The opinion
Dissenting Opinion by
President Judge Crumlish, Jr.
I respectfully dissent from the majority’s holding that Joner’s complaint fails to allege facts sufficient *154 to give rise to liability under common law negligence principles.
It has been held that, under the laws of this Commonwealth, liability may be imposed on a landowner if the plaintiff alleges, and at trial proves, inter alia, that the owner maintained inadequate lighting on his land and that he knew or should have known that this condition would facilitate criminal activity upon his land. Kenny v. Southeastern Pennsylvania Transportation Authority, 581 F.2d 351 (3d Cir. 1978), cert. denied, 439 U.S. 1073 (1979). These are precisely the facts alleged in Joner’s complaint. 1
While Joner was neither a business invitee nor a licensee upon the School District’s property, as was the plaintiff in Kenny , this does not preclude a cause of action. Joner was walking outside the school yard when she first encountered the grievous harm she suffered. A landowner may be held liable for physical harm to a person outside the land if the harm is caused by an artificial condition on the land, created by the owner, which he knew or should have known involved an unreasonable risk of that harm. Restatement, Second, of Torts §364 (1965). 2 Joner’s complaint alleges such a factual scenario, since she therein claims that the School District knew or should have known •that the open, unlit, unguarded condition of the school yard allowed it to be used as a haven for criminal activity directed at unwary pedestrians on the adjacent .sidewalk. 3
The facts alleged here are indistinguishable from those alleged by the plaintiff in Vann v. Board of Education of the School District of Philadelphia, 76 Pa. *155 Commonwealth Ct. 604 , 464 A.2d 684 (1983). In Vann we affirmed an order which sustained preliminary objections to the complaint, holding that the plaintiff had failed to allege a cause of action for negligence. For the reasons stated above, 'that decision should he overruled.
At the very least, this ease should go to the jury for a determination of the factual issues. I would accordingly reverse the trial court’s order granting the School District’s motion for judgment on the pleadings and remand the case to that court for further proceedings.
Judge Babby joins in this dissent.
Paragraph eight of the complaint.
An earlier, but similar, version of this section was cited by our Supreme Court in support of its holding in Boyle v. Pennsylvania Railroad Co., 346 Pa. 602 , 31 A.2d 89 (1943).
See. note 1.