential or Non-Precedential:

Docket 00-1017

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Kirschbaum v. WRGSB Assoc" (2001). 2001 Decisions. Paper 44.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/44
Filed 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 Bala 

Cynwyd, Pennsylvania. Kirschbaum sustained serious 

injuries as a result of the fall and, seeking compensation 

for these injuries, sued the building's owner , WRGSB 

Associates (WRGSB). In turn, WRGSB filed a third-party 

complaint against Insignia Commercial Gr oup (Insignia), 

the building manager with whom WRGSB had contracted to 

manage, maintain and repair the building. Both parties 

settled with Kirschbaum, but retained their r espective 

rights of contribution and indemnity. The United States 

District Court for the Eastern District of Pennsylvania 

apportioned liability equally between the two parties and 

required each party to pay half of the settlement amount. 

The parties appeal, each seeking to have the other bear the 

full cost of settlement. We affirm. 

 2 
I. 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 arriving 

at the building's parking garage before 7:00 a.m., when the 

building opened. Because the building was still closed 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 manager. 

This flight consisted of 15 steps, and it was walled on both 

sides. A wall-mounted handrail ran up one of these walls, 

but, at the bottom of the stairwell, the handrail had become 

detached from the wall and was resting on the stairs. While 

Kirschbaum was aware of the broken handrail (it had been 

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

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 the lower 

parking garage. As he was climbing the stairs leading to the 

building, Kirschbaum stumbled while attempting to place 

his foot on the fifth step. Because the stairway's handrail 

was broken and resting on the stairs at the fifth step, 

Kirschbaum was unable to catch himself, and he fell to the 

bottom of the stairs. As a result of the fall, Kirschbaum 

suffered not only from fractur ed bones, but also from a 

chronic infection of the right leg which may r equire 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, and 

the district court properly asserted jurisdiction over the 

matter pursuant to 28 U.S.C. S 1332. Kirschbaum alleged 

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 stairwell, 

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--including the 

 3 
stairwell in which Kirschbaum was injured--WRGSB 

brought a third-party action against Insignia, seeking 

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 further 

stated that it did not have any employees on site because 

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 the injuries 

Kirschbaum sustained as a result of the riser height 

discrepancy and broken handrail, both of which WRGSB 

believed that Insignia was responsible for corr ecting under 

the property management agreement. 

All of Kirschbaum's claims were settled on September 14, 

1998, with WRGSB and Insignia each contributing half of 

the $1,750,000 settlement amount, but retaining their 

respective rights of indemnity and contribution. 

Subsequently, both parties filed motions for summary 

judgment, seeking to have the other bear the full cost of 

settlement. The parties based their motions for summary 

judgment on contradictory interpretations of the property 

management agreement: WRGSB argued that, under the 

terms of the agreement, Insignia was wholly responsible for 

maintaining the stairwell, while Insignia contended that 

WRGSB was required, under the agreement, to purchase 

insurance and fully indemnify Insignia. 

Following the motions for summary judgment, the 

magistrate judge assigned to the case issued a r eport and 

recommendation which concluded that both parties were 

equally negligent in causing Kirschbaum's fall. In 

accordance with this determination, the magistrate judge 

recommended that the parties bear the cost of settlement 

equally. The district court adopted most of the magistrate 

judge's report and recommendation, but r eferred the 

apportionment of liability issue back to the magistrate 

judge for an evidentiary hearing. 

At the evidentiary hearing, WRGSB presented the 

testimony of various Insignia employees. This testimony 

 4 
was somewhat cumulative and can be summed up as 

generally showing that the employees believed Insignia's job 

was to repair and maintain the GSB Building. In addition 

to this testimony, Dan Grinnan, Insignia's chief engineer at 

the GSB building, testified that he attempted to r e-weld the 

broken brackets holding the handrail to the wall before 

Kirschbaum's accident, knew those repairs had failed and 

was aware that the handrail was still br oken on the day of 

the accident. Nonetheless, Grinnan never notified WRGSB 

or Kirschbaum that the handrail was broken. Insignia 

countered by calling Charles Goedken, a civil engineer, as 

its expert witness. He testified that ther e was a 5/8 inch 

discrepancy in one of the stairway's risers, that such 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 found 

that WRGSB and Insignia were equally liable for the

settlement cost. The magistrate judge held that WRGSB 

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 magistrate 

judge ordered them each to pay one half of the settlement 

amount. WRGSB appeals, and Insignia cross-appeals. We 

have jurisdiction under 28 U.S.C. SS 636(c)(3) & 1291. 

