Summary Judgment Granted in Alleged Trip and Fall Case Based on Trivial Defect Doctrine

In the case of Klobusnik v. Cafaro Company, No. 2021-CV-11132 (C.P. Erie Co. Dec. 31, 2024 Walsh, J.), the court granted the Defendant mall summary judgment in a slip and fall case.

According to the Opinion, the Plaintiff was walking on the premises and alleged that her foot hit the edge of a lifted tile on the floor which allegedly caused her to fall down.

After reviewing the record before it, the court noted that the Plaintiff presented photographic evidence purportedly showing a raised tile in the area where she fell. However, the Plaintiff admitted that she did not know exactly where she fell. The Plaintiff asserted that she tripped over the tile in the photograph or a similar tile.

The record revealed that the photograph of the tile in question showed a ruler with both metric and imperial units stationed in the grout line between two (2) tiles. The imperial measurement was below the “0” inch line. The metric measurement was at the “1” millimeter line.

As such, the court granted summary judgment after finding that the Plaintiff’s claims were barred by the trivial defect doctrine. The court also found that the Plaintiff’s claims were barred by the fact that the Plaintiff could not identify the exact tile that caused her to fall. The court noted that the evidence fairly suggested that it was just as likely that the Plaintiff had tripped over the grip of her own shoe on the tile, as opposed to catching her foot on the edge of an allegedly raised tile.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney William C. Wagner of the Erie, PA law firm of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott, LLC for bringing this case to my attention.

Source of image:  Photo by Mitchell Luo on www.unsplash.com.

Summary Judgment Denied in Premises Liability Case Brought by Jogger in Which Defense Alleged Trivial Defect with Sidewalk

In the case of Jennings v. Garner, No. CV 2021-CV-00391 (C.P. Lyc. Co. Feb. 2, 2024 Carlucci, J.), the court addressed a Defendant’s Motion for Summary Judgment in a case filed by a Plaintiff who had allegedly tripped and fallen on the Defendant’s uneven sidewalk while jogging at night.   

The Defendant asserted that the alleged 2-inch defect in the sidewalk was a trivial defect and that no duty rested upon the Defendant to correct the same.  The Defendant additionally asserted that the Plaintiff assumed a risk of injury by jogging at night.   

The court denied summary judgment after finding that, as a matter of law, a 2-inch defect in the sidewalk was not a trivial defect as asserted by the defense.   

The court additionally noted that the degree of assumption of risk by the Plaintiff was a matter to be resolved by the jury because it was certainly not 100% against the Plaintiff. 

Anyone wishing to review a copy of this decision may click this LINK.

Source:  The Legal Intelligencer Common Pleas Case Alert at Law.com (April 17, 2024). 

Source of imaging: Photo by Lara Jameson on www.unsplash.com.

Plaintiff's Shot at Kohl's Cash Stays Alive -- Summary Judgment Denied

In the case of Debo v. Kohl’s, Inc., No. 2:21-CV-00811-MJH (W.D. Pa. Feb. 8, 2024 Horan, J.), the court denied summary judgment in a trip and fall case.

According to the Opinion, the Plaintiff had parked in a Kohl's department store parking lot and began to walk to the store.  As she made her way from the parking lot surface and onto an entrance ramp that led to the store, the toe part of her shoe caught on an elevated section of the walking surface, allegedly causing her to fall.   

In so ruling, the court noted that Pennsylvania law does not recognize any bright dividing line between trivial and non-trivial defects on a landowner’s land.

In this case, the court could not say, as a matter of law, that a pavement height differential between one half and one inch was de minimis as asserted by the Defendant store.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Trivial Defect Doctrine Found Not To Apply on Private Property

In the case of Ramsey v. Buchanan Auto Park, Inc., No. 1:16-CV-01879-CCC (M.D. Pa. March 7, 2022 Connor, J.), the court granted in part and denied in part, post-trial motions in a slip and fall case after a verdict was entered in favor of the Plaintiff.

