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2015 PA Super 8
GUADALUPE REINOSO & EDMUNDO IN THE SUPERIOR COURT OF
DOMINGUEZ, H/W PENNSYLVANIA
Appellant
V.
HERITAGE WARMINSTER SPE LLC
V.
KOHL'S DEPARTMENT STORES, INC. T/A
KOHL'S AND LOTS & US, INC.
No. 3174 EDA 2012
Appeal from the Order Dated October 10, 2012
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2010-07483
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
ALLEN, J., OTT, J., WECHT, J., STABILE, J., and JENKINS, J.
DISSENTING OPINION BY OTT, J.: FILED JANUARY 14, 2015
Because I do not believe the trial court committed an error in granting
summary judgment1 by determining the 5/8 inch misalignment between
sidewalk blocks was, as a matter of law, a trivial defect, I respectfully
dissent.
The standard used to evaluate the nature of a defect has been
succinctly set forth as follows:
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1
The majority has set forth the well-known standard for review of a grant of
summary judgment.
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What constitutes a defect sufficient to render the property owner
liable must be determined in the 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, 361 Pa. 620, 623, 65 A.2d 685, 686. “An
elevation, depression or irregularity in a sidewalk may be so
trivial that the court, as a matter as law, is bound to hold that
there was no negligence in permitting it to exist’ * * *. But
‘there is a shadow zone where such question 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
ultimately fixing the dividing line to the fraction of an inch, a
result which is absurd”. Henn v. City of Pittsburgh, 343 Pa.
256, 258, 22 A.2d 742, 743. No definite or mathematical rule
can be laid down as to the depth or size of a sidewalk depression
necessary to convict an owner of premises of negligence in
permitting its continued existence: Emmery v. Stanley Co. of
America, 139 Pa.Super. 69, 72, 10 A.2d 795.
Breskin v. 535 Fifth Avenue, 113 A.2d 316, 318 (Pa. 1955).
The determination that a defect may be deemed trivial as a matter of
law is derived from the recognition that “[s]light irregularities in the surface
of sidewalks … are unavoidable in a city, and are so common as not to
constitute any undue hazard to pedestrians.” Van Ormer v. City of
Pittsburgh, 31 A.2d 503 (Pa. 1943). Further, “[t]o impose a burden of
liability on either municipality or property owner for an imperfection as
common and usual … would put an intolerable burden on the property
owner.” Id. at 504.
The notion that sidewalks are inherently imperfect, containing defects
that might cause a person to fall, but are nonetheless not actionable, has
been explained in a common sense manner:
To impose a burden of liability on either municipality or property
owner for an imperfection as common and usual as that relied on
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to create liability in this case [a hole two inches wide and one
inch deep] would put an intolerable burden on the property
owner and the city…
German v. City of McKeesport, 8 A.2d 437 (Pa. Super. 1939).2
Thus, the legal basis upon which a defect is deemed trivial and non-
actionable recognizes that even a trivial defect could cause a person to trip,
and indeed, was formulated through cases in which the plaintiff in each
instance claimed to have fallen and suffered injury. However, recognition
that the defect was a tripping hazard, by itself, is not determinative of the
question whether the defect presents a question for the jury.
The determination of whether the defect is trivial must be considered
in light of the duty owed to, in this case an invitee, by the possessor of the
land. This duty is set forth in the Restatement (Second) of Torts, § 343,
which states, in relevant part:
A possessor of land is subject to liability for physical harm
caused to his invitee by a condition of 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
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2
This “common and usual” concept appears in case law through the years,
including Alston v. Commonwealth and PennDOT, 20 Pa. D. & C. 5th 49
(2010), aff’d, 31 A.3d 331 (Pa. Cmwlth. 2011)(unpublished memorandum).
In Alston, a 5/8 inch height differential was determined to be trivial as a
matter of law. The trial court noted the factual admission by the City of
Philadelphia that there are thousands of elevation differences of less than
one inch on the sidewalks of Philadelphia. Alston, 20 Pa. D. & C. 5th at *5.
While the holding in Alston is not binding on our Court, the factual
admission is enlightening.
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Restatement (Torts) 2d, § 343(a) (emphasis added).
Although the duty owed to an invitee is the highest duty imposed upon
a landowner. See Charlie v. Erie Ins. Exchange, 100 A.3d 244, 254 (Pa.
Super. 2014), the standard for determining liability, based upon the nature
of the defect, is the same regardless of whether the complainant is an
invitee or licensee. See Restatement (Second) of Torts, §§ 342(a), 343(a).
The determining factor for landowner liability is whether the condition
represents an “unreasonable risk of harm.” 3
With these standards and principles in mind, I examine the specific
circumstances of the incident, as required by our Supreme Court. Breskin,
supra.
I quote the entire statement of the accident as related by Reinoso in
her brief.
On May 15, 2009, Plaintiff Guadalupe Reinoso, date of birth
August 1, 1948, fell and was injured while walking on the
defendant’s sidewalk. At the time of the accident, the plaintiff
was wearing flat shoes. She was at the location of the accident
serving as a volunteer for a charitable cause known as “Child of
Yours, A Program to Benefit Abused Children.”
The defendants have admitted that they owned, managed,
maintained and/or were the landlord of the Warminster Town
Center which is located at 918 West Street Road, Warminster,
PA 18974. On the property is the shopping center and sidewalk
where Mrs. Reinoso fell. At the time of the accident, plaintiff was
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3
Because the only issue before us is whether the defect represented an
unreasonable risk or was trivial, we need not be concerned about the other
aspects of the landowner’s duty to an invitee.
