J-S87024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATHRYN GALLAGHER IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
KRISTEN RICHARDS
Appellee No. 960 MDA 2016
Appeal from the Order Entered May 17, 2016 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2015-CV-1859-CV
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED MARCH 13, 2017
Appellant, Kathryn Gallagher, appeals from the order granting
summary judgment in favor of Appellee, Kristen Richards. Among other
things, Gallagher contends material issues of fact exist as to whether she
knew or had reason to know of the water pipe1 over which she tripped on
November 12, 2014. We affirm.
We state the facts as construed in Gallagher’s favor. Gallagher has
resided in an apartment in a multi-unit low-rise rowhome in Harrisburg since
October 2012, or just over two years prior to her accident. Her rowhome
has two entrances: a main entrance on Forster Street and a side entrance on
Green Street. Richards resides on Green Street in a rowhome just two doors ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 The record also refers to the pipe as a valve, valve box, cover, water cover, or valve cover. For the convenience of the parties, we use “pipe.” J-S87024-16
away from Gallagher’s home — that is, two rowhomes separate Gallagher’s
rowhome from Richards’ rowhome.
Gallagher uses the Green Street entrance 95% of the time. N.T.
Gallagher Dep., 9/11/15, at 22. Ever since she moved to her apartment in
2012, Gallagher was aware of pipes protruding from the Green Street
sidewalk, including the pipe in front of Richards’ home. Throughout that
time, Gallagher believed the pipes were unsafe, but she did not contact the
water company because she did not know the pipes were water pipes. Id. at
38. She would walk around the pipes and could not ever recall tripping over
any pipe prior to her accident. Id. at 32.
Gallagher used the Green Street entrance at least once or twice per
day to commute to work or walk her dog. Prior to her accident, Gallagher
often walked her dog on Green Street, either on the brick sidewalk adjacent
to her rowhome and Richards’ rowhome, or on the opposite sidewalk.
Gallagher would walk on the portion of the sidewalk where the accident
occurred four to six times per week. N.T. Gallagher Dep. at 26, 29. It was
fairly common for Gallagher to look down at the sidewalk when she walked
her dog because she was vigilant about ensuring her dog did not eat or step
in something lying on the sidewalk. Id. at 28.
The early morning of November 12, 2014, was a cold, clear day with
no precipitation. N.T. Gallagher Dep. at 43-44. Gallagher walked her dog
that morning, but does not recall whether she did so on Green Street. Id. at
44. After she returned from walking the dog, she exited on Green Street
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around 10:30 a.m. Id. at 60. She intended to walk to her car, which was
parked a block away, and drive to work. Gallagher testified that she was
wearing her winter coat and carrying a drink — either a water bottle or
coffee — and a cell phone in one hand, and her work bag in the other hand.
Id. at 45-46. Gallagher was also wearing eyeglasses, as she is farsighted,
and flat rubber-soled shoes. She was on medication, but the medication did
not affect her balance or vision. Id. at 49. Gallagher said she was thinking
about her work day. Id. at 62.
As she walked out of her Green Street exit and proceeded toward her
car, Gallagher first passed two pipes with a low profile — pipes on which she
could potentially stub her toe. N.T. Gallagher Dep. at 50-52. Then, she
tripped on the pipe in front of Richards’ door and fell. Id. at 56. Gallagher
saw the pipe as she tripped. Her right toe or toes hit the pipe, which was
“almost four inches off the ground.” Id. at 53, 55.2 She struck the pipe with
sufficient force that she was “elevated up into the air” before falling straight
forward. Id. at 53. As a result, she broke her left kneecap and had other
injuries. Id. at 50. She said that she did not injure her head because she
“was sliding.” Id.
Gallagher explained that she did not see the pipe prior to falling
because she usually walks with her head up in order to be aware of her
____________________________________________ 2 Gallagher first testified that her right toe hit the pipe and later testified that all of her toes on her right foot hit the pipe.
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surroundings. N.T. Gallagher Dep. at 57. Gallagher variously testified that
she (1) “probably was not looking” at the sidewalk that morning, or (2)
might or might not have glanced down at the sidewalk. Id. She
remembered that she was looking at her car that was parked further down
the block. Gallagher acknowledged that if she was paying greater attention,
she could have avoided tripping and falling, and that if she was located five
feet in front of the water pipe and looked down, she would have seen it. Id.
at 58-59. Gallagher did not testify that her view of the pipe was obstructed
or concealed (by other pedestrians or leaves, for example) or that she was
distracted by an outside influence (such as another pedestrian or the sound
of a vehicle horn).
Gallagher contacted the water company a few weeks after she fell.