II. DISCUSSION 

Not surprisingly, WRGSB believes that Insignia is solely 

responsible for Kirschbaum's injuries because the property 

management agreement required Insignia to take 

responsibility for the physical condition of all aspects of the 

staircase, including the handrail and the stair risers. 

Insignia cross-appeals, arguing that WRGSB should pay the 

entire settlement amount because: (1) the agr eement 

required WRGSB to provide primary insurance coverage for 

Insignia; (2) WRGSB should not have been able to seek 

contribution or indemnity from Insignia withoutfirst 

establishing that WRGSB was liable to Kirschbaum for his 

injuries; and (3) Kirschbaum assumed the risk of injury 

presented by the handrail. 

 5 
Because this is a diversity case, we must first determine 

the substantive state law that is to govern our decision. In 

making this determination, we first look to the conflict 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 court must 

evaluate `the extent to which one state rather than another 

has demonstrated, by reason of its policies and their 

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 (Pa. 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: this case 

involves an accident in Pennsylvania on a stairwell that is 

subject to Pennsylvania building codes and r egulations. As 

such, Pennsylvania has a priority interest in the application 

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. Okuma 

Mach. Tool, Inc., 40 F.3d 52, 55 (3d Cir. 1994) 

(Pennsylvania law generally respects parties' choice of law). 

A. WRGSB's Appeal 

Before reaching WRGSB's main argument, we review 

three inadequately supported claims that WRGSB raises in 

the footnotes of its opening brief. These ar guments are: (1) 

that the magistrate judge erred in allowing Insignia to call 

Goedken as its expert witness because "Insignia never 

identified Goedken as its expert witness as r equired 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 the magistrate 

_________________________________________________________________ 

1. We recognize that WRGSB develops this argument more fully in its 

response to Insignia's cross-appeal. However, because the argument 

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

 6 
judge erred in concluding that the riser height discrepancy 

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 eview, as 

required by Rule 28(a)(5) of the Federal Rules of Appellate 

Procedure. See Appellant's Br. at 3-4. We therefore will not 

reach any of these arguments. See T ravitz v. Northeast 

Department ILGWU Health and Welfare Fund, 13 F.3d 704, 

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 development than 

passing mention in a footnote for us take them seriously. 

As a result, we will not examine whether the magistrate 

judge erred in allowing Insignia to call Goedken as its 

expert witness. Further, we accept the magistrate judge'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 correct defects 

in both the stair risers and the handrail. Both parties agree 

that Insignia was solely responsible for r epairing the 

defective handrail.2 Ther efore, our discussion focuses 

_________________________________________________________________ 

--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 entertain WRGSB's 

appeal of the magistrate's factual determination, we would do so under 

a clearly erroneous standard of review. See A&H Sportswear, Inc. v. 

Victoria's Secret Stores, Inc., 166 F.3d 197, 201-02 (3d Cir. 1999). And, 

contrary to WRGSB's contention, we have found nothing in the record to 

indicate that the magistrate committed clear err or in determining that 

WRGSB was a "possessor" of the stairwell in which Kirchbaum was 

injured at the time of the accident. 

2. Insignia stipulated to its responsibility for maintaining and repairing 

the handrail in the district court, see Kirschbaum v. WRGSB Associates, 

 7 
primarily on which party must accept responsibility for the 

injuries arising out of the riser height discr epancy. 