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walking with her granddaughter, holding hands and when they
arrived at a point where the sidewalk was lifted, both plaintiff
and her granddaughter tripped and fell. Plaintiff testified further
that she tripped over the elevated portion of the sidewalk
causing her to fall.
Reinoso Brief, at 6.
Thus, the relevant factual history, as related by Reinoso, is that she
was walking with her granddaughter, while wearing flats, and she tripped
and fell over an uneven portion of the sidewalk. She does not report that
the sidewalk was crowded, and her deposition states that she tripped in the
late afternoon and that it was sunny. See Reinoso Deposition, 11/1/2011,
at 17.
However, Reinoso complains that the trial court failed to account for
the fact that her expert concluded that the 5/8 inch change in height (the
defect) was well above the 1/4 inch tripping hazard described in various
standards and codes. The expert also claimed, “The defect was not
highlighted in any way.” See Expert Report at 8. However, that statement
is clearly belied by the photograph attached to the expert report, where the
height difference is demonstrated by a dark line running precisely through
the spot where Reinoso indicated she fell. Additionally, the owner of Lots N’
Us, one of the co-defendants, had expressed his concern prior to the
incident that the defect constituted a tripping hazard. The majority agrees
that it was error for the trial court to ignore these “additional facts,” and
therefore, the issue of liability was properly for a jury to determine.
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I do not believe these “additional facts” negate the trial court’s
determination that the defect was trivial. The co-defendant merely stated
his non-expert opinion that the defect represented a tripping hazard. The
expert opined the defect constituted a tripping hazard and attached a
specific height, 1/4 inch, to define a tripping hazard. However, our Supreme
Court has prohibited the introduction of a “definite or mathematical rule.”
See Breskin, supra. Because a trivial defect can cause a trip and fall
without imposing liability, what is determinative is whether the defect posed
an unreasonable risk of harm to Reinoso.
A review of trip and fall cases in which a height difference in sidewalks
or walkways was a factor provides context for this determination. In Mull v.
Ickes, 994 A.2d 1137 (Pa. Super. 2010), a defect consisting of a one and
one-half inch height differential, a slight grade in the sidewalk block and a
two inch gap in the sidewalk could not be considered a trivial defect as a
matter of law. In Landy v. Romeo, 417 A.2d 1260 (Pa. Super. 1979), a
fourteen inch wide, two inch deep defect, that was covered by leaves, was
not trivial. Finally, in Breskin, supra, a four to five inch break in the
sidewalk, one to one and one-half inches deep, undetectable because of the
crowded sidewalk, was not trivial.
In Bosack v. Pittsburgh Railways Co., 189 A.2d 877 (Pa. 1963), a
one and one-half inch depression in cobblestones between railroad tracks
was insufficient as a matter of law to impose liability. In German v. City of
McKeesport, supra, a two inch wide, one inch deep irregularity, filled with
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dirt and seemingly solid, was similarly insufficient. In Van Ormer, supra, a
one-inch deep depression in the paving stones did not, as a matter of law
impose liability.
In the cited cases where a trivial defect was found, there are attributes
to the defect other than height differential. In Mull, Landy and Breskin,
the height differentials were all greater than one inch and had other gaps or
defects in the walkway, or the hazard was otherwise hidden. None of those
additional circumstances are found in the instant case.
In Bosack, German, and Van Ormer, the defect was described
mainly in terms of height differential, without other problems. Furthermore,
the height differentials in those cases were all greater than the 5/8 inch
differential presented instantly.4
Additionally, Reinoso’s expert noted that defects similar to the one at
issue were common to the area and were, at least partially, caused by the
root systems of the trees that were planted next to the sidewalks. See
Expert’s Report at 7, 8, 11-13. It is a situation common to the
urban/suburban experience, where trees are routinely planted next to
sidewalks. I would submit this aspect of the expert report echoes the
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4
I do not intend to suggest that a height difference alone can never be
sufficient to overcome designation as a trivial defect. Case law is clear that
all such determinations must be made on a case-by-case basis.
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appellate courts’ continuing discussion of the common and usual defects
found on sidewalks.
Our Supreme Court and the Restatement both permit the trial court to
make a determination that certain defects are too trivial to impose legal
liability upon the landowner, regardless of the fact the defect caused a
person to trip and fall.5
Guided by the above discussed case law, I conclude the trial court did
not commit an error of law in determining the 5/8 inch height differential, an
undisputed fact, without any other relevant attendant circumstances,
represents the type of common and usual defect inherently found in
sidewalks that makes such defect obviously trivial as a matter of law.
Reinoso presented no facts, other than the height difference, to support her
claim the sidewalk had been negligently maintained. Our Court’s decision in
German v. City of McKeesport, supra, also stated:
There are certain reasonable risks that every person who uses
city streets must assume as inconveniences to be set off against
the advantages of city life (Morris v. Philadelphia, supra [45
A. 1068 (Pa. 1900)]), and this case presents one of them.
Id., 8 A.2d at 441. I believe that statement applies herein.
Accordingly, I respectfully dissent.
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5
I believe, given the evidentiary record presented herein, the majority
decision makes it virtually impossible for a trial court to determine a defect
is trivial and be upheld. This result would effectively overrule existing case
law upon which the trial court is entitled to rely in granting summary
judgment.
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President Judge Emeritus Bender and Judge Shogan join this
dissenting opinion.
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