Argued August 5, 2014
Appeal from the Order of the Court of Common Pleas, Bucks County, Civil Division, No: 2010-07483. Before WAITE, J.
Dale G. Larrimore, Philadelphia, for appellants.
Carol J. Comeau, Philadelphia, for Heritage, appellee.
David C. Harrison, Philadelphia, for PA Assoc. of Justice, amicus curiae.
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN, OTT, WECHT, STABILE, and JENKINS, JJ.
Guadalupe Reinoso (" Reinoso" ) and her husband, Edmundo Dominguez (collectively " Appellants" ), appeal from the October 10, 2012 order entered in the Court of Common Plea of Bucks County, granting summary judgment in favor of Appellee, Heritage Warminster SPE, LLC (" Heritage" ). Reinoso claims the trial court erred in determining that a sidewalk defect on Heritage's property was trivial as a matter of law, warranting summary judgment and dismissal of Reinoso's claim of injury resulting from Heritage's negligence. Because we find the trial court's
grant of summary judgment constitutes an error of law, we reverse and remand.
On May 15, 2009, sixty-year old Reinoso and her five-year old granddaughter were walking hand-in-hand on a sidewalk at Warminster Towne Center, a/k/a Heritage Towne Center, a property owned by Heritage, when they both tripped and fell on a raised section of sidewalk. Heritage leased retail stores to tenants in Warminster Towne Center, including Kohl's Department Store. Answer to Complaint, 10/8/10, at ¶ 5. Heritage admitted its responsibility for maintaining the exterior areas outside Kohl's, including the sidewalks. Id. at ¶ 4.
Reinoso fell as she was walking toward Kohl's at the end of a charity event sponsored by Kohl's and other stores in the shopping center. Reinoso, a Kohl's employee, but not on duty at that time, served as a volunteer for the event, which took place in a parking lot behind the Kohl's store. Although she was a Kohl's employee, Reinoso did not park or enter the store in the area where the event was held. Prior to the day she fell, Reinoso had never walked on the sidewalk in question. As a result of her fall, Reinoso sustained a broken left hand and fractured ribs. Reinoso Deposition, 11/1/11, at 20-24, 29-30.
Reinoso's expert engineer/architect inspected the site in February 2012 and took measurements of the sidewalk that revealed a height difference of 5/8 of an inch between sections of the sidewalk in the location where Reinoso fell.
Heritage filed a motion for summary judgment asserting any defect in the sidewalk was, at most, trivial or de minimus. The trial court agreed the defect was de minimus and granted summary judgment. In its opinion, the trial court stated:
As a general rule, an owner or occupier of premises must exercise reasonable care not to endanger the safety of others lawfully using abutting sidewalks. However, such owner is not an insurer of the safety of those using sidewalks in a business invitee commercial context. An owner is not liable for injuries just because someone using the sidewalk, trips, falls, and sustains an injury. As with any negligence claim against the land owner, there must be a failure of duty to maintain its premises in a reasonably safe condition, and liability will arise only where the owner created or permitted to persist, a condition that raises an unreasonably unsafe condition. Cline v. Statler, 726 A.2d 1073 (Pa. Super. 1998); Breskin v. 535 Fifth Avenue, [381 Pa. 461, 113 A.2d 316, 318 (Pa. 1955)]; Bullick v. Scranton, [224 Pa.Super. 173, 302 A.2d 849 (Pa. Super. 1973)]. Where the defect is so obviously trivial, its gravity should be a fact determined in light of the circumstances of the particular case.
There is no issue of material fact that the alleged defect in the sidewalk was at its highest point 1-1/8th inches on the far right side of the sidewalk and 5/8ths
of an inch in the middle of the sidewalk, where [Reinoso] was walking. The landowner is not required to maintain the sidewalk to perfection, but only to the extent that unreasonably unsafe conditions are removed. The facts of this case are not in dispute and the material facts lead inexorably to the conclusion that Heritage was not negligent in permitting the subject condition to exist. There being no negligence, it would be a waste of judicial resources to allow this case to go to trial.