In one notable ruling, the court held that the trivial defect jury instructions that were developed in the context of public sidewalks was not applicable in the context of alleged defects on private property that allegedly injured business invitees.

The court noted that, in any event, this topic of liability was adequately covered by the jury instructions under which the jury was advised that, in order for the Plaintiff to recover, the property must have a condition which amounted to an unreasonable risk of harm to the Plaintiff.

This decision is also notable in that the Court found that photographs of the area where the Plaintiff fell that were taken in 2017 were admissible even though there were slight variations in the conditions of the area since the Plaintiff's 2014 fall down event.  The Court noted that the photos were authenticated by a witness and that any variations were pointed out to the jury by the witness and in the jury instructions.  

The court otherwise noted that damages for lost wages awarded by a jury is not necessarily excessive merely because the award exceeds the amount of the worker’s compensation lien. The court noted that the lien is not a cap on the Plaintiff’s claim for past wage loss.

However, the court did find that the award entered by the Plaintiff for the Plaintiff’s claim for loss of future earnings was against the weight of the evidence where the Plaintiff failed to present any evidence in this regard.

The court ordered a new trial on the issue of damages after finding that the jury may have erroneously included non-economic damages in its future earnings award.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order can be viewed HERE


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reid Smith law firm for bringing this case to my attention.

Summary Judgment Based Upon Trivial Defect Doctrine Denied

In the case of Krieitzer v. Madison Acquisitions, LLC, No. 10767 of 2016, C.A. (C.P. Lawr. Co. April 9, 2020 Hodge, J.), the court denied a Defendant’s Motion for Summary Judgment in a trip and fall case in which the Defendants alleged that the defect to the sidewalk was a trivial defect.

According to the Opinion, the Plaintiff fell on a sidewalk located on the Defendant’s premises and allegedly sustained injuries as a result. The Plaintiff sued the Defendants maintaining that the Defendants were negligent in failing to keep the sidewalk in good repair or otherwise failing to warn business invitees of any dangerous conditions. 

The Defendants filed a Motion for Summary Judgment and asserted that the trivial defect doctrine defeated the Plaintiff’s claims. 

The court reiterated the rule of law that a sidewalk defect could be found to be so trivial that a court, as a matter of law, could hold that a property owner was not negligent in allowing its existence. However, the court stated that there was no mathematical or bright-line rule in determining whether the depth of size of a sidewalk depression resulted in liability to a property owner. 

The court noted that, generally speaking, questions as to whether a sidewalk defect was trivial and whether the Defendant was negligent in allowing for the same to exist were typically to be submitted to the jury’s consideration. 

The Opinion noted that photographs of the unevenness with the sidewalks showed a gap of approximately an inch and a half. 

The court allowed this case to proceed to a jury based upon sufficient factual issues existing in the records to preclude the entry of summary judgment. 

Anyone wishing to review a copy of this case may click this LINK. 

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (May 26, 2020).

Supermarket's Motion for Summary Judgment Denied in Trip and Fall Case

In the case of Jenkins v. Krenitsky’s Supermarket Corp., No. 17-CV-1489 (C.P. Lacka. Co. April 15, 2020 Nealon, J.), the court denied a supermarket’s Motion for Summary Judgment in a trip and fall case. 

According to the Opinion, a supermarket customer filed this premises liability lawsuit against the supermarket after she fell upon stepping into a parking lot pothole that was located close to the front entrance and sidewalk to the store. 

The Court emphasized that, during her deposition, the Plaintiff described the pothole as “a big hole” that was “pretty wide” and “about two feet long” and deep enough that she “could fee [her] ankles stuck in the hole.” 

Based upon this testimony, the court stated that there were issues of fact with respect to the Defendant’s claim that the pothole amounted to a trivial defect. 

