October 30, 2013
GUADALUPE REINOSO & EDMUNDO DOMINGUEZ, H/W Appellant
HERITAGE WARMINSTER SPE LLC
KOHL'S DEPARTMENT STORES, INC. T/A KOHL'S AND LOTS & US, INC. Appellee
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. [*]
Guadalupe Reinoso and Edmundo Dominguez,  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). 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. 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.
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. 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 determining the defect was trivial. They are:
(a)Heritage owned and maintained the sidewalk;
(b)Heritage undertook the duty to maintain the sidewalk; (c) Reinoso testified she fell due to a height discrepancy between sidewalk slabs; (d) There was over a one inch differential between the slabs, as measured by Reinoso's expert;
(e)Anthony Hargaden, owner of the parking lot maintenance company retained by Heritage, agreed in his deposition that the height differential was a tripping hazard;
(f) Reinoso's expert opined the abrupt change of one inch in the level of the walkway was seriously in excess of the ¼ inch standard and constituted a tripping hazard; and
(g)as a result of her fall, Reinoso suffered physical injuries. See Reinoso Brief at 4-5.
Of these subsections, only (d) and (f) specifically address the nature of the defect, a slightly more than one inch height differential between the sidewalk blocks. The other subsections address the fact Reinoso tripped, she suffered damages, and Heritage was the allegedly responsible party. Essentially, Reinoso claims the height differential was the cause of her fall and was not trivial.
We begin by noting that although we are required to examine the evidence in the light most favorable to the plaintiff, as the non-moving party, we must disagree with the contention that the relevant height differential between the sidewalk blocks was one inch. Undisputed testimony indicates that Reinoso was walking in the middle of the sidewalk when she tripped and fell, not the right edge. See Reinoso Deposition, 11/1/11, at 33. Reinoso also submitted a photograph of the accident location. See Reinoso Deposition, 11/1/11, Exhibit 1. She circled a spot in the middle of the sidewalk indicating where she was walking and tripped. While the height differential at the right edge of the sidewalk was slightly greater than one inch, it was 5/8 inch where she indicated. Therefore, we accept the trial court's determination that the height differential at issue was 5/8 inch.
A review of trip and fall cases in which a height difference in sidewalks or walkways was a factor helps us provide context for our determination. In Mull v. Ickes, 994 A.2d 1137 (Pa.Super. 2010), a defect consisting of a one and one-half inch height differential, a slight grade in the sidewalk block and a two inch gap in the sidewalk could not be considered a trivial defect as a matter of law. In Landy v. Romeo, 417 A.2d 1260 (Pa.Super. 1979), a fourteen inch wide, two inch deep defect, that was covered by leaves, was not trivial. Finally, in Breskin, supra, a four to five inch break in the sidewalk, one to one and one-half inches deep, undetectable because of the crowded sidewalk, was not trivial.
On the other hand, in Bosack v. Pittsburgh Railways Co., 189 A.2d 877 (Pa. 1963), a one and one-half inch depression in cobblestones between railroad tracks was insufficient as a matter of law to impose liability. In German v. City of McKeesport, 8 A.2d 437 (Pa. 1939), a two inch wide, one inch deep irregularity, filled with dirt and seemingly solid, was similarly insufficient. In Van Ormer, supra, a one inch deep depression in the paving stones did not, as a matter of law impose liability.
It appears that a trivial defect is not found where there are attributes to the defect other than height differential. In Mull, Landy and Breskin, the height differentials were all greater than one inch and also had other gaps or defects in the walkway, or the hazard was otherwise hidden. None of those attendant circumstances are found in the instant case.
In Bosack, German, and Van Ormer, the defect was described mainly in terms of height differential, without other problems. We further note that the height differentials in those cases were all greater than the 5/8 inch differential present instantly.
Viewing the evidence presented, as well as the attendant circumstances, we find no error in the trial court's determination that the 5/8 inch height differential was a trivial defect. There was no showing of any gaps or breaks in the sidewalk that added to the danger. The height differential was less than other instances in which the defect was determined to be trivial. Reinoso has provided no other evidence of any circumstances that would elevate this admitted defect above trivial status. The height differential alone, similar to other tree locations at the Warminster Towne Center, was neither uncommon nor of such a nature as to produce an undue hazard. Therefore, we affirm the grant of summary judgment on behalf of Heritage.
Order granting summary judgment affirmed.
It is well-settled that "no definite or mathematical rule can be laid down as to the depth or size of a sidewalk depression to determine whether the defect is trivial as a matter of law. Thus, if the defect is not obviously trivial, the question of negligence must be submitted to a jury." Mull v. Ickes, 994 A.2d 1137, 1140 (Pa.Super. 2010) (citations and quotations omitted).
In my view, the Majority's conclusion that the 5/8 inch height differential at issue is trivial as a matter of law is not supported by the evidence. Not only was there expert testimony that the sidewalk level exceeded the ¼ inch safety standard, McCuen Opinion, 3/23/202, at 12, the owner of Lots N' Us, defendant Anthony Hargaden, testified during his deposition that he had noticed the uneven sidewalk at issue and had brought the defect to the attention of Heritage prior to Reinoso's fall. N.T., 11/1/2011, at 19-20.
Viewing this testimony in the light most favorable to Reinoso, bearing in mind that the law provides no definite or mathematical rule to determine whether the defect is trivial, I believe there is a genuine issue of material fact regarding the nature of the defect at issue here. As such, I would reverse the trial court's grant of summary judgment and remand this matter for trial.