Reinoso, G. v. Heritage Warminster SPE ( 2015 )


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  • J-E02003-14
    
    2015 Pa. Super. 8
    GUADALUPE REINOSO & EDMUNDO                           IN THE SUPERIOR COURT OF
    DOMINGUEZ, H/W                                              PENNSYLVANIA
    Appellant
    V.
    HERITAGE WARMINSTER SPE LLC
    V.
    KOHL'S DEPARTMENT STORES, INC. T/A
    KOHL'S AND LOTS & US, INC.
    No. 3174 EDA 2012
    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: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
    ALLEN, J., OTT, J., WECHT, J., STABILE, J., and JENKINS, J.
    DISSENTING OPINION BY OTT, J.:                         FILED JANUARY 14, 2015
    Because I do not believe the trial court committed an error in granting
    summary judgment1 by determining the 5/8 inch misalignment between
    sidewalk blocks was, as a matter of law, a trivial defect, I respectfully
    dissent.
    The standard used to evaluate the nature of a defect has been
    succinctly set forth as follows:
    ____________________________________________
    1
    The majority has set forth the well-known standard for review of a grant of
    summary judgment.
    J-E02003-14
    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 determination that a defect may be deemed trivial as a matter of
    law 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.
    The notion that sidewalks are inherently imperfect, containing defects
    that might cause a person to fall, but are nonetheless not actionable, has
    been explained in a common sense manner:
    To impose a burden of liability on either municipality or property
    owner for an imperfection as common and usual as that relied on
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    to create liability in this case [a hole two inches wide and one
    inch deep] would put an intolerable burden on the property
    owner and the city…
    German v. City of McKeesport, 
    8 A.2d 437
    (Pa. Super. 1939).2
    Thus, the legal basis upon which a defect is deemed trivial and non-
    actionable recognizes that even a trivial defect could cause a person to trip,
    and indeed, was formulated through cases in which the plaintiff in each
    instance claimed to have fallen and suffered injury.       However, recognition
    that the defect was a tripping hazard, by itself, is not determinative of the
    question whether the defect presents a question for the jury.
    The determination of whether the defect is trivial must be considered
    in light of the duty owed to, in this case an invitee, by the possessor of the
    land.    This duty is set forth in the Restatement (Second) of Torts, § 343,
    which states, in relevant part:
    A possessor of land is subject to liability for physical harm
    caused to his invitee by a condition of the land if, but only if, he
    (a) knows or by the exercise of reasonable care would
    discover the condition, and should realize that it involves
    an unreasonable risk of harm to such invitees
    ____________________________________________
    2
    This “common and usual” concept appears in case law through the years,
    including Alston v. Commonwealth and PennDOT, 
    20 Pa. D. & C. 5th
    49
    (2010), aff’d, 
    31 A.3d 331
    (Pa. Cmwlth. 2011)(unpublished memorandum).
    In Alston, a 5/8 inch height differential was determined to be trivial as a
    matter of law. The trial court noted the factual admission by the City of
    Philadelphia that there are thousands of elevation differences of less than
    one inch on the sidewalks of Philadelphia. Alston, 
    20 Pa. D. & C. 5th
    at *5.
    While the holding in Alston is not binding on our Court, the factual
    admission is enlightening.
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    Restatement (Torts) 2d, § 343(a) (emphasis added).
    Although the duty owed to an invitee is the highest duty imposed upon
    a landowner. See Charlie v. Erie Ins. Exchange, 
    100 A.3d 244
    , 254 (Pa.
    Super. 2014), the standard for determining liability, based upon the nature
    of the defect, is the same regardless of whether the complainant is an
    invitee or licensee. See Restatement (Second) of Torts, §§ 342(a), 343(a).
    The determining factor for landowner liability is whether the condition
    represents an “unreasonable risk of harm.” 3
    With these standards and principles in mind, I examine the specific
    circumstances of the incident, as required by our Supreme Court. 
    Breskin, supra
    .
    I quote the entire statement of the accident as related by Reinoso in
    her brief.
    On May 15, 2009, Plaintiff Guadalupe Reinoso, date of birth
    August 1, 1948, fell and was injured while walking on the
    defendant’s sidewalk. At the time of the accident, the plaintiff
    was wearing flat shoes. She was at the location of the accident
    serving as a volunteer for a charitable cause known as “Child of
    Yours,    A    Program     to    Benefit    Abused    Children.”
    The defendants have admitted that they owned, managed,
    maintained and/or were the landlord of the Warminster Town
    Center which is located at 918 West Street Road, Warminster,
    PA 18974. On the property is the shopping center and sidewalk
    where Mrs. Reinoso fell. At the time of the accident, plaintiff was
    ____________________________________________
    3
    Because the only issue before us is whether the defect represented an
    unreasonable risk or was trivial, we need not be concerned about the other
    aspects of the landowner’s duty to an invitee.
    -4-
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    walking with her granddaughter, holding hands and when they
