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12/12/97 CARL ELLIS v. CITY PITTSBURGH

December 12, 1997

CARL ELLIS
v.
CITY OF PITTSBURGH, APPELLANT



Appealed From No. GD90-13499. Common Pleas Court of the County of Allegheny. Judge ROSS.

Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable Rochelle S. Friedman, Judge, Honorable James R. Kelley, Judge. Opinion BY President Judge Colins. Dissenting Opinion BY Judge Doyle. Judge Kelley joins in this Dissenting opinion.

The opinion of the court was delivered by: Colins

OPINION BY PRESIDENT JUDGE COLINS

FILED: December 12, 1997

The City of Pittsburgh (City) appeals an order of the Court of Common Pleas of Allegheny County (trial court) denying its motion for post-trial relief. *fn1 We affirm.

On August 17, 1988, Carl Ellis (Ellis) sustained serious injuries as a result of a fall on a set of steps on City property. Ellis filed a writ of summons on August 7, 1990, and thereafter a complaint on September 11, 1990, seeking damages for these injuries. A hearing was held before a Board of Arbitrators, which found in favor of the City. Ellis filed an appeal to the trial court, which after a non-jury trial, awarded him damages in the amount of $47,717.25, including delay damages. The City then filed a motion for post-trial relief, and on August 8, 1996, the trial court denied this motion and entered judgment in favor of Ellis. This appeal followed.

When reviewing a trial court's denial of a motion for post-trial relief, our scope of review is limited to a determination of whether the trial court abused its discretion or committed an error of law. Pikur Enterprises, Inc. v. Department of Transportation, 163 Pa. Commw. 251, 641 A.2d 11 (Pa. Commw. 1994). Additionally, we must review the record in a light most favorable to the verdict winner, who is afforded the benefit of all reasonable inferences that arise from the evidence. United States Fidelity & Guaranty Co. v. Royer Garden Center and Greenhouse Inc., 143 Pa. Commw. 31, 598 A.2d 583 (Pa. Commw. 1991), petition for allowance of appeal denied, 530 Pa. 663, 609 A.2d 170 (1992) (citing Sacco v. City of Scranton, 115 Pa. Commw. 512, 540 A.2d 1370 (Pa. Commw. 1988), petition for allowance of appeal denied, 524 Pa. 601, 568 A.2d 1251 (1989)).

The City's motion for post-trial relief asserts that Ellis failed to present any evidence of notice by the City of the dangerous condition of the steps. On appeal, the sole issue is whether the trial court committed reversible error in finding that the City had timely actual or constructive notice of the dangerous condition of the steps based on the testimony and evidence presented at the non-jury trial. We believe the trial court's denial of post-trial relief was proper because the trial court, acting as fact finder, was presented with substantial evidence enabling it to draw the reasonable inference that the City had actual or constructive notice of the defective step.

Under the operative law, commonly referred to as the "sidewalk exception" of the Political Subdivision Tort Claims Act, 42 Pa. C.S. '8542(b)(7), a political subdivision (such as the City) may be subject to liability where there is a dangerous condition of sidewalks. However, in order to recover the plaintiff must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and that the political subdivision had actual or constructive notice of the condition at a time sufficiently prior to the accident to have taken measures to prevent the injury. *fn2 Id.

The evidence presented in the instant case permits the fact finder to draw the reasonable inference that the City had actual or constructive notice of the hazardous condition of the steps at a time sufficiently prior to Ellis' fall to have taken measures to prevent the injuries sustained. The trial court found that the steps in question had been repaired on January 13, 1987, and that no other repairs were made to the steps until two months after Ellis' accident. Ellis v. City of Pittsburgh, No. GD 90-13499, slip op. at 2 (C.P. Allegheny County Aug 13, 1996). Moreover, when the steps were repaired, it was necessary to replace eight missing railings and two completely missing steps, and to repair five other steps. Id. The court found that this evidenced a progressive deterioration of the steps over a nineteen-month period from the last repairs to Ellis' accident. Id. at 5. In addition, the testimony of the City's assistant director of public works highlighted that various City employees would clean or shovel these specific steps on four or five occasions a year. (Notes of Testimony (N.T.), p. 48). These employees were charged with the maintenance of City steps and were under an obligation to report any defects of the steps they discovered during their cleaning or shoveling. (N.T., pp. 48-49). This testimony, in conjunction with the testimony and evidence concerning the progressive deterioration of the steps, led the trial court to draw the reasonable inference that the City had actual or constructive notice of the dangerous condition of the steps at a point well before Ellis' accident. *fn3

It is within the purview of the fact finder to draw all reasonable inferences from the evidence presented at trial. Raesner v. Heinsius, 426 Pa. 166, 170, 231 A.2d 144, 147 (1966). *fn4 In the present case, the trial court, in its capacity as fact finder, drew a reasonable inference from the evidence presented that it was more likely then not that the City had actual or constructive notice of the dangerous condition at a time well before Ellis' accident. At the foundation of this inference was the evidence that the steps in question were in an extreme state of disrepair, the testimony that these steps were examined on four to five occasions a year, and undoubtedly, the trial court's own life experience that steps of this nature do not degrade as rapidly as argued by the City. Since this inference is supported by substantial evidence, the Conclusion of the trial court was neither an abuse of discretion nor an error of law.

Accordingly, we affirm the trial court's denial of the City's post-trial motion.

JAMES GARDNER COLINS, ...


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