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Mason v. Brandywine Construction and Management, Inc.

United States District Court, E.D. Pennsylvania

March 27, 2017

CLYDE MASON, Plaintiff,
v.
BRANDYWINE CONSTRUCTION AND MANAGEMENT, INC., and SOUTH BANK STREET PROPERTIES, L.P., Defendants.

          MEMORANDUM

          DUBOIS, J.

         I. INTRODUCTION

         This is 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.[1] 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).[2] For the reasons that follow, defendants' Motion is granted in part and denied in part.

         II. BACKGROUND

         The 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.

         Plaintiff 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. 101:15-18.

         When 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.

         Keetin 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.

         The 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.

         Stringer 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.

         At some 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.

         According 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, 19.

         III. APPLICABLE LAW

         The 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 ...


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