No. 488 October Term 1977, Appeal from the Order of the Court of Common Pleas of Lancaster County, Civil Action, Law, Pa., No. 113, October Term, 1975.
Daniel H. Shertzer, Lancaster, for appellant.
Christopher S. Underhill, Lancaster, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents and would affirm. See Price, J., dissenting opinion in McMillan v. Mountain Laurel Racing, Inc.,
[ 256 Pa. Super. Page 408]
This is an appeal from an order refusing to take off a non-suit in a trespass action to recover for personal injuries suffered as a result of a slip and fall.
[ 256 Pa. Super. Page 409]
In considering an appeal from a refusal to take off a non-suit, we must view the evidence in the light most favorable to the appellant, resolving every conflict in his favor, and giving him the benefit of every reasonable favorable inference. Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 219 A.2d 676 (1966); Fegely v. Costello, 417 Pa. 448, 208 A.2d 243 (1965). Viewed in this light, appellant's evidence was to the following effect.
On February 13, 1975, appellant, accompanied by his wife, his brother, and a friend, drove to the unemployment office on Lime Street in the City of Lancaster. The unemployment office is a long narrow building with the narrow front section of the building facing Lime Street. A driveway runs along the side of the building, and there is an entrance on the long side towards the rear of the building from Lime Street. The entire building is surrounded by a sidewalk, and there is a railing at the edge of the sidewalk in front of the side entrance.
Appellant parked his car alongside the curb at the building's side. The front of the car was about 3 to 4 feet from the railing, while the rear of the car was about 10 to 12 feet from the entrance. Appellant got out on the driver's side of the car, and proceeded around the rear of the car and onto the sidewalk, where he fell. Appellant stated that the entire sidewalk was covered with snow and ice; his description of this condition will be discussed more fully below.
In appraising the sufficiency of this evidence, we must apply a three part test:
Where a property owner is charged with negligence in permitting the accumulation of snow or ice on his sidewalk, the proof necessary to sustain such a charge has been clearly defined by our decisional law. It is encumbent upon a plaintiff in such situation to prove: (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians
[ 256 Pa. Super. Page 410]
travelling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused plaintiff to fall. Absent proof of all such facts, plaintiff has no basis for recovery. See Miller v. City Ice and Fuel Co., 363 Pa. 182, 184, 69 A.2d 140; Milburn v. Knights of Columbus Home Association, 167 Pa. Super. 509, 511, 76 A.2d 466.
Rinaldi v. Levine, 406 Pa. 74, 78-79, 176 A.2d 623, 625 (1962).
The lower court expressed some doubt in regard to the first part of this test, and held that appellant had failed to satisfy the other two parts.
With respect to the proof of an unreasonable obstruction to travel:
"The ridge must be shown to be of such substantial size and character as to be a danger to the public, not a mere uneven surface caused by walking upon the ice. The proof must describe the alleged ridge as to size and character, and be such as to support a finding that it was a substantial obstruction to travel. Plaintiff does not meet the burden of proof by showing such surface, even though a witness may refer to it as consisting of little ridges or bumps. . . ."
Rinaldi v. Levine, supra at 79-80, 176 A.2d at 626, quoting Kohler v. Penn Township, 305 Pa. 330, 332, 157 A. 681 (1931).
Appellant testified that no part of the sidewalk had been cleared off; that it was "icy, . . . lumpy, hilly," with ruts of 3-4 inches. N.T. 18. This was a sufficient description of the size and character of the ridges to present to the jury the question of whether there was "a danger to the public." Rinaldi v. Levine, supra. The lower court's hesitation was based on its opinion that there was no testimony by appellant that the condition of the sidewalk created "a substantial obstruction to travel." Lower Court Opinion
[ 256 Pa. Super. Page 411]
at 3. This phrase is in the nature of a conclusion or opinion, and could not have been expressed by appellant in so many words; appellant's description of the sidewalk and of the ridges of ice was sufficient to permit the jury to conclude that "a substantial obstruction to travel" existed.
With respect to the proof that the property owner had notice:
In Pennsylvania, an abutting property owner is primarily liable for the removal of ice and snow upon the sidewalk. Solinsky v. Wilkes-Barre, 375 Pa. 87, 93, 99 A.2d 570; Vinnacombe v. Philadelphia (and American Stores Co.), 297 Pa. 564, 147 A. 826; Beebe et al. v. City of Philadelphia, 312 Pa. 214, 216, 167 A. 570. However the law, wisely, does not require that such abutting owner keep the sidewalk free from snow and ice at all times: to hold otherwise would require the impossible in view of the climatic conditions. . . . Snow and ice upon a pavement create merely transient danger and the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove it when it ...