Connolly v. Geistwhite Landscaping

40 Pa. D. & C.4th 441, 1998 Pa. Dist. & Cnty. Dec. LEXIS 23
CourtPennsylvania Court of Common Pleas, Cumberland County
DecidedOctober 19, 1998
Docketno. 96-5225 Civil Term
StatusPublished

This text of 40 Pa. D. & C.4th 441 (Connolly v. Geistwhite Landscaping) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Cumberland County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connolly v. Geistwhite Landscaping, 40 Pa. D. & C.4th 441, 1998 Pa. Dist. & Cnty. Dec. LEXIS 23 (Pa. Super. Ct. 1998).

Opinion

BAYLEY, J.,

Plaintiff, Dorothy M. Connolly, instituted this suit against defendant, Geistwhite Landscaping Inc., seeking damages for personal injuries caused by a fall on October 18, 1994. A jury returned a verdict in favor of plaintiff in the amount of $200,000, and found plaintiff 30 percent comparatively negligent. The verdict was molded to $140,000. Defendant filed a motion for post-trial relief which is ready for disposition. The evidence in a light most favorable to plaintiff, the verdict winner, is as follows.

Plaintiff, a retired teacher, had lived alone since 1987, in a unit of the Forest Meadow Condominiums in the Borough of Carlisle. In October 1994, she was 73. She wore a prosthesis on her right leg which was partially amputated when she was a child. She did not use any type of device to assist her in walking.

Defendant, Geistwhite Landscaping Inc., had a lawn maintenance contract with the Forest Meadow Condominiums. On October 18, 1994, Donald Geistwhite Jr., the owner of defendant acting in its capacity as an independent contractor, performed core aeration on the lawns throughout Forest Meadow Condominiums. Geistwhite used a tractor that pulled an aerator. The aerator removed small plugs of ground and distributed them over the lawns. During the day, plaintiff was picked up by her friend, Ruth Corbin, to go to a seminar. Corbin walked on a sidewalk leading from the street to plaintiff’s front door. The weather was clear. Plaintiff came out and saw some dirt plugs on her sidewalk. She had not seen them earlier. Plaintiff and Corbin held each other and walked around the plugs to Corbin’s car. They then went to the seminar.

[444]*444As Donald Geistwhite was aerating the lawns, it started to rain. He stopped working and removed his equipment. He used a hand blower to blow off plugs of dirt that had been deposited onto the sidewalks of the condominium units. However, he failed to blow off plugs of dirt that had scattered onto the sidewalk of plaintiff.1 Plaintiff and Corbin returned from their seminar after about two hours. It was misting. Plaintiff got out of the car and Corbin drove away. Plaintiff saw many dirt plugs scattered on her front walk. She was surprised that dirt plugs were still there. The landscaper was not present. Plaintiff had her car in her garage at the rear of her condominium. The garage had an automatic door that could only be operated with an opener that was inside her car. There was a door inside the garage leading to her home that could be accessed only if plaintiff was inside the garage. The only other entrance to her home was her front door. Plaintiff mentally noted that she had to watch where she stepped. She knew she might fall if she stepped on a dirt plug. Plaintiff was looking down as she walked seven to 10 feet onto the sidewalk. She was walking between the plugs toward her front door. She felt that she could step over the plugs without stepping on any of them. However, plaintiff has “big feet,” and as she stepped around the plugs, the back of her right shoe hit one of the plugs and she fell, suffering severe, permanent injuries.

In its post-trial motion, defendant maintains that the court erred in refusing to grant its motion for a directed verdict, and that it is now entitled to a judgment n.o.v. Because defendant controlled the manner in which it performed its contract with the Forest Meadow Condominium while it was working as an independent contractor, it was as a temporary possessor of the land [445]*445subject to the standards imposed on a possessor of land. Brletich v. United States Steel Corporation, 445 Pa. 525, 285 A.2d 133 (1971). The standards are set forth in the Restatement (Second) of Torts §343, which provides:2

“Dangerous condition known to or discoverable by possessor
“A possessor of land is subject to liability for physical harm caused to his invitees 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 harm to such invitees, and
“(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
“(c) fails to exercise reasonable care to protect them against the danger.” (emphasis added)

Section 343A of the Restatement provides:

“Known or obvious dangers
“(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness, (emphasis added)

Defendant argues in its brief:

“[Djefendant Geistwhite submits that it owed no duty to the plaintiff either to give her warning of the condition or to remedy the condition because there was no reason on the defendant’s part to expect that the plaintiff would not discover or realize the danger, nor was there reason to expect that the plaintiff would fail to protect herself [446]*446against the danger. In fact, the plaintiff testified that she discovered and realized the danger and, in addition, she consciously took action to protect herself against the danger. Consequently, the plaintiff’s evidence failed to prove the second prong of the test to establish a duty under section 323 of the Restatement (Second) of Torts. In addition, this same evidence supports the application of the exception to section 343 liability created by section 343A of the Restatement (Second) of Torts. For these reasons, the court erred in denying defendant Geistwhite’s motion for directed verdict and justifies the grant of judgment n.o.v. in favor of defendant Geistwhite.
“Moreover, for the reasons discussed above, the plaintiff knowingly and consciously assumed the risk of the harm sustained as a matter of law such that the court erred by refusing to grant a directed verdict and defendant Geistwhite is entitled to judgment n.o.v. on that basis as well.” 3

Defendant’s argument is misplaced because in defining its duty it refers to only a part of section 343 of the Restatement. Plaintiff did acknowledge that she saw the dirt plugs on the sidewalk, and that she knew she could fall if she stepped on them. Obviously, her conduct was negligent. However, as to defendant’s conduct, it was for the jury to determine if it should have expected that plaintiff would fail to protect herself against the danger it created on the land. After defining negligence, ordinary care, and legal causation, we charged the jury under sections 343 and 343A of the Restatement:

“Geistwhite Landscaping Inc. is required to use reasonable care in the maintenance of the property of the Forest Meadow Condominium Association where it was [447]*447working as an independent contractor and to protect the people who use that property from foreseeable harm.

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Related

Hardy v. Southland Corp.
645 A.2d 839 (Superior Court of Pennsylvania, 1994)
Blackman v. Federal Realty Investment Trust
664 A.2d 139 (Superior Court of Pennsylvania, 1995)
Brletich v. United States Steel Corp.
285 A.2d 133 (Supreme Court of Pennsylvania, 1971)

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Bluebook (online)
40 Pa. D. & C.4th 441, 1998 Pa. Dist. & Cnty. Dec. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connolly-v-geistwhite-landscaping-pactcomplcumber-1998.