After a water company crew examined and photographed the area, the
company sent an e-mail dated December 1, 2014, that disclaimed
responsibility and said it was “the home owner’s responsibility for anything
that is on their sidewalk.” N.T. Gallagher Dep. at 34.
On March 11, 2015, Gallagher sued Richards for negligence, alleging
that Richards failed to “eliminate the dangerous condition created” by the
raised pipe in the sidewalk in front of her house, failed to ensure the pipe
was flush with the sidewalk, and failed to repair the raised pipe. Am. Compl.
at ¶ 7. After discovery, Richards filed a motion for summary judgment. The
court heard argument and then granted Richards’ motion on May 17, 2016.
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In a memorandum,3 the trial court explained that Gallagher walked across
Richards’ sidewalk as a licensee, and that, under Section 342 of the
Restatement (Second) of Torts (1965), Richards had no duty to Gallagher
that would give rise to liability for negligence. The court stated:
“A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved.” Rossino v. Kovacs, 553 Pa. 168, 172, 718 A.2d 755, 757 (1998) (citing Restatement of Torts (Second) § 342).
* * *
Plaintiff clearly testified that she was very familiar with the condition of the sidewalk in front of Defendant’s residence, having walked in front of it approximately three to six times a week for over two years. Furthermore, Plaintiff clearly testified that she considered the pipe unsafe since the first time that she noticed it. Based on Plaintiff’s testimony, Defendant cannot be held liable because Plaintiff knew about the condition and was aware of the risk involved. See Himes v. New Enter. Stone & Lime Co., 399 Pa. Super. 301, 308, 582 A.2d 353, 357 (1990) (“a duty on the part of the possessor of the land is not present in the present case because Ms. Himes knew or had reason to know of the condition of the bridge and the risk involved in traversing it.”).
Trial Ct. Op. at 2-3.
____________________________________________ 3 Gallagher’s brief did not include the trial court’s memorandum opinion, which is required by Pa.R.A.P. 2111(b).
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Gallagher timely appealed and raises the following issues:
A. Whether the trial court erred by granting [Richards’] motion for summary judgment when there existed genuine issues of fact as to whether Ms. Gallagher knew or had reason to know of the water pipe and the risk involved.
1. Whether the water pipe was sufficiently obvious and open at the time Ms. Gallagher fell.
2. Whether a reasonable person in Ms. Gallagher’s position would have forgotten about the pipe’s presence in the moments before falling.
B. Whether homeowners should be insulated from liability solely on the basis that an open and obvious defect, of which they are aware, is also known to a pedestrian.
Gallagher’s Brief at 3-4.
The standard for reviewing a grant of summary judgment is well
settled:
A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.
In evaluating the trial court’s decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.
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Toro v. Fitness Int’l, LLC, 150 A.3d 968, 972 (Pa. Super. 2016) (citation
omitted).
Here, Gallagher sought to hold Richards liable for negligence.
In order to hold a defendant liable for negligence, the plaintiff must prove the following four elements: (1) a legally recognized duty that the defendant conform to a standard of care; (2) the defendant breached that duty; (3) causation between the conduct and the resulting injury; and (4) actual damage to the plaintiff.
Nationwide Mut. Fire Ins. Co. v. Modern Gas, 143 A.3d 412, 415 (Pa.
Super. 2016). The first requirement, duty, “is an essential element of a
negligence claim,” Alderwoods (Pa.), Inc. v. Duquesne Light Co., 106
A.3d 27, 31 (Pa. 2014), and whether a defendant has a duty that will give
rise to liability for negligence is a question of law as to which our scope of
review is plenary. Newell v. Montana West, Inc., ___ A.3d ___, 2017 WL
219102, *2 (Pa. Super., Jan. 19, 2017).
When she used the sidewalk in front of Richards’ rowhome, Gallagher
was acting as a licensee. See Alexander v. City of Meadville, 61 A.3d
218, 221-22 (Pa. Super. 2012); see generally Rossino v. Kovacs, 718
A.2d 755, 757 (Pa. 1998) (defining a “licensee” as “a person who is
privileged to enter or remain on land only by virtue of the possessor’s
consent” (citing Rest. 2d Torts § 330)). Therefore, as the trial court held,
any duty of Richards to Gallagher with respect to the condition of the
sidewalk is governed by Section 342 of the Second Restatement of Torts,
which provides:
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A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.
Both parties agree that this case is governed by Section 342. Gallagher’s
Brief at 10-11; Richards’ Brief at 7-8.
We have held that a possessor of land may be liable under Section 342
“only if all three criteria” under that section are met. Himes v. New Enter.
