Walker v. Community Action Realty, Inc.

41 Pa. D. & C.5th 410
CourtPennsylvania Court of Common Pleas, Lycoming County
DecidedOctober 13, 2014
DocketNo. 13-00,418
StatusPublished

This text of 41 Pa. D. & C.5th 410 (Walker v. Community Action Realty, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lycoming County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Community Action Realty, Inc., 41 Pa. D. & C.5th 410 (Pa. Super. Ct. 2014).

Opinion

GRAY, J.,

Before the court is defendant’s motion for summary judgment in a personal injury case where the plaintiff slipped and fell on the landing at the top of the steps exiting defendants’ building. Defendants contend they are entitled to summary judgment because plaintiff failed to identify the specific defect that caused her fall and because the alleged defect was so trivial that allowing it to exist was not negligent as a matter of law. Upon review and consideration of the briefs and argument in this matter, defendants’ motion for summary judgment is denied.

[412]*412Procedural Background

On February 19, 2013, plaintiff, Sarah Walker, filed a complaint in negligence related to her fall on March 3, 2011. On April 22, 2013 the parties filed a stipulation in which the general averments of negligence set forth in paragraphs ll(i) and ll(j) of the complaint were stricken. On April 23,2013, defendant, STEP, Inc. (STEP), filed an answer with new matter, raising comparative negligence, plaintiff’s pre-existing medical condition, and assumption of the risk. On June 24, 2013, defendant, Community Action Realty, Inc. (CAR), filed an answer with the same new matter as STEP. On June 4, 2014, defendants filed a joint motion for summary judgment with a supporting brief. On July 9, 2014, plaintiff filed her response to the motion for summary judgment with a supporting brief attached. Argument was held on July 28, 2014. No case monitoring notice has been filed.

Factual Background

On March 3,2011 Sarah Walker went to the STEP office at 2138 Lincoln Street related to programs offered there. Upon exiting the building, Walker stumbled, tripped and fell down the stairs into the sidewalk, sustaining injuries. Walker fractured three teeth and lost consciousness. In her deposition, Walker testified that her foot came into contact with a raised portion of the pavement on the porch at the top of the stairs, causing her to trip and fall down the stairs. See, Response to Summary Judgment (RSJ), at 4, citing Walker Dep. at 41:7-43:9. It is undisputed that there is a “raised area of the porch surface” located a few inches from the front edge of the top step, between the doormat and front step. The investigative report indicates that the irregularity is located three inches from the front edge of the exterior landing. The investigative report indicates [413]*413that the irregularity consists of an area of about 13/4x1 3/4 and is l/8th of an inch high. See, Summary Judgment Motion (SJM) at 3, Investigator’s report at 2. The raised area of the porch surface is located directly in the middle of the steps, which is a busy, heavily traversed point of primary access to a public building.

Conclusions of Law

Summary Judgment

1. Pursuant to Pa. R.C.P. 1035.2, the court may grant summary judgment at the close of the relevant proceedings if there is no genuine issue of material fact or if an adverse party has failed to produce evidence of facts essential to the cause of action or defense. Keystone Freight Corp. v. Stricker, 31 A.3d 967, 971 (Pa. Super. Ct. 2011).

2. A non-moving party to a summary judgment motion cannot rely on its pleadings and answers alone. Pa. R.C.P. 1035.2; 31 A.3d at 971.

3. When deciding a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, with all doubts as to whether a genuine issue of material fact exists being decided in favor of the non-moving party. 31 A.3d at 971.

4. If a non-moving party fails to produce sufficient evidence on an issue on which the party bears the burden of proof, the moving party is entitled to summary judgment as a matter of law. Keystone, 31 A.3d at 971 (citing Young v. Pa. Dep’t of Transp., 744 A.2d 1276,1277 (Pa. 2000)).