    arrived at a point where the sidewalk was lifted, both plaintiff
    and her granddaughter tripped and fell. Plaintiff testified further
    that she tripped over the elevated portion of the sidewalk
    causing her to fall.
    Reinoso Brief, at 6.
    Thus, the relevant factual history, as related by Reinoso, is that she
    was walking with her granddaughter, while wearing flats, and she tripped
    and fell over an uneven portion of the sidewalk. She does not report that
    the sidewalk was crowded, and her deposition states that she tripped in the
    late afternoon and that it was sunny. See Reinoso Deposition, 11/1/2011,
    at 17.
    However, Reinoso complains that the trial court failed to account for
    the fact that her expert concluded that the 5/8 inch change in height (the
    defect) was well above the 1/4 inch tripping hazard described in various
    standards and codes.         The expert also claimed, “The defect was not
    highlighted in any way.” See Expert Report at 8. However, that statement
    is clearly belied by the photograph attached to the expert report, where the
    height difference is demonstrated by a dark line running precisely through
    the spot where Reinoso indicated she fell. Additionally, the owner of Lots N’
    Us, one of the co-defendants, had expressed his concern prior to the
    incident that the defect constituted a tripping hazard. The majority agrees
    that it was error for the trial court to ignore these “additional facts,” and
    therefore, the issue of liability was properly for a jury to determine.
    -5-
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    I do not believe these “additional facts” negate the trial court’s
    determination that the defect was trivial.   The co-defendant merely stated
    his non-expert opinion that the defect represented a tripping hazard. The
    expert opined the defect constituted a tripping hazard and attached a
    specific height, 1/4 inch, to define a tripping hazard. However, our Supreme
    Court has prohibited the introduction of a “definite or mathematical rule.”
    See 
    Breskin, supra
    .      Because a trivial defect can cause a trip and fall
    without imposing liability, what is determinative is whether the defect posed
    an unreasonable risk of harm to Reinoso.
    A review of trip and fall cases in which a height difference in sidewalks
    or walkways was a factor provides context for this 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.
    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, supra
    , a two inch wide, one inch deep irregularity, filled with
    -6-
    J-E02003-14
    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.
    In the cited cases where a trivial defect was found, 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 had other gaps or
    defects in the walkway, or the hazard was otherwise hidden. None of those
    additional 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. Furthermore,
    the height differentials in those cases were all greater than the 5/8 inch
    differential presented instantly.4
    Additionally, Reinoso’s expert noted that defects similar to the one at
    issue were common to the area and were, at least partially, caused by the
    root systems of the trees that were planted next to the sidewalks.         See
    Expert’s Report at 7, 8, 11-13.                It is a situation common to the
    urban/suburban experience, where trees are routinely planted next to
    sidewalks.     I would submit this aspect of the expert report echoes the
    ____________________________________________
    4
    I do not intend to suggest that a height difference alone can never be
    sufficient to overcome designation as a trivial defect. Case law is clear that
    all such determinations must be made on a case-by-case basis.
    -7-
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    appellate courts’ continuing discussion of the common and usual defects
    found on sidewalks.
    Our Supreme Court and the Restatement both permit the trial court to
    make a determination that certain defects are too trivial to impose legal
    liability upon the landowner, regardless of the fact the defect caused a
    person to trip and fall.5
    Guided by the above discussed case law, I conclude the trial court did
    not commit an error of law in determining the 5/8 inch height differential, an
    undisputed fact, without any other relevant attendant circumstances,
    represents the type of common and usual defect inherently found in
    sidewalks that makes such defect obviously trivial as a matter of law.
    Reinoso presented no facts, other than the height difference, to support her
    claim the sidewalk had been negligently maintained.    Our Court’s decision in
    German v. City of 
    McKeesport, supra
    , also stated:
    There are certain reasonable risks that every person who uses
    city streets must assume as inconveniences to be set off against
    the advantages of city life (Morris v. 
    Philadelphia, supra
    [
    45 A. 1068
    (Pa. 1900)]), and this case presents one of them.
    
    Id., 8 A.2d
    at 441. I believe that statement applies herein.
    Accordingly, I respectfully dissent.
    ____________________________________________
    5
    I believe, given the evidentiary record presented herein, the majority
    decision makes it virtually impossible for a trial court to determine a defect
    is trivial and be upheld. This result would effectively overrule existing case
    law upon which the trial court is entitled to rely in granting summary
    judgment.
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    President   Judge   Emeritus   Bender   and   Judge   Shogan   join   this
    dissenting opinion.
    -9-