A daylight accident involving an open and obvious “trivial” defect is the best that one could hope for, short of a freshly poured, pristine sidewalk, when defending the typical sidewalk claim business owners routinely face. That said, the defense of “trivial defect” often fall on deaf ears, as Pennsylvania courts have avoided drawing a bright line distinction as to when a defect is “trivial.” The argument, it seems, has been “you know it when you see it.” To this end, Pennsylvania courts have held:
What constitutes a defect sufficient to render the property owner liable must be determined in light of the circumstances of the particular case, and “except where the defect is obviously trivial, that question must be submitted to the jury.” Aloia v. City of Washington, 65 A.2d 686, 686 (Pa. 1949). “An elevation, depression or irregularity in a sidewalk [however] may be so trivial that the Court, as a matter of law, is bound to hold that there was no negligence in permitting it to exist…” Breskin v. 535 5th Avenue, 113 A.2d 316, 318 (Pa. 1955).
The courts have acknowledged that it may not be an easy task to determine whether a condition is trivial. There is a “shadow zone where such questions must be submitted to a jury whose duty it is to take into account all the circumstances. To hold otherwise would result in the court’s ultimately fixing the dividing line to the fraction of an inch, a result which is absurd. Henn v. City of Pittsburgh, 22 A.2d 742, 743 (Pa. 1941). Stated in other words, there exists no definite or mathematical rule that can be laid down as to the depth or size of a sidewalk depression necessary to convict an owner of premises negligence in permitting its continued existence. Emmey v. Stanley Co. of America, 10 A.2d 795, 797 (Pa. Super. 1940).
More recently, the Superior Court in the case of Cline v. Statler, 726 A.2d 1073 (Pa. Super 1988) distilled the various facets of this issue in a general rule:
As a general rule, an owner or occupier of premises must exercise reasonable care not to endanger the safety of others lawfully using abutting sidewalks. However, such owner is not an insurer of the safety of those using sidewalks in a business invitee commercial context. An owner is not liable for injuries just because someone using the sidewalk trips, falls, and sustains an injury. As with any negligence claim against the landowner, there must be a failure of duty to maintain its premises in a reasonably safe condition, and liability will arise only where the owner created or permitted to persist, a condition that raises an unreasonably unsafe condition.
Id., (citations omitted).
With the above as the backdrop for its analysis, the trial court in the recent case of Reinoso v. Heritage Warminster, et al., 2015 PA Super 8 (Pa. Super. January 14, 2015), held that 5/8 inch height difference between sections of the sidewalk was at most, trivial or de minimus. The Superior Court reversed.
The facts of Heritage are relatively simple. On May 15, 2009, 60-year-old Guadalupe Reinoso (Reinoso) and her five-year-old granddaughter were walking hand-in-hand on a sidewalk at the Warminster Town Center, a/k/a Heritage Town Center, a property owned by the defendant, Heritage, when they both tripped and fell on a raised section of the sidewalk. Reinoso, as a result of the fall, sustained a broken left wrist, left hand, and fractured ribs.
In support of her case, Reinoso proffered the report of an expert engineer/architect who inspected the site and took measurements of the sidewalk that revealed a height difference of 5/8 of an inch between sections of the sidewalk at the location where Reinoso fell. Specifically, the height differential on the right of the sidewalk measured by Reinoso’s expert was 1 and 1/8 inches; however, Reinoso testified during her deposition that she fell on the part of the sidewalk where the height differential was measured at only 5/8 of an inch. To this end, there was no issue of material fact that the alleged defect where the plaintiff fell was only 5/8 of an inch.
The Trial Court, citing to the above line of cases, held:
The landowner is not required to maintain the sidewalk to perfection, but only to the extent that unreasonably unsafe conditions are removed. The facts of this case are not in dispute and the material facts lead inexorably to the conclusion that Heritage was not negligent in permitting the subject condition to exist. There being no negligence, it would be a waste of judicial resources to allow this case to go to trial.
Reinoso filed a timely appeal to the Superior Court. Initially, a divided panel affirmed the Trial Court’s grant of summary judgment, but the Superior Court granted a request for re-argument before the court en banc resulting in the instant decision.
