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Shaw v. Thomas Jefferson University

Commonwealth Court of Pennsylvania

November 20, 2013

Dolores Shaw, Appellant
v.
Thomas Jefferson University and City of Philadelphia

Argued: October 10, 2013

BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge (P.) ROCHELLE S. FRIEDMAN, Senior Judge

OPINION

PATRICIA A. McCULLOUGH, Judge

Dolores Shaw (Shaw) appeals the October 11, 2012 order of the Court of Common Pleas of Philadelphia County (trial court) granting the City of Philadelphia's (City) motion for summary judgment and dismissing all claims against it. We reverse and remand.

Facts and Procedural History

Shaw fell on the sidewalk of Thomas Jefferson University (the University) located at 1025 Walnut Street, Philadelphia, Pennsylvania. She filed a complaint against the University and the City (together, Appellees), alleging that there was an irregularity, defect, and/or otherwise unsafe condition in the sidewalk that caused her to fall and sustain severe and permanent injuries and damages. In its answer, the City asserted that it had governmental immunity under section 8541 of the Judicial Code (Code), Act of Oct. 5, 1980, P.L. 693, as amended, 42 Pa.C.S. §8541, and that the University was primarily liable and thus sought contribution and indemnity from the University.[1] The City also filed a cross-claim against the University, asserting that it is primarily liable and seeking contribution and indemnity. (Trial court op., 1/8/13, at 1.)

Shaw participated in a deposition on October 27, 2010, and testified in pertinent part that she still experiences pain from her alleged fall. She further testified that the day she fell was a nice day with no precipitation. She stated that her view was unobstructed and that she was not looking down at the time of the fall. She also stated that she and her husband visited the site of the fall a week and a half later and measured a two to two and one-half inch elevation change from one segment of the sidewalk to the other. (Reproduced Record at 64, 72-73, 76.)[2]

The University filed a motion for summary judgment, claiming that it was not negligent because: (1) the sidewalk defect was trivial; and (2) it did not have actual or constructive notice of the alleged defect. By order dated January 18, 2011, the University's motion for summary judgment was granted and all claims against it were dismissed. Shaw appealed to the Superior Court, which quashed the appeal as interlocutory because the City remained as a defendant.[3]

The City then filed a motion for summary judgment, arguing that its motion should be granted for the same reasons that the University's motion for summary judgment was granted. The City also argued that its motion for summary judgment should be granted under the coordinate jurisdiction rule because it is only secondarily liable and all claims against the University had been dismissed. Further, the City asserted that Shaw presented no evidence that the City had actual or constructive notice of the sidewalk defect. The trial court granted the City's motion for summary judgment, because an equal tribunal had granted summary judgment to the primarily responsible party and, under the coordinate jurisdiction rule, the claims against the City must be dismissed. (Trial court op., 1/8/13, at 3.)

On appeal to this Court, [4] Shaw argues that: (1) the trial court erred in granting summary judgment by determining that the defect in the sidewalk was trivial and not a question for the jury; (2) if the grant of summary judgment to the University was in error, the grant of summary judgment to the City because of the coordinate jurisdiction rule was also in error, and the City's motion for summary judgment should have been independently reviewed regardless of the coordinate jurisdiction rule because the granting of the University's motion for summary judgment was clearly error; and (3) the granting of summary judgment to the University and to the City was in error because both had constructive notice of the defect in the sidewalk.

Discussion

Pennsylvania Rule of Civil Procedure No. 1035.2 states that a party may move for summary judgment when: (1) there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report; or (2) an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2(1), (2). The moving party bears the burden of proving the non-existence of genuine issues of fact. Thompson Coal Company v. Pocono Produce, Inc., 488 Pa. 198, 204, 412 A.2d 466, 469 (1979). All doubts are to be resolved in favor of the non-moving party. Id. at 204, 412 A.2d at 468-69.

Sidewalk Defect Not Trivial as a Matter of Law

It is well-settled that a sidewalk defect may be so trivial that a court must hold, as a matter of law, that the property owner was not negligent in allowing its existence. See Bosack v. Pittsburgh Railways Company, 410 Pa. 558, 563, 189 A.2d 877, 880 (1963); Henn v. City of Pittsburgh, 343 Pa. 256, 258, 22 A.2d 742, 744 (1941). "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." Breskin v. 535 Fifth Avenue, 381 Pa. 461, 463, 113 A.2d 316, 319 (1955) (internal quotations and citation omitted). However, there is no mathematical or bright-line rule that can be used to determine "the depth or size of a sidewalk depression necessary to convict an owner of premises of negligence ...


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