The court also denied the store’s Motion for Summary Judgment based upon issues of fact as to whether the store acted reasonably to protect its customers where there was evidence that revealed that the supermarket did not have any policies governing periodic inspections of his premises, had not charged any of its employees with the duty of inspecting the premises for any dangerous condition, and where the store could not state when its parking lot had last been inspection prior to the fall in question. 

Anyone wishing to review a copy of this decision may click this LINK.

CUMMINS LAW DEFENDS PREMISES LIABILITY MATTERS ALL ACROSS NORTHEASTERN PENNSYLVANIA

The Attorneys at CUMMINS LAW defend Premises Liability matters in all Counties all across Northeastern Pennsylvania.

We pledge to deliver our legal services in the most prompt, efficient and responsive manner possible.

Attorney Cummins is the only insurance defense attorney in all of northeastern Pennsylvania to be selected to appear in The Best Lawyers in America Directory under the category of Personal Injury Defense.   He is also AV-Rated by the Martindale-Hubbell Directory and is a past recipient of the Pennsylvania Defense Institute's "Distinguished Defense Counsel of the Year Award."

Call or write to Dan Cummins today to discuss the defense of your claim:

Phone: 570-319-5899

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ARTICLE: PREMISES LIABILITY UPDATE

Here is a copy of an article of mine that was published in the January, 2020 edition of Counterpoint, the official publication of the Pennsylvania Defense Institute. 

A copy of any of the opinions noted can be secured by typing the case name into the Search Box in the upper right hand corner of the Tort Talk Blog at www.TortTalk.com.  This will take you to the Tort Talk post(s) that review the case searched in which you will find a Link to the Opinion.

PREMISES LIABILITY UPDATE

By

Daniel E. Cummins

Daniel E. Cummins is the managing partner of the Clarks Summit, PA law firm of Cummins Law. He is also the writer of the Tort Talk Blog and provides mediation services through Cummins Mediation.

Dog Bite

In the case of Roegner v. Steezar, No. 2019-CV-929 (C.P. Lacka. Co. Sept. 6, 2019 Nealon, J.), the court addressed Preliminary Objections filed by a dog owner in a dog bite case in which the Defendant filed a demurrer seeking to dismiss the action on the grounds that the allegations of the Complaint were legally insufficient to state a claim of negligence against the dog owner. 

According to the Opinion, the Plaintiffs were the guests at the property of the Defendants, Joseph Steezar and Maryellen Steezar, when the Plaintiff was suddenly attacked by a pit bull that was owned by Defendant, Ryan Steezar.

The Plaintiffs filed a premises liability claim against the Steezars and further asserted that Ryan Steezar engaged in negligent conduct, careless conduct, gross, wanton, and reckless conduct for failing to adequately control the pit bull when he knew or should have known that the dog had a tendency to attack and had dangerous propensities. The Plaintiff additionally alleged that Ryan Steezar had violated the dog law by failing to properly confine, secure or control his dog and/or by harboring a dangerous animal. 

The Defendant dog owner filed a demurrer asserting that Pennsylvania law establishes that no absolute liability may be imposed upon a dog owner for injuries caused by dogs. Rather, proof of the owner’s negligence is required, such as showing that the owner had prior knowledge of the dog’s vicious propensities. 

The Defendant asserted a demurrer indicating that the Plaintiff’s Complaint contained no allegations which would allow for the imposition of liability under Pennsylvania law for the Plaintiff’s alleged injuries. 

The court agreed with the Defendant that the mere ownership of a dog does not subject a dog owner to absolute liability for injuries caused by the dog. 

Judge Nealon referred to the settled law that provides that, for a victim of a dog bit to establish negligence on the part of the dog’s owner, the victim must prove that (1) the dog had dangerous propensities; (2) the owner knew, or had reason to know, that the dog had those dangerous propensities; and (3) the owner failed to exercise reasonable care to secure or control the dog so as to prevent it from injuring another person. 

The court additionally stated that a dog’s dangerous propensity is determined by the dog’s behavior rather than its breed. It was also noted that a large overly-friendly dog that jumps on to people may be considered to be judged as dangerous as a vicious dog. 