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 care 

 would discover the condition and should realize 

 that it involves an unreasonable risk of har m to 

 such invitees, and 

 (b) should expect that they will not discover or 

 realize the danger, or will fail to pr otect

 themselves against it, and 

 (c) fails to exercise reasonable car e to protect 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 discrepancy 

that caused Kirschbaum's fall if, by the exer cise of 

reasonable care, WRGSB is capable of discovering the 

defect, and WRGSB should expect that Kirschbaum would 

not discover the defect himself. 

The magistrate judge determined that WRGSB met these 

requirements, and WRGSB does not dispute this finding 

except to argue that the riser height discr epancy is a trivial 

defect--an argument that is related to WRGSB's ability to 

discover the riser height discrepancy. In support, WRGSB 

cites several older Pennsylvania cases where approximately 

_________________________________________________________________ 

No. 97-5532, slip op. at 10, P 36 (E.D. Pa.filed Dec. 14, 1999), and 

admits in its reply brief that it "has long since accepted responsibility" 

for this liability. Appellee's Br. at 25. As discussed 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 believes that, under the 

agreement, WRGSB's insurance should cover the liability. 

3. The parties do not dispute that Kirschbaum was an invitee on 

WRGSB's premises. 

 8 
1.5 inch sidewalk and roadway discrepancies were found to 

be trivial. See, e.g., Bosack v. Pittsburgh Railways 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 where the 

defect is likely to be far less obvious than on aflat 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 witness-- 

testified that a 5/8 inch discrepancy cr eated a foreseeable 

risk of falling. As such, the district court did not err in 

determining that WRGSB was requir ed to discover and 

remedy the riser height discrepancy. 

While WRGSB is thus charged with the duty to discover 

and repair the riser height discrepancy, WRGSB argues 

that its relationship to Insignia is such that Insignia is 

primarily liable to Kirschbaum for the injury he suf fered as 

a result of the riser height discrepancy. As a result, WRGSB 

believes that it is entitled to indemnification fr om Insignia, 

a right that "enures to a person who, without active fault 

on his own part, has been compelled, by reason of some 

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 only 

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 party 

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 contract'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 language 

cannot be interpreted in more than one way, "[a] court 

 9 
must construe the meaning of [the] contract by looking at 

words used and cannot interpret the contract in a way 

contrary to the plain and obvious meaning of these words." 

J.M. Beals Enterprises, Inc. v. Industrial Har d Chrome, Ltd., 

551 N.E.2d 340, 342 (1990). "Unless the contract clearly 

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. Further, "the 

court must place the meanings of words within the context 

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 buildings, 

 appurtenances and common areas of the [GSB 

 Building] in good condition according to local 

 standards for comparable properties in the immediate 

 market area surrounding the Property, and, in 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 janitorial 

 services, exterior grounds and landscaping services, 

 repairs and alterations to existing impr ovements, 

 plumbing, parking areas, electrical systems[,] painting, 

 carpentry, maintenance and repair of mechanical 

 systems and such other maintenance and r epair work 

 as is reasonably necessary. 

Appx. at 233 (emphasis added). WRGSB also cites two

other sections of the agreement as evidence of Insignia's 

alleged obligation to correct the riser height discrepancy. 

Section 2.9 of the agreement states that Insignia must 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 applicable 

building codes. See Appx. at 240. WRGSB ar gues that these 

contract provisions clearly transfer to Insignia the 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 personnel) 

 10 
and 2.13 (requiring compliance with applicable laws and 

building codes) is misplaced. WRGSB has simply failed to 

produce any evidence that Kirschbaum's accident is due to 

Insignia's negligently hiring on-site personnel. Neither has 

WRGSB shown that Kirschbaum's accident resulted from 

Insignia's failure to maintain the GSB building in 

accordance with applicable building codes. Consequently, 

neither S 2.9 nor S 2.13 of the agr eement aids WRGSB'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 require 

Insignia to discover latent structural defects is apparent 

from the language of S 2.4, which r epeatedly emphasizes 

Insignia's duty to undertake "maintenance" and"repairs." 

