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EVALEE CLAYTOR v. CHOICE DURHAM (01/04/80)

filed: January 4, 1980.

EVALEE CLAYTOR
v.
CHOICE DURHAM, MARJORIE DURHAM, AND CITY OF PHILADELPHIA, (TWO CASES). APPEAL OF CITY OF PHILADELPHIA. APPEAL OF CHOICE DURHAM AND MARJORIE DURHAM



No. 1726 October Term, 1978, No. 1889 October Term, 1978, Appeal from Orders of the Court of Common Pleas of Philadelphia County, Trial Division, Entered May 26, 1978 at No. 4820 April Term, 1975.

COUNSEL

Barbara R. Axelrod, Assistant City Solicitor, Philadelphia, for appellant.

William L. Akers, Philadelphia, for appellee.

Van der Voort, Hester and Wieand, JJ.

Author: Wieand

[ 273 Pa. Super. Page 574]

Evalee Claytor, appellee, sustained a fractured hip when she slipped and fell on a patch of ice on a Philadelphia sidewalk. Separate actions in trespass against the City of Philadelphia and against Choice and Marjorie Durham, who owned the premises on which the sidewalk was located, were consolidated and tried non-jury before the Honorable Theodore C. Smith. A verdict for $40,000.00 was entered jointly against the City and the property owners, exceptions were dismissed, and both defendants appealed.

On the morning of February 8, 1974, appellee left her apartment to do some shopping. While she was shopping it began to snow, and she decided to return home. She took a bus and returned to the bus stop on Ardleigh Street, from where she walked along Ardleigh Street toward her apartment. Although she had covered the same ground earlier, she now found the sidewalk covered with a light layer of snow. She slipped on ice and fell in front of the Durham residence at 6339 Ardleigh Street.

Testimony at trial from appellee and from a passerby who came to her aid was that the ice which caused appellee's fall had accumulated in a depression in the sidewalk and had been covered by snow. It was shown by photographs and further testimony that the depression had been created by

[ 273 Pa. Super. Page 575]

    the separation of two concrete slabs. One of the slabs had been pushed up several inches from its original position by the roots of a shade tree standing at the curb. In July or August of 1966, the City had notified the Durhams of the need to repair this defect in the sidewalk. The Durhams had engaged a contractor who added a triangular cement patch which formed, in effect, a ramp between the separated slabs. The City had then inspected and approved the repair. However, the tree roots continued to grow from the time of the repair to the time of the accident, with the result that the slab had been raised further and surfaced above the level of the repair patch. A depression had also formed at the end of the repair patch, and here it was that water accumulated and froze.

Weather reports admitted into evidence showed that for four days prior to February 8, 1974, the City had experienced both substantial precipitation and freezing temperatures. Appellee testified that when she had gone shopping earlier that day she had noticed patches of ice at various places on Ardleigh Street. On her return trip, however, they could not be discerned because they were hidden by the covering of snow.

After the verdict, appellants moved for judgment n. o. v. They contended then, as they do on appeal, that the evidence showed a general slippery condition and that appellee failed to sustain her burden of showing hills and ridges of ice and snow sufficient to constitute notice to appellants of a dangerous condition. See, e. g., Williams v. Schultz, 429 Pa. 429, 240 A.2d 812 (1968); Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 623 (1962); Strother v. Binkele, 256 Pa. Super. 404, 389 A.2d 1186 (1978). There is no merit in this contention. The evidence disclosed an artificially created ...


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