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KAPLAN v. EXXON CORP.

May 13, 1996

AARON KAPLAN and JUDITH KAPLAN
v.
EXXON CORPORATION VS. JAMES J. ANDERSON CONSTRUCTION, CO., INC. and JAMES D. MORRISSEY, INC.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 MAY 13, 1996

 This action arises under our diversity jurisdiction. The following facts are culled from the Complaint as well as evidence proffered to this Court in the briefing of this Motion for Summary Judgment. Disputed facts will be noted as such.

 On March 22, 1993, Plaintiff Judith Kaplan was waiting for a SEPTA bus with three other people on Levick Street in Philadelphia, Pennsylvania in front of property owned by Defendant Exxon Corporation. Nine days earlier, a major snow storm had occurred and a large amount of snow still remained on the ground. The two center lanes of Levick Street had been plowed and the snow moved to the curb lanes. The snow created a three-foot high mound that began at a fire hydrant located between the corner of Levick Street and the bus stop. The mound continued to about half-way down Levick Street and was between two and three feet wide. A key issue in this case is whether the mound was only in the street or whether it extended onto the sidewalk as well.

 When the bus arrived at the stop, Ms. Kaplan and the three other people took turns climbing the mound of snow to cross from the sidewalk to the street and the waiting bus. A woman crossed before her with obvious difficulty and needed the help of two men to help her down the slope. When Ms. Kaplan reached the top of the slope she slipped and fell and broke her leg.

 It appears that the sidewalk was largely clear of snow and ice and that Ms. Kaplan had experienced no trouble walking on the sidewalk from the corner to the bus stop. In addition, Ms. Kaplan apparently could have avoided the snow mound by walking a short distance up Levick Street to the fire hydrant, entering the street at that point and then walking back to the bus. However, Ms. Kaplan testified that the bus was on a time schedule and that she believed the bus would leave without her if she took this alternate route.

 As a result of the accident, Ms. Kaplan brought this suit against Exxon. It alleges negligence for failing to keep the sidewalk abutting its property clear and related breaches of duty. There is also a claim of loss of consortium by Mr. Kaplan. Exxon, in turn, has brought a third-party complaint against the contractors who were hired by the City of Philadelphia to plow the Levick Street neighborhood.

 Standard of Review

 In considering a motion for summary judgment, a court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 Discussion

 Exxon bases its motion for summary judgment on three arguments: (1) that there is no proximate cause because Ms. Kaplan did not slip and fall on the sidewalk, but on the street; (2) that it had no duty to keep the street free of snow and ice and (3) that it was relieved of a duty to protect Ms. Kaplan when she ...


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