accumulate in ridges or elevations so as to unreasonably obstruct travel.
Under the Rinaldi theory plaintiff must establish the causal connection between the existence of the hill or ridge and the plaintiff's fall. The plaintiff's testimony reveals the cause of the fall to be the pothole and loose gravel surrounding it, not the snow.
Therefore, the hills and ridges theory is inapplicable and accordingly any recovery by plaintiff must rest on an ordinary negligence theory of liability.
We conclude that defendant was not guilty of negligence and that plaintiff was guilty of contributory negligence and thus we need not consider whether plaintiff was a licensee or an invitee.
Irrespective of whether plaintiff was a licensee or an invitee, contributory negligence would bar his recovery. Nonetheless, for purposes of the following analysis we shall assume without deciding that plaintiff was a business invitee when he slipped and fell on the Bustleton Post Office driveway.
The possessor of land owes a business invitee a duty to exercise reasonable care to keep the premises in a reasonably safe condition or to warn of hidden dangers thereon. Stimmel v. Kerr, 394 Pa. 609, 148 A.2d 232 (1959). As our findings of fact indicate the defendant did, on two separate occasions, in accordance with the terms of the lease, notify the managing agent, Mr. Charles Kahn, Jr., of the need to repair certain conditions existing at the Bustleton Office, including the asphalt driveway and large pothole. When this action failed to produce any results, the defendant notified the Prudential Insurance Company of America, mortgagee of the property, informing them of the condition of the premises and the need for repairs. Correspondence copies of this letter were sent to James and Robert Weinberg, the lessors, and Mr. Kahn, the managing agent. Again, the defendant obtained no action in response to these requests. Receiving no cooperation from any of the above parties the defendant instituted a procedure whereby it went outside the terms of the lease in an effort to secure repairs to the property. On December 27, 1967 the defendant on its own initiative did solicit bids from three independent contractors for the work needed. It was shortly after the defendant had received the three estimates and notified Mr. Kahn thereof that the accident occurred. These facts establish that the Government proceeded with reasonable diligence in attempting to have the potholes in the driveway repaired. Accordingly, the Government was not negligent since it did exercise reasonable care to keep the premises in a reasonably safe condition, thus meeting the obligation which it owed to its business invitees.
We must next consider whether the plaintiff's prior, actual knowledge of the existence of the condition which allegedly caused his injury precludes his recovery on the basis of contributory negligence.
It is well established under Pennsylvania law that contributory negligence is a complete bar to recovery by a plaintiff injured by defendant's negligence. Where the plaintiff's actions indicate that he has failed to exercise reasonable care for his own protection and safety, and that failure is the sole or a contributory cause to his injury, he may not recover. Bredder v. Leidenfrost, 134 F. Supp. 487 (M.D.Pa.1955). Or, where a person by his own actions has unnecessarily subjected himself to a danger which should have been anticipated and is thereby injured, then he is guilty of contributory negligence. Mroz v. Dravo Corp., 429 F.2d 1156 (3 Cir. 1970).
The possessor of land, the position occupied by the defendant, is under an obligation to a business invitee to exercise reasonable care to keep the premises in a reasonably safe condition or to warn of hidden perils of which he knows. However, this affirmative duty is not required if the danger to be warned against is an obvious one. Stimmel v. Kerr, supra. The authors of Restatement (Second) of Torts take a similar view as expressed in § 343(A).
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.
It is, therefore, apparent that contributory negligence by plaintiff will bar recovery from the possessor of the land even assuming, as we have, that plaintiff is a business invitee.
The next determination to be resolved is the degree of obviousness or knowledge of the dangerous condition that is required in order to justify a finding of contributory negligence.
In comment (e) to § 343(A) of Restatement (Second) of Torts, the authors state that an invitee is "entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes."
The testimony reveals that the plaintiff did have actual knowledge of the condition, which he acquired through his day-to-day employment at the Bustleton Post Office. He had been employed by the post office in this particular office since it moved to the premises in 1965. The superintendent of the Bustleton office had complained of the existing condition in an effort to remedy the situation during the winter of 1967-68. The same superintendent testified that the driveway and parking area had been in varying states of disrepair since the office was built in 1965. Plaintiff's own testimony indicates that he had knowledge of the condition on the day of the mishap.
In Pewatts v. J. C. Penney Co., 356 F.2d 586 (3 Cir. 1968), the owner of a store was not liable to a business invitee who tripped over a low platform used for a dress display. The platform was in clear view of the customer, whose own testimony stated that she (the invitee) was looking at the floor where she was walking when the accident occurred. The Third Circuit Court of Appeals held that defendant store owner was not an insurer and a plaintiff cannot walk blindly or carelessly into a clearly visible object and recover for injuries which resulted from her negligence.
The testimony establishes that plaintiff Greenbaum had knowledge of the existence of the large pothole but nevertheless chose to proceed along a course which he knew would take him into close proximity to it. Plaintiff testified that he was exercising great care because he knew of the pothole and the loose gravel, but mistakenly thought that he had safely passed it.
It, therefore, appears that plaintiff, knowing full well of the potential danger, nevertheless chose the route which was most likely to camouflage the dangers of which he knew and to which he fell victim. But for the plaintiff's negligent action of choosing the camouflaged and dangerous route of which he had knowledge the fall and subsequent injury would not have occurred. The plaintiff's contributory negligence was, therefore, the proximate cause of his injury.
Conclusions of Law
1. This action arises under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671.
2. Plaintiff at the time of institution of this action resided within the jurisdiction of this Court.
3. The "hills and ridges" doctrine of Pennsylvania law does not apply to the instant case.
4. The defendant was not negligent in that it exercised reasonable care to keep the premises in a reasonably safe condition for its business invitees.
5. Plaintiff was contributorily negligent in that he failed to exercise reasonable care for his own safety and protection, as required under Pennsylvania law.
6. The contributory negligence of the plaintiff was a proximate cause of his injury.
7. Judgment shall be entered in favor of the defendant and against the plaintiff on the issue of liability.