Stone & Lime Co., 582 A.2d 353, 356 (Pa. Super. 1990), appeal denied,
590 A.2d 758 (Pa. 1991); accord Long v. Manzo, 682 A.2d 370, 373 (Pa.
Super. 1996) (“[e]ach of those three elements must be satisfied before a
possessor of land will be subject to liability”), appeal denied, 693 A.2d 967
(Pa. 1997). The trial court held that Gallagher may not recover under
Section 342 because she cannot satisfy the section’s third requirement —
that she did “not know or have reason to know of the condition and the risk
involved.” With respect to this requirement, Comment l to Section 342
states:
Dangers known to licensee. The licensee, who enters land with no more than bare permission, is entitled to nothing
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more than knowledge of the conditions and dangers which he will encounter if he comes. If he is warned of the actual conditions, and the dangers involved, or if he discovers them for himself without such warning, and fully understands and appreciates the risk, he is in a position to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining. Therefore, even though a dangerous condition is concealed and not obvious, and the possessor has given the licensee no warning, if the licensee is in fact fully aware of the condition and the risk, there is no liability to [the possessor].
Here, the record viewed in Gallagher’s favor substantiates the trial
court’s determination that Gallagher knew about the pipe protruding from
the sidewalk in front of Richards’ house and fully understood and appreciated
the risk of injury presented by that pipe. Gallagher had lived at her
residence for more than two years and walked on that sidewalk four to six
times each week. She had seen the pipe protruding from the sidewalk and
walked around it. She testified that she had believed the pipe was unsafe.
As the trial court recounted, Gallagher testified “that [Richards’] water pipe
was obvious because it was sticking up, and that she believed that the water
pipes were unsafe since the time that she moved in to her apartment.” Trial
Ct. Op. at 3. In view of this uncontradicted evidence, the trial court did not
err in holding that Gallagher could not recover under Section 342 of the
Second Restatement of Torts. See Himes, 582 A.2d at 356.
Gallagher’s brief presents two responses. First, in what she frames as
her second issue, Gallagher says that “homeowners should not be insulated
from liability solely on the basis that an open and obvious defect, of which
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they are aware, is also known to a pedestrian.” Gallagher’s Brief at 19
(capitalization omitted). Though not clearly developed, this argument
appears to contend that Pennsylvania law should impose liability on a
possessor of land for injuries to a pedestrian licensee regardless of whether
the licensee knew of the dangerous condition causing her injury. Thus
stated, Gallagher’s argument is a request that we disregard the
requirements of Section 342 of the Second Restatement when considering
Richards’ liability. But we are not free to do that.
The relevant Restatement provision, in the form of its predecessor in
the First Restatement of Torts (1934), has been a part of Pennsylvania law
since the Supreme Court first applied it in 1936. See Di Marco v.
Pennsylvania R. Co., 183 A. 780, 782 (1936); see also Cutler v. Peck
Lumber Mfg. Co., 37 A.2d 739, 740-41 (Pa. 1944). The Supreme Court
adopted Section 342 of the Second Restatement in 1970. See Sharp v.
Luksa, 269 A.2d 659, 661 (Pa. 1970); see also Rossino, 718 A.2d at 757.
As an intermediate appellate court, this Court is “duty-bound to effectuate
[the Supreme] Court’s decisional law” and “lacks the authority to determine
that [the Supreme] Court’s decisions are no longer controlling.” Walnut
Street Assocs. v. Brokerage Concepts, Inc., 20 A.3d 468, 480 (Pa.
2011). We therefore are bound by the requirements in Section 342.4
____________________________________________ 4 The case cited by Gallagher for a contrary result, Johnson v. Bruner, 61 Pa. 58 (Pa. 1869), is inapposite. That case dealt with the duty owed by an employer to its employee, a minor, who fell through a trap door. The (Footnote Continued Next Page)
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Gallagher’s other argument is that application of Section 342(c)
presents a jury question, and that it therefore was error for the trial court to
decide this case on summary judgment. Although “whether the licensee
knew or had reason to know of the condition [of the relevant property] and
its attendant risks[] is usually a question of fact for the jury[, . . . t]his
question may be decided by the court . . . if reasonable minds could not
differ.” Long, 682 A.2d at 373. Thus, we have not hesitated to affirm an
entry of summary judgment on this issue when the record discloses that the
licensee’s knowledge is not subject to dispute. See, e.g., Himes, 582 A.2d
at 356-57; see also Long, 682 A.2d at 374 (affirming compulsory nonsuit).
Here, as the trial court held, the undisputed evidence made clear that
Gallagher was aware of the hazardous condition posed by the pipe on
Richards’ sidewalk. The trial court therefore did not err in entering summary
judgment on this issue.