Under Pennsylvania law, there is no distinction between an animal that is dangerous and viciousness and one that this merely dangerous from playfulness. 

Accepting the Plaintiff’s allegations in the Complaint as true as required by the standard of review for a demurrer, the court found that Plaintiff had stated a cognizable cause of action in negligence against the dog owner. 

As such, the demurrer was denied and the court suggested that the Defendant could revisit the issue once discovery is completed.

Trivial Defect Doctrine

In the case of McKenzie v. Wal-Mart, No. 1540-CV-2018 (C.P. Monroe Co. Oct. 18, 2019 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted a Defendant store’s Motion for Summary Judgment in a trip and fall case.

According to the Opinion, during the afternoon hours of October 3, 2017, the Plaintiff was walking from his vehicle to the store when he tripped and fell in the parking lot due to an alleged defect in the seam between the sidewalk and a raised curb. The alleged defect was a gap that was estimated to be somewhere between one and a quarter inches wide, one and a half inches deep, and running the length of the sidewalk.

The defense filed a Motion for Summary Judgment arguing that the Plaintiff was unable to show that there was any defeat to the walking surface or that any alleged defect that was allegedly present was a trivial defect.

In response, the Plaintiff asserted that the triviality of a defect is a question of fact that should be put to the jury.

Judge Williamson pointed to Pennsylvania cases that reviewed the trivial defect doctrine and in which it had been held that an elevation, depression, or irregularity in a sidewalk may be so trivial that the court, as a matter of law, is bound to hold that there is no negligence in permitting it to exist. He also noted that the courts have held that there is no definite or mathematical rule that can be laid down as to the depth or size off a sidewalk depression necessary to give rise to liability on a landowner.

After reviewing prior decisions out of Monroe County involving similar facts, Judge Williamson noted in this McKenzie case that, reviewing the evidence in a light most favorable to the Plaintiff, summary judgment was appropriate as the circumstances surrounding the alleged defect did not rise to support any finding of negligence. The court noted that the gap at issue was clearly visible, not overly large, and appeared to be a part of the design of the sidewalk.

Slip and Fall

In the case of Elliot v. Cinemark USA, Inc., 5550-CV-2017 (C.P. Monroe Co. Oct. 4, 2019 Williamson, J.), the court entered summary judgment in favor of a movie theater in a slip and fall matter after finding that the Plaintiff did not establish that the Defendant had actual or constructive notice of the existence of a dangerous condition.

According to the Opinion, the Plaintiff went to the Defendant’s theater in the early afternoon hours to see a movie. While walking near a self-serve condiment station in the lobby, the Plaintiff slipped and fell. The Plaintiff alleged that she slipped and fell on a spill of popcorn butter.

According to the evidence in the case, the Defendant admitted that the self-serve condiment area was known to become messy quickly such that it was the theater’s policy to clean the area every thirty (30) minutes. The Plaintiff alleged that this policy was inadequate.

The Plaintiff had testified that the floor was wet and greasy when she fell. Another witness testified to the existence of a couple of drops of some substance, about the size of a quarter, approximately three (3) feet from the counter.

The Defendant’s employees testified that they performed the required half-hour checks at the condiment station. The Defendant also provided documentation to show that the various cleaning tasks had been completed that afternoon.

Based upon the record before the court, the judge ruled that the Plaintiff did not establish that the Defendant had any actual or constructive notice of any dangerous condition. As such, summary judgment was entered in favor of the theater.

Trivial Defect Doctrine Serves to Defeat Monroe County Trip and Fall Case

In the case of McKenzie v. Wal-Mart, No. 1540-CV-2018 (C.P. Monroe Co. Oct. 18, 2019 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted a Defendant store’s Motion for Summary Judgment in a trip and fall case.

