By Kevin L. Connors, Esquire

This question is at the very heart of premises liability cases, predicated on claiming that a Property Owner’s negligence results in personal injury to a business invitee, be it pedestrian, or other, with the flashpoint being what constitutes a defect that might require action by a Property Owner in avoidance of injury to an unfamiliar Helen Keller, the presumption being that no one ever looks until it is too late.

So, in Reinoso v. Heritage, et al, the Plaintiffs had filed suit against a Property Owner, Heritage, and its Tenant, Kohl’s, alleging that the Plaintiff sustained personal injuries as a result of a premises defect that the Plaintiffs alleged was sufficient to establish negligence against the Property Owner for failing to correct an alleged property defect, being a raised section of sidewalk that the Plaintiff, Reinoso, and Reinoso’s five year old granddaughter, tripped over and fell, as they were walking hand-in-hand in May of 2009.

As a result of tripping and falling, the Plaintiff broke her left hand, as well as fracturing several ribs.

Suing for personal injuries, the Plaintiff retained an Expert witness, an Engineer/Architect, who measured the height differential in the sidewalk, which was 5/8 of an inch at the point where the Plaintiff fell.

Boldly defending the premises defect claim, the Property Owner, Heritage, filed a Motion for Summary Judgment.

It argued that any defect that might exist on the sidewalk was de minimis, negating the alleged duty that the Plaintiffs sought to impose on the Property Owner, with Heritage arguing that the Trial Court should enter Summary Judgment in its favor, thereby dismissing the Plaintiff’s personal injury claim.

Citing to Cline v. Statler, 726 A.2d 1073 (Pa. Super. 1998), the Trial Court granted Summary Judgment, in reliance upon the Court concluding that the Property Owner was not required to maintain the sidewalk to perfection, but only to the extent that unreasonably safe conditions would be removed.

So concluding, the Trial Court concluded that there were no genuine issues of material fact, and that it would be a waste of judicial resources to allow the case to proceed to Trial.

Appealing to the Superior Court, the Superior Court, in an Opinion authored by Justice Stabile on January 14, 2015, reversed the Trial Court, remanding the case back to the Trial Court, the Bucks County Court of Common Pleas, to resolve material issues of genuine fact, as articulated in the Superior Court Opinion, to include the Trial Court having relied, in the Opinion which it authored explaining its granting of Summary Judgment, that the Trial Court had relied upon an unpublished Opinion of the Superior Court, which, by virtue of its unpublished status, had zero precedential effect on that the Trial Court’s determination that the alleged defect causing the Plaintiff to fall was “trivial”, with the Superior Court holding that the duty owed by a Property Owner to a business invitee, as opposed to a trespasser or licensee, is controlled by Sections 341A, 343 and 343A of the Restatement (Second) of Torts, with it being a generally long-recognized premise of Pennsylvania Premises Liability Law that “the duty owed to a business invitee is the highest owed to any entrant upon land. The Landowner is under an affirmative duty to protect a business visitor not only against known dangers, but also against those which might be discovered with reasonable care.” Campisi v. Acme Markets, Inc., 915 A.2d 117 (Pa. Super. 2006).

Under Section 343 of the Restatement (Second) of Torts, a business invitee is:

“Entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and risk involved therein. Therefore, an invitee is not required to be on the alert to discover defects which, if he were a mere licensee, entitled to expect nothing but notice of known defects, he might be negligent in not discovering. This is of importance in determining whether the visitor is or is not guilty of contributory negligence in failing to discover a defect, as well as in determining whether the defect is one which the possessor should believe that his visitor would not discover, and as to which, therefore, he must use reasonable care to warn the visitor.”

Keep in mind, that the standard for granting Summary Judgment is incredibly high, for whomever is seeking it, as it requires the Court to determine, on its review of the record before it, that reasonable minds cannot disagree that there are “no genuine issues of material fact” at dispute, such that judgment must be entered as a matter of law for the Moving Party, as any issue of genuine material fact compels the converse, being that Summary Judgment must be denied, to allow the Jury, as fact-finder, to determine all findings of fact.

The Summary Judgment standard under P.R.C.P. 1035.1, also requires the Trial Court to view the record and evidence in the light most favorable to the non-Moving Party, with the Superior Court in Reinoso concluding that while there was no genuine issue of material fact as to the height of the differential in the sidewalk, there was a material issue of genuine fact, as to whether the height differential constituted a walkway safety hazard, as had been the opinion of the Plaintiff’s tripping Expert.

Don’t you hate when that happens?

Are there “trivial defect” precedents?

Yes, “an elevation, depression or irregularity in a sidewalk may be so trivial that the Court, as a matter of law, is bound to hold that there was no negligence in permitting it to exist… But ‘there is a shadow zone’ where such a question must be submitted to a Jury whose duty it is to take into account all of the circumstances. To hold otherwise would result in the Court ultimately fixing the divining line to the fraction of an inch, a result which is absurd.” Henn v. City of Pittsburgh, 22 A.2d 742 (Pa. 1941).