In contesting this result, Gallagher identifies the specific questions that
she wishes to present to the jury as “whether the water pipe was sufficiently
obvious and open at the time Ms. Gallagher fell” and “[w]hether a
reasonable person in Ms. Gallagher’s position would have forgotten about
the pipe’s presence in the moments before falling.” Gallagher’s Brief at 4;
_______________________ (Footnote Continued) decision had nothing to do with a homeowner’s duty to a mere licensee permitted to traverse her sidewalk, and it therefore was not governed by the rule now set forth in Section 342 to govern this situation.
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see id. at 11-18. Gallagher’s argument betrays a misunderstanding of
Section 342.
The premise behind Gallagher’s argument is that it is “within the realm
of possibility” that “she did not see or consciously appreciate the condition
and the risk it posed at the time she fell.” Gallagher’s Brief at 11 (emphasis
in original). Therefore, she claims, there should be a trial regarding whether
the dangerous condition of the sidewalk was “obvious” or “open” at the time
of her injury. But that is not what Section 342(c) requires. Rather, the only
question under that provision is whether the licensee “d[id] not know or
have reason to know of the condition and the risk involved.” See Rest. 2d
Torts § 342(c). As the Restatement points out, “If the licensees are adults,
the fact that the condition is obvious is usually sufficient to apprise them, as
fully as the possessor, of the full extent of the risk involved in it.” Rest. 2d
Torts § 342, Com. b. But the licensee’s knowledge of the condition might
just as well arise from notice given by the homeowner, from the licensee’s
own investigation, or from some other source. See id., Com. l. “Therefore,
even though a dangerous condition is concealed and not obvious, and the
possessor has given the licensee no warning, if the licensee is in fact fully
aware of the condition and the risk, there is no liability to [the possessor].”
Id. Here, Gallagher admitted that she knew of the hazard presented by the
pipe protruding from Richards’ sidewalk. Trial Ct. Op. at 2-3; N.T. Gallagher
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Dep. at 38. Therefore, no trial was needed to determine how “open” or
“obvious” that protrusion was.5
Similarly, Gallagher argues at length that even though she knew of the
protruding pipe, she reasonably may “have forgotten about the pipe’s
presence in the moments before falling.” Gallagher’s Brief at 15
(capitalization omitted). In support, Gallagher’s brief discusses cases in
which pedestrians were held not to be negligent merely because of such
lapses in memory. See id. at 15-19 (discussing Weitz v. Baurkot, 406
A.2d 1138, 1139-40 (Pa. Super. 1979), and Vuynovich v. Midland
Borough, 25 Pa. D. & C.2d 509 (C.P. Beaver 1961)); see also id. at 20-21
(discussing Marks v. Redner’s Warehouse Mkts., 136 A.3d 984 (Pa.
Super. 2016) (contributory negligence decision applying Maryland law)).
But, once again, that is not a relevant question under this provision of the
Restatement.
Section 342 sets forth a rule to determine whether a possessor of land
“owed a duty of care” to a licensee. Alexander, 61 A.3d at 221; see id. at
223. If the licensee knew or had reason to know of the dangerous condition
____________________________________________ 5 The main case on which Gallagher relies, Robinson v. City of Philadelphia, 2012 WL 8678953, 2012 Pa. Commw. Unpub. LEXIS 417 (Pa. Cmwlth. 2012), does not call for a different result. Unlike Gallagher, the plaintiff in that case did not admit that she knew of the hazard over which she tripped. The plaintiff agreed that the hazard appeared obvious when viewed in photographs after the accident, but there was a factual dispute regarding whether she should have seen the hazard before she fell. Id., 2012 WL 8678953, at *4-*5, 2012 Pa. Commw. Unpub. LEXIS 417, at *12- *16.
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of the property under Section 342(c), then the possessor of the property
owes the licensee no duty with respect to that condition. See Cutler, 37
A.2d at 740-41. It therefore does not matter whether the licensee once
knew of the condition and then reasonably forgot at the moment she tripped,
or whether the licensee may have been subject to distractions or other
factors that made her tripping non-negligent. Section 342(c) does not
inquire whether the licensee was negligent; it inquires whether she know of
the condition, and nothing more. Accordingly, Gallagher’s discussion of
cases about whether a plaintiff’s contributory (or comparative) negligence
presented jury questions that were not amenable to summary judgment is
beside the point.
Although she knew there was a pipe protruding from Richards’
sidewalk, Gallagher tripped on it and was injured. Richards is not liable to
Gallagher for those injuries because Richards owed no duty to Gallagher
under Section 342 of the Second Restatement of Torts. There are no
material factual disputes presented by this question. Accordingly, having
discerned no error of law or abuse of discretion, we affirm the trial court’s
grant of summary judgment. See Toro, 150 A.3d at 972.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/13/2017
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