Thursday, September 16, 2010

Superior Court Reverses Trial Court's Grant of Summary Judgment Based Upon Trivial Defect Doctrine in Trip and Fall Case

You may recall that I previously reported on the Pike County Court of Common Pleas Decision on granting summary judgment to the Defendant under the trivial defect doctrine in the case of Melchiorre v. Lord's Valley Xtra Mart back in June of 2009.

That decision was appealed by the Plaintiff and, on September 8, 2010, the Pennsylvania Superior Court handed down its “non-precedential decision” reversing the trial court granting of summary judgment in a 2 to 1 decision. See Melchiorre v. Lourdes Valley Xtra Mart, No. 2038 E.D.A. 2009 (Pa. Super. Sept. 8, 2010, Gantman, Shogan, and Mundy, J.J.) (Gantman, J., dissenting).

In its non-precedential opinion, the Superior Court quoted extensively from the case Mull v. Ickes, 994 A.2d 1137 (Pa. Super. 2010) for the law surrounding trivial defects.

The Superior Court's Opinion reminds us that Melchiorre involved a plaintiff who tripped on the lip of a concrete pad that was surrounded by asphalt at a gas station. The trial court in Pike County had ruled that, based upon its review of the record and the photographs, “the one inch deviation is clearly trivial, and that, as a matter of law, [the defendants] were not negligent for permitting its existence.”

The Superior Court disagreed and noted that, its review of the records, in a light most favorable to the non-moving Plaintiff, compelled the conclusion “that the defect in this matter was not so trivial as to authorize summary judgment as a matter of law.”

The Superior Court noted that the deviation between the concrete pad and the surrounding asphalt, as depicted in the photographs, reflected that the 1-inch variation was not consistent around the concrete pad, but rather, the difference between the asphalt and concrete in other areas of the concrete pad may have been more or less than one inch at different places. Accordingly, the Superior Court found that the evidence established “that the defect was not obviously trivial as there is no definite or mathematical rule that determines when a defect is trivial.”

Finding that the evidence was sufficient to establish genuine issues of material fact that must be resolved by a jury, the Superior Court reversed the entry of summary judgment and remanded the case back to the Pike County Court of Common Pleas for further proceedings. As noted, Superior Court Judge Gantman dissented from this decision without any opinion.

I thank the prevailing plaintiff’s attorney, Gene Goldenziel of the Scranton law firm of Needle, Goldenziel, & Pascale, for forwarding this unpublished decision to my attention.

Anyone desiring a copy of this opinion, may contact me at

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