Krofcheck Secures Dismissal for Homeowners’ Association in a Premises Liability Action; Affirmed by Appellate Court

Lauren Despot Krofcheck, a partner in the firm’s Pittsburgh, Pennsylvania office, successfully argued Defendant Homeowners’ Association’s Motion for Summary Judgment in a personal injury/premises liability lawsuit.

In this case, Plaintiff was participating in a Turkey Trot that was routed across the Homeowners’ Association’s property, without its knowledge or consent.  Plaintiff alleged that she fell during the race and sustained a significant wrist fracture as she crossed an “unavoidable” exposed corrugated steel pipe that obstructed the race route and ultimately caused her to fall.

The Homeowners’ Association filed the Motion for Summary Judgment based upon Plaintiff’s trespasser status coupled with there being no evidence of the Homeowners’ Association’s willful or wanton behavior intending to injure her; and, alternatively, based upon the open and obvious doctrine.  The Honorable Michael J. Lucas dismissed the action, and in his Memorandum Opinion and Order held that “[w]here a plaintiff subjects herself without any justification to the danger of injury, the proper disposition of the case is ‘…as a matter of law, [that] defendant owed plaintiff no duty....’”    Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 613 (1981).  The Court did not rule upon the trespass argument, but held that whether Plaintiff was a licensee or an invitee when she fell was of no consequence as Plaintiff’s knowledge of the pipe precluded her action against the defendants, and that the record was undisputed that the pipe upon which Plaintiff fell was open and obvious to all participants in the race.

During Plaintiff’s deposition, Attorney Krofcheck elicited admissions from Plaintiff, including that she fell while crossing the pipe for the second time, and that the pipe was “out of the ground . . . slippery . . . [and] wet.”  The Court agreed with the Homeowners’ Association’s argument that “[a] danger is deemed to be obvious when both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising normal perception, intelligence, and judgment.”  Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 123-124 (1983).  The Court also found it critical that Plaintiff admitted in her deposition that crossing the pipe was dangerous, but nevertheless chose to take that path—twice.  Ultimately, the Court held that the question of whether a danger was known and obvious may be decided by the trial court where reasonable minds could not differ as to the conclusion.  Banks v. Trustees of Univ. of Pennsylvania, 666 A.2d 329, 332 (Pa. Super. 1995), and Carrender, 469 A.2d at 123-24.  In this case, the Court held that reasonable minds could not differ that the pipe was open and obvious, and that Plaintiff appreciated the condition of the pipe.

Plaintiff appealed the trial court’s decision.[1]  In a Memorandum Opinion, the Appellate Court affirmed the trial court’s Order, holding that as a matter of law, Defendants owed no duty to Plaintiff because Plaintiff discovered the known, obvious, and avoidable pipe, but voluntarily traversed it a second time. 

If you have any questions about this case or any other insurance defense litigation issues in Pennsylvania, please contact Lauren Despot Krofcheck, Esq. at LKrofcheck@c-wlaw.com or (412) 563-2500.  Attorney Krofcheck concentrates her practice in insurance defense litigation including premises liability, products liability, employment discrimination, wrongful death, motor vehicle/trucking, and complex general liability matters.

[1] Plaintiff appealed the trial court’s decision to the Superior Court.  The Superior Court raised the issue of jurisdiction, sua sponte, by way of an Order/Rule to Show Cause as to why the Commonwealth Court would not have jurisdiction under 42 Pa.C.S. §762(a)(5)(i).  The Superior Court’s Order opined that the Commonwealth Court has exclusive jurisdiction over appeals from final orders of common pleas courts from orders in all actions or proceedings relating to corporations not-for-profit or unincorporated associations arising under Title 15. 42 Pa.C.S. §762(a)(5)(i).