Tuesday, January 20, 2015

Summary Judgment Entered in Carbon County Trip and Fall Case

In his recent September 30, 2014 decision in the case of Rochow v. Neast, No. 12-CV-0737 (C.P. Carbon Co. Sept. 20, 2014 Serfass, J.), Judge Steven R. Serfass, of the Carbon County Court of Common Pleas, granted summary judgment to a Defendant property owner in a trip and fall case involving a hole in steps on the premises.  

In this matter, the evidence before the court on summary judgment revealed that the Plaintiff had visited the Defendant’s property between 20-52 times prior to her fall.   Moreover, the Plaintiff had previously used the subject steps between 40-104 times.  She admittedly noticed the subject hole on the steps on the first time she visited the property.   The Plaintiff also admitted in her deposition that she understood that there was the potential for “some sort of accident” if she did not watch while she was going while on those steps.  

The Plaintiff additionally admitted at her deposition to observing the subject hole on the steps while entering the Defendant’s property on the day of her fall.  She also admitted that, while coming down the steps at the time of her fall, she was zippering her jacket and not looking down at the steps.  

The Plaintiff argued in her Brief in Opposition to the Defendant’s Motion for Summary Judgment that, while she acknowledged being aware of the hole on the steps and that she might possibly be injured, there was no evidence that she knew of the actual risk involved, i.e., suffering multiple fractures.  

Although the court’s Order in this matter granting the Defendant’s Motion for Summary Judgment was by Order, Judge Serfass did include a detailed footnote outlining the rationale for his Opinion.  

In granting the Motion for Summary Judgment, Judge Serfass relied primarily on the Restatement (Second) of Torts §342 which provides that a possessor of land is subject to liability for physical harm to a licensee caused by a condition on the land only if:  

(a)        the possessor knows or has reason to know if the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or      realize the danger;

 (b)        he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved; and,

(c)        the licensee does not know or have reason to know the condition and the risk involved.  

As noted above, the Plaintiff was attempting to maneuver around the Motion for Summary Judgment by asserting that neither she nor the possessor of land were aware of the specific risk involved.  

Relying upon Pennsylvania Superior Court precedent, Judge Serfass stated that “the fact that Plaintiff argues that she was not aware of the severity of the potential injuries that could be sustained as a result of falling from “Defendant’s steps is of no consequence in determining whether she has satisfied the third element of §342.”

Here, the Plaintiff admitted that she knew of the existence of the hole from the first time she visited the premises and that she knew she could potentially fall if she did not pay attention to where she was stepping.   Judge Serfass noted that precedent supported his conclusion that where a Plaintiff admits to knowing the potential risk associated with the conditions on the Defendant’s property, the requirements of the Restatement (Second) of Torts §342 were satisfied.  

Stated otherwise, “although Plaintiff may not have known that she would have sustained the exact injuries she ultimately did, she knew that the condition of the steps posed a danger of causing one to fall.”  

On this basis, the court granted the summary judgment Motion filed by the Defendant, finding that the Plaintiff could not satisfy the third element of §342 noted above.  

It is noted that the prevailing defense attorney in this matter was Attorney Chris Carling, in-house counsel in the Moosic, Lackawanna County, Pennsylvania office of Travelers Insurance Company.  

Anyone wishing to review this trip and fall decision of Rochow v. Neast out of Carbon County may click this LINK.

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