The two bases of liability at issue in this case--the 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 mending a 

riser that has likely been defective since the building 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 World 

Dictionary 854 (2d College Ed. 1979), to include"the work 

of keeping a building . . . in a state of good r epair." "Repair" 

is defined as "to put back in good condition after damage, 

decay, etc." Id. at 1204. These definitions both point 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 that the 

agreement required Insignia to discover the riser height 

discrepancy would necessarily include a finding that 

Insignia is not only responsible for measuring every stair 

riser in the GSB building, but also responsible for other 

acts that are clearly not contemplated by the agreement, 

 11 
such as inspecting the building's foundation. W e therefore 

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 latent 

structural defects extends to WRGSB's argument that the 

magistrate judge failed to apply the law of the case when 

apportioning liability between the two parties. In its June 

28, 1999 Memorandum and Order, the district court stated 

that Insignia was obligated under its agreement with 

WRGSB to maintain the stairway and handrails. WRGSB

argues that the magistrate judge failed to adhere to this 

determination because he found that WRGSB was 

responsible for discovering the riser height discrepancy. As 

is apparent from our discussion, however , the district 

court's finding that Insignia was responsible for 

maintaining the stairway in no way contradicts the 

magistrate judge's finding that WRGSB was r esponsible for 

discovering the riser height defect. 

WRGSB's argument that it cannot be held to a greater 

duty of care than Insignia fails for the same r eason. The 

Restatement (Second) of Torts S 324A (adopted by the 

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 render 

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 Restatement 

(Second) of Torts S 322 was delegated to Insignia by the 

agreement because Insignia assumed a duty of r easonable 

care under Restatement (Second) of T orts S 324A when it 

entered into the Agreement. WRGSB might have a valid 

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 for and 

discover the riser height discrepancy and cannot shift 

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 testimony of 

Insignia's on-site property manager, on-site chief engineer 

 12 
and on-site engineer. WRGSB believes that this testimony 

will shed new light on what the parties truly intended when 

they entered into the agreement. However , under Illinois 

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 Corp., 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 testimony. 

However, even if we were to consider all of the testimony, 

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 repair of 

the stairway. The testimony of Kelly Buechler , a senior legal 

assistant and assistant secretary at Insignia, as well 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 eement 

 what is it that Insignia Commercial Group 

 provided with regard to the GSB Building what 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 for 

 maintaining the stairways inside the GSB 

 Building? 

 A: Yes. 

 * * * 

 Q: [The Property Management Agreement] obligated 

 Insignia Commercial Group to maintain the GSB 

 Building? 

 A: Yes. 

 * * * 

 13 
 Q: Such maintenance would have involved r epairing 

 any condition found of the stairwell or handrail 

 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, the 

duty to detect and correct latent structural defects does not 

follow from the duty to maintain and repair. As such, the 

testimony of Insignia's employees does not show that 

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 next 

to Insignia's cross-appeal. Even though Insignia has 

admitted its responsibility for maintaining the handrail, it 

presents three unavailing arguments in hope of shifting the 

entire cost of settlement to WRGSB: (1) that, pursuant to 

the agreement, WRGSB's insurance policy covers Insignia 

as well; (2) that WRGSB has failed to prove facts that are 

necessary to establish its right to contribution and 

indemnity from Insignia; and (3) that Kirschbaum assumed 

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 WRGSB 

to purchase general liability insurance and to name

Insignia as an additional insured on the policy. The 

provision on which Insignia relies states: 

 Owner shall carry, at its own expense, commer cial 

 general liability insurance in such amounts that owner, 

 in its sole and absolute discretion, deems necessary for 

 the protection of owner's interest in the Property, and 

 such insurance shall be deemed the primary insurance 

 on the Property. Policies of commercial general liability 

 insurance carried by owner shall include manager . .. 

 14 
 as an additional insured party only in manager's 

 capacity as manager of the property. 

See Appx. 244; Agmt. S 5.1. Insignia argues that the clear 

meaning of this requirement is that WRGSB's insurance 

should cover Insignia. However, in reaching its conclusion 

Insignia ignores S 5.8 of the agr eement, which states that 

Insignia has no right to recover against WRGSB or its 

insurance carrier on any claim to the extent that the claim 

arises out of Insignia's own negligence. See Appx. at 246. 

