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[U] Reinoso v. Heritage Warminster Spe LLC

Superior Court of Pennsylvania

October 30, 2013

GUADALUPE REINOSO & EDMUNDO DOMINGUEZ, H/W Appellant
v.
HERITAGE WARMINSTER SPE LLC
v.
KOHL'S DEPARTMENT STORES, INC. T/A KOHL'S AND LOTS & US, INC. Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Dated October 10, 2012 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2010-07483

BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J. [*]

MEMORANDUM

OTT, J.

Guadalupe Reinoso and Edmundo Dominguez, [1] husband and wife, appeal from the order entered in the Court of Common Pleas of Bucks County on October 10, 2012, granting summary judgment in favor of defendant Heritage Warminster (Heritage).[2] In this appeal, Reinoso claims the trial court erred in determining the defect in the sidewalk where she fell was "trivial" and therefore, non-actionable. After a thorough review of the submissions by the parties, the certified record, and relevant law, we affirm.

This Court's scope of review of an order granting summary judgment is plenary. Basile v. H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115, 1118 (2000). Our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion. Id. Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035.2; see also Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d 418, 429 (2001). The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Basile, 761 A.2d at 1118. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Id. (citing Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245, 248 (1995)).

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221-22 (Pa. 2002).

Pursuant to the complaint, on May 15, 2009, Guadalupe Reinoso and her granddaughter were visiting the Warminster Towne Center shopping center with the intention of going to the Kohl's department store located there. While walking on an exterior sidewalk in the parking lot, Reinoso tripped and fell because of the uneven sidewalk. Pursuant to Reinoso's expert, the defect was a height difference of 5/8 inch where she fell.[3] She suffered various injuries as a result of her fall, including a broken left hand and broken ribs. Her expert, Len McCuen, PE, AIA, provided a written opinion stating the 5/8 inch difference between sidewalk sections was a tripping hazard pursuant to the American Society for Testing and Materials, Standard Practice for Safe Walking Surfaces.[4]

Following the close of discovery, Heritage filed a motion for summary judgment, arguing the 5/8 inch height difference was a "trivial defect" as a matter of law, and therefore, Heritage was not negligent in maintaining the sidewalk. After reviewing the submissions by the parties, the trial court agreed with Heritage, determining that as a matter of law, the sidewalk was not unreasonably dangerous and therefore Heritage was "not negligent in permitting the subject condition to exist." See Trial Court Opinion, 12/17/12, at 3. Reinoso now argues that in light of the circumstances of the case, there was sufficient dispute to require a jury determination.

The standards used in evaluating the question of whether a defect is trivial have been set forth by our Supreme Court:

What constitutes a defect sufficient to render the property owner liable must be determined in the light of the circumstances of the particular case, and 'except where the defect is obviously trivial, that question must be submitted to the jury'. Aloia v. City of Washington, 361 Pa. 620, 623, 65 A.2d 685, 686. "An elevation, depression or irregularity in a sidewalk may be so trivial that the court, as a matter as law, is bound to hold that there was no negligence in permitting it to exist' * * *. But 'there is a shadow zone where such question must be submitted to a jury whose duty it is to take into account all the circumstances. To hold otherwise would result in the court ultimately fixing the dividing line to the fraction of an inch, a result which is absurd". Henn v. City of Pittsburgh, 343 Pa. 256, 258, 22 A.2d 742, 743. No definite or mathematical rule can be laid down as to the depth or size of a sidewalk depression necessary to convict an owner of premises of negligence in permitting its continued existence: Emmery v. Stanley Co. of America, 139 Pa.Super. 69, 72, 10 A.2d 795.

Breskin v. 535 Fifth Avenue, 113 A.2d 316, 318 (Pa. 1955).

The trivial defect rule is derived from the recognition that "[s]light irregularities in the surface of sidewalks … are unavoidable in a city, and are so common as not to constitute any undue hazard to pedestrians." Van Ormer v. City of Pittsburgh, 31 A.2d 503 (Pa. 1943). Further, "[t]o impose a burden of liability on either municipality or property owner for an imperfection as common and usual … would put an intolerable burden on the property owner." Id. at 504. Therefore, we recognize that the trivial defect rule represents the attempt to balance duty to pedestrians to provide a safe place to walk with the realization that by nature, sidewalks are imperfect and cannot be maintained to perfection. Further, the rule recognizes that even a trivial defect could cause a person to trip.[5] The pedestrian is, therefore, entitled to a reasonably safe walkway.

In her Statement of Questions Involved, Reinoso provides seven subsections that she claims the trial court overlooked or misapprehended in ...


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