United States District Court, E.D. Pennsylvania
a negligence case. Plaintiff Clyde Mason avers that he was
injured when he fell on an icy sidewalk outside his apartment
building in Philadelphia, Pennsylvania. He claims that
the icy condition was caused by the negligence of defendants
Brandywine Construction and Management, Inc.
(“Brandywine”), and South Bank Street Properties
(“SBSP”). Presently before the Court is
defendants' Motion for Summary Judgment
(“Motion”) (Document No. 20, filed Nov. 17,
2016). For the reasons that follow,
defendants' Motion is granted in part and denied in part.
relevant facts as set forth in evidence submitted by the
parties are as follows. In January 2015, Clyde Mason lived in
an apartment building at 23 South 3rd Street, Philadelphia,
Pennsylvania (the “apartment building”) with his
then-girlfriend Sukari Keetin. Defs.' Statement of Facts
(“SOF”) ¶ 3; Mot. Ex. B (“Mason
Dep.”) 13:20-24, 14:1-18, 21:20-21; Stip. to Substitute
South Bank Street Properties, L.P. as a Def. for Def. SR
Partners (“Stipulation”) at 1 (Document No. 12,
filed May 10, 2016). On January 18, 2015, at approximately
8:15 A.M., plaintiff and Keetin left the apartment building.
Mason Dep. 50:1-11. Both plaintiff and Keetin testified that
it was raining or lightly raining when they left the
apartment building through the Bank Street entrance. Mason
Dep. 59:12-15; Mot. Ex. D (“Keetin Dep.”)
16:17-21. Plaintiff also characterized the precipitation as
freezing rain. Mason Dep. 77:17-78:2. Meteorological records
for the Philadelphia International Airport in southwest
Philadelphia, approximately nine miles southwest of the
apartment building, reported rain and freezing drizzle from
6:54 A.M. to 8:25 A.M., and freezing drizzle and freezing
rain from 8:25 A.M. to 8:54 A.M. on January 18th. Mot. Ex. C,
at 4; Pl.'s Resp. to Mot. Summ. J. (“Pl.'s
Resp.”) Ex. 10, at 3 (Document No. 21, filed Nov. 23,
2016). Meteorological records from the Northeast Philadelphia
Airport, approximately thirteen miles northeast of the
apartment building, reported freezing rain from 7:21 A.M. to
8:08 A.M. and rain from 8:17 A.M. to 11:35 A.M. Mot. Ex. C,
at 9; Pl.'s Resp. Ex. 10, at 3.
saw ice on the sidewalk when he stepped out of the apartment
building at the Bank Street entrance and testified that the
ground felt slippery underfoot. Mason Dep. 63:13-64:1. The
street also looked icy to plaintiff. Mason Dep. 70:19-24.
Plaintiff began to walk on the sidewalk on Bank Street and
testified that Keetin walked next to him in the street. Mason
Dep. 68:6. According to plaintiff, Keetin fell but was not
injured shortly before plaintiff fell. Mason Dep. 67:15-68:6,
70:6-8. Plaintiff testified that he fell as he approached the
corner of Bank Street and Elbow Lane. Mason Dep. 72:14-19.
Plaintiff described his fall as follows: “My right
boot-so I slipped, my left leg and foot went up, my right
boot stuck in the ice. . . . I heard bones break” and
landed “[o]n my back.” Mason Dep. 73:20-74:10.
Plaintiff fractured his ankle in the fall. Mason Dep.
asked whether he saw ice on the sidewalk before he
encountered it, plaintiff testified that “[t]here was
ice everywhere.” Mason Dep. 72:3-8. Plaintiff also
testified that the ice on which he slipped had been on the
sidewalk continuously from a storm the previous week and that
he had observed the ice there daily. Mason Dep. 13:19-14:7,
15:15-20, 17:4-21, 83:1-84:22. The previous storm took place
on January 12, 2015; 0.63 inches of precipitation fell in the
Philadelphia area during that storm. SOF ¶ 5; Pl.'s
Resp. to SOF ¶ 5 (Document No. 29, filed Dec. 14, 2016).
There was no recorded precipitation in the Philadelphia area
between January 13th and January 18th. Id.
testified that, as plaintiff lay on the ground, he was
positioned under a downspout on the side of the apartment
building and that water was flowing from the downspout.