According to the Opinion, during the afternoon hours of October 3, 2017, the Plaintiff was walking from his vehicle to the store when he tripped and fell in the parking lot due to an alleged defect in the seam between the sidewalk and a raised curb. The alleged defect was a gap that was estimated to be somewhere between one and a quarter inches wide, one and a half inches deep, and running the length of the sidewalk.

The defense filed a Motion for Summary Judgment arguing that the Plaintiff was unable to show that there was any defeat to the walking surface or that any alleged defect that was allegedly present was not a trivial defect.

In response, the Plaintiff asserted that the triviality of a defect is a question of fact that should be put to the jury.

Judge Williamson pointed to Pennsylvania cases that reviewed the trivial defect doctrine and in which it had been held that an elevation, depression, or irregularity in a sidewalk may be so trivial that the court, as a matter of law, is bound to hold that there is no negligence in permitting it to exist. He also noted that the courts have held that there is no definite or mathematical rule that can be laid down as to the depth or size off a sidewalk depression necessary to give rise to liability on a landowner.

After reviewing prior decisions out of Monroe County involving similar facts, Judge Williamson noted in this McKenzie case that, reviewing the evidence in a light most favorable to the Plaintiff, summary judgment was appropriate as the circumstances surrounding the alleged defect did not rise to support any finding of negligence. The court noted that the gap at issue was clearly visible, not overly large, and appeared to be a part of the design of the sidewalk.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to attorney Paraskevoula Mamounas, Esquire of the Allentown, Pennsylvania office of Thomas, Thomas & Hafer, LLP for bringing this case to my attention.

Pennsylvania Superior Court's Latest Take on the Trivial Defect Doctrine

The Pennsylvania Superior Court revisited the Trivial Defect Doctrine most recently in the case of Reinoso v. Heritage Warminster SPE LLC,  2015 Pa. Super. 8, No. 3174 EDA 2012 (Jan. 14, 2015 Stabile, Ford Elliott, Bowes, Allen, Wecht, Jenkins, J.)(Ott, Bender, Shogan, J., dissenting)

The Court reversed a trial court's entry of summary judgment in favor of a defendant possessor of land.  The trial court had ruled that a 5/8 inch differential  was indeed a trivial defect. 

Reiterating the law that there is no bright line rule as to what constitutes a trivial defect as a matter of law and emphasizing that the Plaintiff produced an expert who opined that the alleged defect exceeded safety standards, the Superior Court reversed the entry of summary judgment, ruling that the issue should be left for a jury to decide.

Anyone wishing to review the Superior Court's majority Opinion in Reinoso may click this LINK.

The Dissenting Opinion, in which the dissenters stated that they would have upheld the trial court's finding that a 5/8 height differential in the sidewalk surface was indeed a trivial defect as a matter of law, can be viewed HERE.


Source of image:  www.mathatube.com

Trivial Defect Doctrine Applied in Lycoming County Trip and Fall Case to Deny MSJ

In the case of Walker v. Community Action Realty, Inc., No. 13-00,418 (C.P. Lycoming Co. Oct. 13, 2014 Gray, J.), Judge Richard A. Gray of the Lycoming County Court of Common Pleas recently denied a Defendant’s Motion for Summary Judgment in a slip and fall case based upon a defense allegation that the Plaintiff failed to identify the specific defect that caused her to fall and because the alleged defect was so trivial that allowing it to exist was not negligent as a matter of law.  

According to the Opinion, the Plaintiff stumbled, trip, and fell down stairs onto a sidewalk outside a building, allegedly sustaining injuries.   At her deposition, the Plaintiff testified that her foot came into contact with a raised portion of the pavement on the porch at the top of the stairs, causing her to trip and fall down the stairs.  

It was undisputed that there was a raised area of the porch surface located a few inches from the front edge of the top step between the doormat and the front step.   An investigative report noted that the irregularity was only about 1/8^th of an inch high.  However, the raised area of the porch surface was located directly in the middle of the steps, which was noted to be a busy, heavily traversed point of primary access into and out of the public building.  

