Monday, May 24, 2010

Pennsylvania Superior Court Addresses Trivial Defect Case

In the recent case of Mull v. C.S. Ickes, Jr., 2010 WL 1758567 (Pa. Super. May 4, 2010 Freedberg, J.), the Superior Court reversed the entry of summary judgment in favor of the defendants, finding that the defect in their sidewalk was not so obviously trivial as a matter of law to dismiss the case against the defendants and prevent it from getting to the jury.

In Mull, the Plaintiff was walking on the sidewalk in front of defendants' insurance agency, intending to enter to visit a friend of hers who was employed there. The lived across the street from the building, had visited her friend on numerous occasions before and was therefore familiar with the premises.

On the day of the incident, the snow had fallen but did not cover a 2 inch gap between slabs of sidewalk in the area of the Plaintiff's fall. The Plaintiff testified that she was caused to fall by the alleged defect in the sidewalk as opposed to the snow. The Plaintiff allegedly sustained an ACL tear, an ankle sprain, a lateral meniscus tear and a contusion to her left knee.

Plaintiff sued and defendants moved for summary judgment, contending that the defect in the sidewalk was trivial as a matter of law. The trial court agreed. The judge also relied on the fact that the Plaintiff lived across the street from defendants' premises, and had visited her friend at the agency for seven years with no prior issues. The Plaintiff appealed and the Superior Court reversed.

In doing so, the Superior Court noted that there was no definite formula to determine whether the defect was trivial as a matter of law. Thus, if the defect was not obviously trivial, the question of negligence had to be submitted to the jury.

Here, the gap measured approximately two inches, and there was a difference in height of approximately one-and-one-half inches between the slabs of concrete that surrounded the gap. The slab sloped towards defendants' building, and the gap was in the direct line of travel of one entering the building.

Viewing this evidence in favor of Plaintiff as required under the standard of review, the Superior Court held that the defect was not indisputably trivial. The court also noted that, given its position on the path to defendants' building, plaintiff had presented sufficient evidence to establish a genuine issue of material fact as to whether the defect was trivial or not.

As stated, the summary judgment entered in defendants' favor was reversed. While the Plaintiff prevailed under the facts presented, this Superior Court decision stands for the proposition that the trivial defect doctrine remains a valid defense in the Commonwealth of Pennsylvania.



To view the entire Mull decision, click on this link: http://www.courts.state.pa.us/OpPosting/Superior/out/a11034_10.pdf


Source: Pennsylvania Law Weekly Case Digests

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