After reviewing the facts set forth above and reiterating its scope of review, the Superior Court first reviewed the duty a landowner owes to a business invitee to keep its premises safe. The Superior Court also cited the longstanding Supreme Court case of Carrender v. Fitterer, 469 A2.d 120 (Pa. 1983), for the proposition that for a danger to be “known” it must “not only be known to exist, but… also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.” To this end, the Superior Court in Heritage cited to a relatively recent Superior Court case, Campisi v. Acme Markets, Inc. 915 A.2d 117, for the notion that a landowner is under an affirmative duty to protect a business visitor not only against known dangers, but also against those which might be discovered with reasonable care.” Campisi, at 119.
The Superior Court then honed in on the opinion of the Trial Court that the alleged defect in the sidewalk being at its highest point of 1 and 1/8 inches on the far right of the sidewalk and 5/8 of an inch in the middle of the sidewalk where the plaintiff was walking was the only material fact at issue. The Superior Court disagreed and opined that the Trial Court failed to consider additional facts presented by the plaintiff in arriving at its holding. The Superior Court found in particular that the lower court failed to address the plaintiff’s expert opinion, that the defect in the sidewalk was “seriously in excess of the 1/4-inch standard for a tripping danger and constituted a walkway safety hazard.” The Superior Court also found that the Trial Court failed to acknowledge that the subject condition “violated applicable building codes and standards.” Finally, the Appellate Court cited to the record and specifically the testimony of a company employee assigned to maintain the sidewalk at the subject Heritage Mall who admitted in his deposition that he had brought the condition in question to the company that managed the Heritage Town Center.
In reversing the Trial Court, the Superior Court cited to two recent decisions, Mull v. Ickes, 994 A 2.d 1137 (Pa. Super. 2010), and Shaw v. Thomas Jefferson University, 80 A.3d 540 (Pa. Commw. 2013). In Mull, the plaintiff claimed she was injured when she stepped through a gap in the sidewalk outside a building owned by an insurance agency. The Trial Court granted summary judgment in favor of the insurance company, finding the defect in the sidewalk trivial. The Superior Court reversed concluding:
In this case, the defect was not so obviously trivial as a matter of law to authorize summary judgment. Mull’s fall occurred on a winter afternoon, when there was snow on the sidewalk. Pictures of the sidewalk taken that day revealed that, although there was snow in some places, there was no accumulation at the exact place Mull fell. She testified that she did not fall on snow; rather, she fell when she stepped into an uneven gap on the sidewalk and her ankle twisted. Photographs of the sidewalk showed that the gap measured approximately 2 inches, and that there was a difference in height of approximately 1 and 1/2 inches between the slabs of concrete that surrounded the gap. The slab of concrete at issue sloped towards the defendant’s building. The gap was in the direct line of travel for entering the building. The insurance agency owner acknowledged that he had noticed the gap and slope in the sidewalk prior to the plaintiff’s fall. After viewing this evidence in a light most favorable to the appellants, the Superior Court reversed the Trial Court holding that there is no definite or mathematical rule that determines when a defect is trivial and, instead, the case must be determined on the individual facts.
Similarly, in Shaw, the Commonwealth Court reversed the Trial Court’s grant of summary judgment in favor of Thomas Jefferson University finding that the Trial Court incorrectly determined that an elevation change from 2 to 2 and 1/2 inches between sidewalk panels was a trivial defect. In its conclusion, the Commonwealth Court opined:
After review of the record and surrounding circumstances, we conclude that the sidewalk defect is not so obviously trivial that summary judgment should have been granted to Appellees. The sidewalk is located in Center City, Philadelphia, and is heavily trafficked. Shaw also tripped on the defect in front of the University’s Hospital during lunchtime on a week day, when pedestrian traffic is particularly high. These conditions present genuine issues of material fact that must be submitted to the jury in order to determine whether Appellees negligently permitted the sidewalk defect remain. As the Supreme Court stated in Breskin, “even though the day was clear, the jury could rightfully determine that she could not see the defect in time to avoid it…. The question was for the jury under all the circumstances.”
Id., at 544-45, citing Breskin, 113 A.2d at 318.
Following Mull and Shaw, the Superior Court in Reinoso reversed. Frankly, the facts of both Mull and Shaw were easily distinguishable, as the gap or change in elevation was two inches or more in each case. Even the older cases referenced above would have considered a two-inch gap or height differential a proper question for the jury. Reinoso, however, turned on a change in elevation of slightly greater than one-half inch. It certainly leaves to question, what is trivial.
What It Means to You
The three cases, Mull, Shaw, and now Reinoso, provide fertile ground for a plaintiff’s counsel to steer their clients around the pitfalls of a daylight trip and fall accident. Reinoso, in and of itself, will make it difficult to achieve summary judgment for the defense.