After reviewing the law pertaining to trivial defects in premises liability cases, the court denied the Defendant’s Motion for Summary Judgment after noting that no definite or mathematical rule can be laid down as to the depth or size of a sidewalk defect to determine whether the defect was trivial as a matter of law.  

Judge Richard Gray
Lycoming County

Applying the trivial defect doctrine to the facts before him, Judge Gray reiterated that the defect in question, the existence of which was admitted by the defense, was in the direct line of travel for persons entering and exiting the building.  The court also emphasized that the irregularity in the area where the Plaintiff fell was located right in the middle of where the public would be expected to step before descending the steps out of a busy, heavily traversed public building.  

Judge Gray held that the question of whether or not allowing the defect in question to exist at that location constituted negligence, was a question that should be decided by a jury. 

Judge Gray further found that the Plaintiff’s testimony was sufficient to also raise a question of fact for the jury to determine whether or not the cause of her fall was indeed the defect in question.  

For these reasons, the Defendant’s Motion for Summary Judgment was denied.  

 

Anyone desiring a copy of this Lycoming County decision in the case of Walker v. Community Action Realty, Inc. may contact me at dancummins@comcast.net.

 

Latest Appellate Decision on Trivial Defect Doctrine in Trip and Fall Cases

In its November 20, 2013 decision in the case of Shaw v. Thomas Jefferson University and City of Philadelphia, No. 619 C.D. 2013 (Pa. Cmwlth. Nov. 20, 2013 Brobson, McCullough, and Friedman, J.J.) (Opinion by McCullough, J.), the Commonwealth Court of Pennsylvania reversed the City of Philadelphia’s Summary Judgment in a sidewalk trip and fall over a 2 to 2 ½ inch elevation.  

The court noted that the separate University Defendant had previously filed a Motion for Summary Judgment under the Trivial Defect Doctrine and a defense of a lack of actual constructive notice.  That previous Motion for Summary Judgment had been granted in favor of the University.

The City of Philadelphia followed up with its Motion for Summary Judgment raising the same defenses as the University and also arguing that its motion should be granted under the coordinate jurisdiction rule because the City was only secondarily liable and all claims against the University had been dismissed. 

The City additionally asserted that the Plaintiff has failed to show any evidence of actual constructive notice of the sidewalk defect on behalf of the City.  

The trial court granted the City’s Motion for Summary Judgment and the case was appealed to the Commonwealth Court.  

In its Opinion, the Pennsylvania Commonwealth Court reviewed the Trivial Defect Doctrine under which it has been held that a sidewalk defect may be so trivial that a court must hold, as a matter of law, that the property owner was not negligent in allowing such a small defect to exist.  The Shaw court stated that what constitutes a sufficient defect to hold a property owner liable must be reviewed on a case-by-case basis.  

In reviewing the record before it, the Commonwealth Court agreed with the Plaintiff’s argument that summary judgment should not have been granted because there is no bright-line rule for a court to use in determining whether a sidewalk defect is obviously trivial.   While the court recognized the continuing validity of the Trivial Defect Doctrine, it found genuine issues of material fact to allow this case to proceed on to a jury trial.  

Accordingly, the Commonwealth Court ruled that the granting of summary judgment in favor of the University was in error and, as such, so was the granting of summary judgment in favor of the City Defendant. 

The Commonwealth Court further stated that, since they had finalized the issue before them by way of its decision on the Trivial Defect Doctrine, it did not reach the issues raised with respect to the actual or constructive notice defense.

Ultimately, the case was remanded back to the trial court for further proceedings consistent with the Opinion.  

Anyone wishing to review the Shaw case may click HERE.

Two Recent Premises Liability Decisions of Note from Judge Zulick of Monroe County

 Koeppel v. PNC Bank, N.A.

In his recent decision in the case of Koeppel v. PNC Bank, N.A., PICS Case No. 12-2203 (C.P. Monroe Co. Oct. 11, 2012 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas found that the hills and ridges doctrine barred a Plaintiff’s negligence claim as the Plaintiff failed to present evidence that the Defendants allowed for an accumulation “in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians[.]”  As such, the Defendants’ Motion for Summary Judgment was granted.  