Keetin Dep. 18:1-8. Keetin explained that she saw what caused
plaintiff's fall and that “[i]t was slippery. I saw
some ice and there was also-the drainpipe had a lot of water
rushing out of it.” Keetin Dep. 46: 1-7. Before January
18th, Keetin had observed that the downspout created a puddle
of the water on the sidewalk when it rained. Keetin Dep.
16:1-9. Plaintiff did not observe the downspout on the day of
his fall. Mason Dep. 97:12-17. Before January 18th, plaintiff
had noticed that the downspout was not feeding directly into
the nearby drain, but had not observed any water draining
from the downspout. Mason Dep. 98:9-99:4. A few weeks after
his fall, plaintiff observed water flowing from the downspout
onto the sidewalk and into the area in which he fell,
“causing more ice than in other parts of the
area.” Mason Dep. 87:19-24, 96:20-97:17.
apartment building was owned by defendant SBSP and managed by
defendant Brandywine. Compl. ¶¶ 3-4; Am. Answer
¶¶ 3-4; Stipulation at 1. Brandywine provided the
daily maintenance for the apartment building, which included,
inter alia, snow and ice removal for the area in
which plaintiff fell and the maintenance of exterior drains.
Pl.'s Resp. Ex. 6, (“Stringer Dep.”)
38:11-16; 101:12-102-16. As part of the snow and ice removal
process, Charles Stringer, Brandywine's regional
maintenance supervisor, testified that Brandywine employees
apply calcium to the sidewalks after clearing snow or ice but
do not apply any calcium or salt prior to a snow or ice
storm. Stringer Dep. 72:11-24, 73:13-24. According to
Brandywine's payroll detail for January 1st to January
18th, a Brandywine employee was on the property each day from
January 12th to January 16th, but not on January 17th or
January 18th. Pl.'s Resp. Ex. 10, at 2. On January 12th,
Brandywine employee Charles Heston spent thirty minutes on
“Snow Removal” at the apartment building
property, and the “Comments” section for that
entry states “Spread calcium on
sidewalk/courtyard.” Id. There is no evidence
of snow or ice removal on January 18th.
explained that, after snow or ice removal, he generally
“[went] past all the [Old City] properties [managed by
Brandywine] once the day was done” to ensure that the
snow and ice removal had been done. Stringer Dep.
76:17-77:15. There is no written documentation of those
inspections. Stringer Dep. 35:8-11, 35:24-36:15. Bruce
Fulmer, Brandywine's senior property manager, testified
that he would also inspect the property after snow removal
was completed, but there is no written documentation of those
inspections. Pl.'s Resp. Ex. 7 (“Fulmer
Dep.”) 25:2-23. There is no evidence that the apartment
building property was inspected by Stringer or Fulmer on
January 12th or January 18th.
point in the winter of 2014-2015, Stringer was aware that a
“pipe” located near Bank Street and Elbow Lane
was not directing water into a drain. Stringer Dep.
96:8-97:4. Stringer testified that a section of that pipe was
replaced by a Brandywine employee. Stringer Dep. 97:9-23.
There is no other evidence of when this pipe was replaced.
The only reference to a downspout or pipe in the Brandywine
payroll detail provided to the Court is an entry stating that
Brandywine employee Heston spent thirty minutes on
“Maintenance” at the apartment building property
on January 12th. Pl.'s Resp. Ex. 10, at 2. The
“Comments” section for that entry states
“Reattach elbow to downspout.” Id. There
is no evidence of the location of that downspout.
to plaintiff's expert, John Allin, defendants failed to
meet commercial property maintenance standards and
Philadelphia Code requirements when they “failed to
effectively clear the subject sidewalk area at the [apartment
building] of ice.” Pl.'s Resp. Ex. 10, at 9, 19. In
pertinent part, Chapter 10, § 10-720 of The Philadelphia
Code states that “[t]he owner, agent and tenants of any
building or premises shall clear a path of not less than 36
inches in width on all sidewalks abutting the building or
premises within 6 hours after the snow has ceased to fall.
The path shall be thoroughly cleared of snow and ice.”
Allin also opined that defendants failed to meet commercial
property maintenance standards when they “failed to
properly use salt or other appropriate deicing . . .
materials” prior to the onset of a snow or ice event,
and that defendants should have “utilized pretreatment
options, ” including “pretreat[ing] the sidewalks
with appropriate deicing material in advance of the freezing
drizzle” on January 18th. Pl.'s Resp. Ex. 10, at 9,
Court will grant summary judgment if “the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). A fact is material when it
“might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is ...