Negligence — Trivial Defects

5. “Pennsylvania law provides that property owners have a duty to keep their sidewalks in a reasonably safe [414]*414condition for travel by the public.” Peair v. Home Ass’n of Enola Legion No. 751, 287 Pa. Super. 400, 430 A.2d 665, 667 (Pa. Super. 1981). “Property owners must maintain their sidewalks so that they do not present an unreasonable risk of harm to pedestrians.” Bromberg v. Gekoski, 410 Pa. 320, 189 A.2d 176, 177 (Pa. 1963); German v. City of McKeesport, 137 Pa. Super. 41, 8 A.2d 437, 440 (Pa. Super. 1939).

6. A defect in sidewalk may be so trivial that the property owner or municipality cannot be liable as a matter of law. Davis v. Potter, 340 Pa. 485, 17 A.2d 338 (Pa. 1941)(no liability where pedestrian slipped and fell on snow and ice covering an elevation in pavement common in the city.) see also, Bosack v. Pittsburgh Railways Co., 410 Pa. 558, 189 A.2d 877 (Pa. 1963) (no liability where plaintiff tripped on depression or irregularity about 11/2 to 2 inches wide located outside normal pedestrian crossing) see also Harrison v. City of Pittsburgh, 353 Pa. 22, 44 A.2d 273, 274 (Pa. 1945) (finding that property owners could not be negligent because slightly elevated manhole cover in middle of sidewalk was slight and trivial).

7. “No definite or mathematical rule can be laid down as to the depth or size of a sidewalk depression” to determine whether the defect is trivial as a matter of law. Mull v. Ickes, 994 A.2d 1137, 1141 (Pa. Super. 2010), citing, Breskin v. 535 Fifth Ave., 381 Pa. 461, 113 A.2d 316, 318 (Pa. 1955); Emmey v. Stanley Co. of America, 139 Pa. Super. 69, 10 A.2d 795, 797 (Pa. Super. 1940). Thus, if the defect is not obviously trivial, the question of negligence must be submitted to a jury. Mull, 994 A.2d at 1141, citing, Breskin, 113 A.2d at 318. The Superior Court reversed summary judgment based upon the triviality of the defect in Mull v. Ickes, supra. In that case, the defect [415]*415consisted of a gap in the sidewalk measuring about two inches with a height difference of about 1 and 1/2 between slabs of concrete. “The gap was in the direct line of travel of one entering the building.” Mull v. Ickes, 994 A.2d at 1138.

Causal Connection

8. Logical and reasonable inferences as to the cause of a fall are sufficient to raise an issue of material fact and deny summary judgment. See, e.g., Marks v. Tasman, 527 Pa. 132, 137, 589 A.2d 205, 207 (Pa.

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Related

Bromberg v. Gekoski
189 A.2d 176 (Supreme Court of Pennsylvania, 1963)
Bosack v. Pittsburgh Railways Co.
189 A.2d 877 (Supreme Court of Pennsylvania, 1963)
Mull v. Ickes
994 A.2d 1137 (Superior Court of Pennsylvania, 2010)
Young v. Commonwealth Department of Transportation
744 A.2d 1276 (Supreme Court of Pennsylvania, 2000)
Marks v. Tasman
589 A.2d 205 (Supreme Court of Pennsylvania, 1991)
Breskin v. 535 Fifth Avenue
113 A.2d 316 (Supreme Court of Pennsylvania, 1955)
Keystone Freight Corp. v. Stricker
31 A.3d 967 (Superior Court of Pennsylvania, 2011)
Peair v. Home Ass'n of Enola Legion No. 751
430 A.2d 665 (Superior Court of Pennsylvania, 1981)
Davis v. Potter
17 A.2d 338 (Supreme Court of Pennsylvania, 1940)
Harrison Et Vir. v. Pennsylvania
44 A.2d 273 (Supreme Court of Pennsylvania, 1945)
Emmey v. Stanley Co. of America
10 A.2d 795 (Superior Court of Pennsylvania, 1939)
German v. McKeesport City (Et Al.)
8 A.2d 437 (Superior Court of Pennsylvania, 1939)
Harris v. Hanberry
613 A.2d 101 (Commonwealth Court of Pennsylvania, 1992)

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Bluebook (online)
41 Pa. D. & C.5th 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-community-action-realty-inc-pactcompllycomi-2014.