 By way of background the Plaintiffs alleged personal injuries after falling in the parking lot of the PNC Bank in Tannersville, Pennsylvania.   The record before the court was that an ice storm had passed through the area the evening before.  

Judge Zulick noted that the hills and ridges doctrine protects the possessor of land from liability for generally slippery conditions caused by ice and snowfall where the owner has not permitted the ice and/or snow to unreasonably accumulate into ridges and elevations.   It was also noted that, in order for the hills and ridges defense to apply, there must be generally icy or snowy conditions naturally arising in the area and the possessor of land must not have allowed the ice and/or snow to have accumulated into ridges and elevations.   The court emphasized that the accumulation at issue must be the result of an entirely natural occurrence, as opposed to any man made condition, for the defense to apply.  

 In this matter, the Plaintiff argued, relying upon Harvey v. Rouse Chamberlain, Ltd., 901 A.2d 523 (Pa. Super. 2006), that the hills and ridges doctrine did not apply because the accumulation at issue was not a natural occurrence, but rather, was allegedly due to the Defendant’s snow removal efforts prior to her accident.  

 In this matter, Judge Zulick found that the Plaintiff did not bring forth any evidence that the Defendants’ snow removal efforts led to the slippery conditions at issue.   Judge Zulick found the case before him to be more in line with the case of Beck v. Holly Tree Homeowners Ass’n., 689 F.Supp 2d 756 (E.D. Pa. 2001).  In this case, as in Beck, there was no evidence that the ice upon which the Plaintiff fell was formed as a result of any snow plowing efforts by the Defendant.  

 Accordingly, summary judgment was entered in favor of the defense.

This case has been appealed to the Superior Court.

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

Judge Arthur L. Zulick
Monroe County

Yohey v. Crupi

In his recent decision in the case of Yohey v. Crupi, PICS Case No. 12-2201 (C.P. Monroe Co. Oct. 16, 2012 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas entered summary judgment in favor of a Defendant after finding that a one-half inch differential in the elevation of the sidewalk where the Plaintiff fell amounted to only a trivial defect for which the Defendants were not liable under any claim of negligence.   

At the time of the incident, the Plaintiff was leaving a pizza shop under rainy conditions.   Other patrons were running towards the restaurant to escape the rain.  The Plaintiff stepped to the right in order to make room for the oncoming patrons.   As she moved, the Plaintiff stepped on to an uneven portion of the pavement and fell.    

The court noted that, during her deposition testimony, the Plaintiff admitted that she was not looking where she was stepping and did not see what caused her to fall.   However, the Plaintiff’s daughter, who was present at the time of the incident, was able to identify the location of the fall by pointing to a photograph during her deposition  testimony.   The court noted that one portion of the sidewalk was one half inch vertically lower than the surrounding sidewalk in the area of the Plaintiff's alleged fall. 

In response to the Defendant’s trivial defect defense, the Plaintiffs asserted that the Defendants’ alleged negligence was an issue to be determined by a jury.  

Judge Zulick noted the law that “[a]n elevation, depression, or irregularity in a sidewalk may be so trivial that the court, as a matter of law, is bound to hold that there was no negligence in permitting it to exist.”   The court also noted that there was no definite or mathematically rule that determines whether or to a defect is trivial.   Rather, each case must be determined upon its own merits. 

Judge Zulick stated that “appellate courts have found that sidewalk imperfections greater in depth and overall size than at issue here were insufficient to impose liability as a matter of law.”   citing Davis, Bosack v. Pittsburgh Railways Co., 189 A.2d 877 (Pa. 1963) [and other cases].  

In concluding his Opinion and granting summary judgment in favor of the defense, the court noted that “A pedestrian should not expect a perfectly level walking surface on a sidewalk in the Poconos.”  