Trial Court Opinion (" T.C.O." ), 12/17/12, at 3.
Reinoso filed a timely appeal to this Court. A divided panel affirmed the trial court's grant of summary judgment. Following the grant of reargument, the case now comes before this Court en banc.
In this appeal, Reinoso contends the trial court erred by finding, as a matter of law, that the defect on the Heritage property was a trivial defect warranting summary judgment in favor of Heritage. Specifically, Reinoso presents the following question for our consideration:
I. Did the Trial Court err in finding that as a matter of law that the defect on [Heritage's] property was a " trivial defect" and [Heritage was] entitled to Judgment as a Matter of Law where the undisputed facts are:
(a) At the time of [Reinoso's] accident, [Heritage] owned and maintained the sidewalk where [Reinoso] fell which was on Heritage's premises located at 918 West Street Road, Warminster, PA, 18974;
(b) [Heritage] undertook the duty to maintain the sidewalk at the shopping center where [Reinoso] fell;
(c) [Reinoso] testified in her deposition that she tripped and fell on the sidewalk due to a height discrepancy of adjoining slabs of the sidewalk;
(d) There was over 1 inch height differential between the sidewalk slabs at the location where [Reinoso] fell, as measured by [Reinoso's] expert architect/engineer;
(e) Anthony Hargaden, the owner of [Lots & Us], and the maintainer of the parking lot and sidewalks of [Heritage's] property, expressed his concern to the agent of [Heritage] prior to the happening of [Reinoso's] accident, that the defective condition of the sidewalk (where [Reinoso] fell) was a tripping hazard;
(f) [Reinoso's] architect/engineer expert expressed the opinion based on a reasonable degree of engineering, architectural, and human factors certainty that:
" The subject sidewalk contained a defect at the incident location. Specifically, the abrupt change in level of the walkway surface that measured over 1 inch high was seriously in excess of the 1/4 inch standard for a tripping danger and constituted a walkway safety hazard. [Reinoso's] trip and fall was caused by this hazard." And
(g) As a result of the fall [Reinoso] suffered physical injuries including but not limited to a fractured left hand.
Appellants' Brief at 4-5.
When reviewing a trial court's grant of summary judgment, our standard and scope of review are as follows:
[O]ur scope of review is plenary, and our standard of review is the same as that applied by the trial court. Our Supreme Court has stated the applicable standard of review as follows: [A]n appellate court may reverse the entry of a summary judgment only where it finds that the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. In making this assessment, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. As our inquiry involves solely questions of law, our review is de novo.
Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.
Mull v. Ickes, 2010 PA Super 80, 994 A.2d 1137, 1139-40 (Pa. Super. 2010) (quoting Jones v. Levin, 2007 PA Super 412, 940 A.2d 451, 453-54 (Pa. Super. 2007) (internal citations omitted)).
In its opinion, the trial court discussed a land owner's duty to a business invitee to maintain its premises in a reasonably safe condition. T.C.O., 12/17/12, at 3. Before addressing the specific issue of whether the trial court erred as a matter of law in granting summary judgment based on a " trivial defect," it is instructive to consider the duty owed by Heritage to Reinoso as a business invitee that, if breached, could support a finding of negligence.
Pennsylvania courts long have recognized that a land owner owes a duty to business invitees to keep premises safe. See Kulka v. Nemirovsky, 314 Pa. 134, 170 A. 261, 262 (Pa. 1934). " The standard of care a possessor of land owes to one who enters upon the land depends upon whether the person entering is a trespassor, licensee, or invitee." Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 123 (Pa. 1983). In Carrender, our Supreme Court explained:
Possessors of land owe a duty to protect invitees from foreseeable harm. Restatement [(Second) of Torts], § § 341A, 343 & 343A. With respect to conditions on the land which are known to or discoverable by the ...