As noted, Insignia has already admitted liability for the 

handrail--a liability that clearly arises out of Insignia's own 

negligence in failing to properly secur e the handrail. 

Therefore, the language of the agr eement makes clear that 

WRGSB's insurance does not cover Insignia for its own 

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 WRGSB 

did not prove its own liability to Kirschbaum. Contribution 

applies when a plaintiff and defendant ar e joint tortfeasors. 

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 paid more 

than its share of such liability, in which case the joint 

tortfeasor is entitled to reimbursement fr om the other 

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 liable for 

any damages the first-mentioned party has paid. 

A party pursuing claims for contribution and indemnity 

can do so only if it has established that it was itself liable 

to the plaintiff for the plaintiff 's injury. See 42 Pa. C.S.A. 

S 8324(a) (West 1998) (contribution only available among 

joint tortfeasors); 42 Pa. C.S.A. S 8322 (W est 1998) (joint 

tortfeasor is, in part, one who is liable to plaintiff); 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 eason of 

some legal obligation to pay damages . . . ."). Insignia 

argues that WRGSB has not established its own liability to 

Kirschbaum, and that WRGSB may thus not seek 

contribution or indemnity from Insignia. However, while we 

think it likely that WRGSB was legally liable to Kirschbaum 

--as we have noted, WRGSB is primarily liable for its 

failure to correct the riser height discr epancy and 

secondarily liable for Insignia's failure to r epair the handrail 

--WRGSB need not prove this here. As determined above, 

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 and Insignia's 

liability arises out of its failure to r epair the handrail. The 

parties are thus required to pay equal shares of the 

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 to 

alter the parties' obligation to each pay half of the 

settlement. 

3. Kirschbaum's Assumption of Risk 

Insignia lastly argues that it cannot be liable for its 

failure to repair the handrail because Kirschbaum was 

aware of the broken handrail and assumed the risk of any 

injury resulting from it. Under Pennsylvania law, 

assumption of risk is established by showing that the 

injured party fully appreciated the natur e of the risk it 

faced and voluntarily assumed it. See Bar nes v. American 

Tobacco Co., 161 F.2d 127, 149 (3d Cir. 1998). In addition, 

the injured party must not have had a meaningful and 

reasonable alternative path to avoid the risk. See Kaplan v. 

Exxon Corp., 126 F.3d 221, 226 (3d Cir . 1997). Whether a 

party assumed a risk is a question of fact that is r eviewed 

for clear error. See Kaplan, 126 F.3d at 225 (assumption 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). 

 16 
Insignia 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 years in 

spite of it. We believe, however, that the magistrate judge 

correctly concluded that Kirschbaum did not fully 

appreciate the extent of the risk he faced. It is true that 

Kirschbaum was aware of the broken handrail, and thus 

knew that it would not aid him were he to trip while on the 

stairs. However, the risk presented by the broken handrail 

includes not just an appreciation of the har m likely to 

result were Kirschbaum ever to need the handrail, but also 

an appreciation of the likelihood that Kirschbaum would in 

fact have to rely on the handrail to br eak a fall. This latter 

component of the handrail's risk was not appr eciated by 

Kirschbaum: he knew that he might accidently trip when 

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 out of 

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

alternative route. While Kirschbaum could have entered the 

building from one other entrance, this entrance--like the 

entrance used by Kirschbaum--was locked when 

Kirschbaum arrived in the morning. An Insignia employee 

provided Kirschbaum with the stairwell key and directed 

him to use the stairwell. As such, the stairwell was usually 

the only way for Kirschbaum to enter the building because 

he arrived at work before other building entrances opened. 

Consequently, Kirschbaum had no other reasonable route 

into the building, and he did not assume the risk pr esented 

by the broken handrail. 

III. CONCLUSION 

For the foregoing reasons, the decision of the district 

court is Affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 17