There is, like it or not, no definite or mathematical rule that can be laid down as to the depth or size of a sidewalk depression necessary to impose liability upon a Premises Owner for the continued existence of the alleged defect, the translation of which is that the question is one of fact, ultimately residing in the exclusive province of the Jury. Emmey v. Stanley Co. of America, 10 A.2d 795 (Pa. Super. 1940).

We get it; and, yes, both of these citations are older than anyone reading this article.

There being no judicial divining rod for determining the dividing line between trivial and non-trivial defect, wherever they might reside, with the Pennsylvania Supreme Court having specifically rejected the proposition that an engineering measurement alone should be utilized to measure whether something is or is not defective, holding instead, in Bosack v. Pittsburgh Railways Co., 189 A.2d 877 (Pa. 1963), that it is “simply one of economic and physical practicality balancing the need to protect against property damage and personal injury…”, with Bosack establishing that a paving defect is trivial when “it would be completely unreasonable, and practical, and unjustifiable” to impose liability for its existence.

Talks like a question of fact, walks like a question of fact, and, wait, yes, it is a question of fact, one which, like it or not, reasonable minds might disagree as to whether it does or does not create liability.

Still savoring the reversal of Summary Judgment in a trivial defect case in Mull v. Ickes, 994 A.2d 1137 (Pa. Super. 2010), the Reinoso Superior Court held that “if the defect is not obviously trivial, the question of negligence must be submitted to a Jury.”, in reliance upon Bosack.

A similar result also occurred in Shaw v. Thomas Jefferson University, 80 A.3d 540 (Pa. Cmwlth. 2013).

Viewing the evidence in the light most favorable to the Plaintiff in Reinoso, the Reinoso Court reversed the granting of Summary Judgment, and remanded the case back to the Trial Court, with five Superior Court Justices joining in the Majority Opinion, with three Justices dissenting, including Ott, Bender and Shogan.

Turning to the Dissenting Opinion, authored by Justice Ott, it began with the recognition that “slight 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).

Moreover, imposing “a burden of liability on a Municipality or Property Owner for imperfections common and usual…would put an intolerable burden on the Property Owner.”

Not that sounds more like it!

Consider further that the general consensus has been, since Christopher Columbus days, that the world is not flat.

That makes, for lack of a more accurate description, common sense, a robe to be worn by both bipedal business invitees and who you gonna sue Property Owners, requiring both parties to come to the dance in their dancing shoes.

Yes, the duty that a Property Owner owns to a business invitee is the highest duty imposed upon a Property Owner, under a legion of precedential authorities, the determining factor being whether the condition causing injury represents an “unreasonable risk of harm”.

Did it in Reinoso?

Concluding that both the Pennsylvania Supreme Court and the Restatement (Second) of Torts permit Trial Courts to make determinations that certain defects are too trivial to impose legal liability upon a Property Owner, regardless of whether the defect causes a person to trip and fall or not, the Dissent concluded that the sidewalk upon which the Plaintiff tripped and fell was such that it represented a type of common and usual defect inherently found in sidewalks, such that the defect was obviously trivial as a matter of law, and that there was no evidence to support the Plaintiff’s claim that the sidewalk was negligently maintained.

Gotta love it, except for the fact that it sounds like a Phillies box score after the All Star break in July, as you catch last call, in the 7th inning stretch, before heading to parking to get out of Dodge before being robbed of common sense.

Speaking of cents, which is one thing Plaintiff will now make on remand, how do we read between the lines, in the course of weighing the risk of Helen Keller being early for her 3:00 appointment with you to talk about her most recent personal injury case?

Well, carrying really good insurance is a start, but that, in and of itself, does not eliminate the risk, it just redistributes it.

And that risk is, dependent upon which side of the bar that you are ordering your shooters from, is that injury will outweigh common sense, and that injury alone is sufficient to establish liability, in the course of negating what was, literally for thousands of years of human history, that the world is not a level playing surface, even after paving it to make way for a parking lot.

More to the point, there is simply no objective standard upon which a bright-line rule can be delineated, like for instance, the sun always rises in the East, a total misnomer, as we all know that it does not rise in the East, as it only appears to rise and set across the horizon, as the uneven Earth circles the life-sustaining and non-trivial celestial orb we know as the Sun.

Yes, begging the question of when a trivial defect is truly trivial, a balance must be struck between reasonable and unreasonable expectations, and while that balance cannot be a rigid application dependent upon precise measurements, it should nevertheless analyze factors relevant to the totality of the circumstances, to include:

• Length of presence;
• Absence or occurrence of prior accidents;
• Absence or occurrence of prior complaints;
• How blind must one be not to see it;
• Distraction factors, like cell phones, conversation, hand-holding, weather; and,
• Yes, both height and depth make a difference, although neither are absolutes.

And, no, as the Property Owner, you are not required to be ever-vigilant, remaining awake 24/7, wondering when the next accident will occur, as you are not a “guarantor of safety”, since you are simply a “reasonable person”, acting reasonably in the care and maintenance of the property you so desperately seek to defend from judgment.

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