This case has been appealed up to the Superior Court.

Anyone desiring a copy of Judge Zulick's Opinion in the case of Yohey v. Crupi may contact me at dancummins@comcast.net.



Source: "Case Digests," Pennsylvania Law Weekly (Nov. 27, 2012).

Summary Judgment Granted in Monroe County Sidewalk Trip and Fall Case

Summary Judgment was granted in favor of the Defendants in the recent trip and fall case of Pietrowski v. Gallagher, PICS Case No. 12-0994 (C.P. Monroe Co. March 7, 2012 Zulick, J.).

Judge Arthur L. Zulick
Monroe County Cour of Common Pleas

In Pietrowski, Judge Arthur L. Zulick of the Monroe County Court of Common Pleas ruled that the rise or gap in a sidewalk surface was not significant enough to put the owner on notice of an allegedly dangerous condition. Given the law that a pedestrian bears the responsibility to avoid slight imperfections in the surface of a walkway, the court granted summary judgment in favor of the Defendants.

According to reports on the opinion, the Plaintiff fell in daylight conditions.  Both parties submitted photographs of the area in question. The photographs show that the gap was slightly irregular and that one slab of the sidewalk was raised about1/2 inch above the other. The court noted that Pennsylvania case law has held that up to a 2-inch gap is even not enough of a defect to impose liability on a property owner for failure to remedy or repair the alleged defect.

For other Tort Talk posts on other cases reviewing the Trivial Defect Doctrine, click here.

A copy of this case can be secured from the Pennsylvania Law Weekly Instant Case Service by calling 1-800-276-7427 and providing the PICS Case number noted above.

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (May 29, 2012).

Trivial Defect Case out of Philadelphia County

On December 13, 2010, Judge Levin of the Philadelphia County Court of Common Pleas issued an Opinion supporting entry of a compulsory non-suit in favor of a property owner after ruling that a defect in the sidewalk that was only 5/8 of an inch was a trivial defect as a matter of law in the case of Alston v. Commonwealth, PICS Case No. 11-0061 (Phila. Co., Dec. 13, 2010, Levin, J.).

In this case, the injured party had previously secured a settlement from the City of Philadelphia and PennDOT due to her injuries from a fall on a city street. The City of Philadelphia proceeded to trial against the property owner to recover the money the City paid in settlement on the grounds that the property owner was secondarily liable to the Plaintiff.

Judge Levin pointed to the fact that the City's own liability expert conceded at trial that there were thousands of city sidewalks with elevation levels of less than one inch. The court also noted that there were numerous appellate decisions finding deviations greater in size than the one at issue in this matter did not provide any basis for liability against a property owner.

The court further stated that "[i]t is simply unreasonable and utterly unrealistic to hold municipalities and property owners to a standard of care of maintaining pavement in pristine condition."

Rather, court found that the standard is reasonable care depending upon the surrounding the circumstances. Applying this standard, the court asserted that it properly entered a compulsory non-suit in favor of the property owner.



Anyone desiring a copy of this case (for a small fee) may contact the Pennsylvania Law Weekly's Instant Case Service at 1-800-276-7427 and provide the above-referenced PICS Case Number.


Source: "Digest of Recent Opinions" in January 18, 2011 Pennsylvania Law Weekly.

2010 Year-end Review Article (Non-Auto Law Context)

Defense-Oriented Decisions Dominated 2010's Biggest Non-Automotive Cases

by

Daniel E. Cummins


Pennsylvania Law Weekly/The Legal Intelligencer
November 23, 2010

Author's note: In the first of a two-part column, I review the 'Tort Talk' Top Ten cases and trends of 2010 in the non-automobile law context. In next month's column, I plan to do the same for automobile law.


As the plaintiff's bar can attest, in either context, 2010 was a tough one for them given the number of defense-favorable decisions handed down over the past year.

Perhaps leading the pro-defense wave in 2010 was the news of further decline in medical malpractice cases.

According to an April 27 article in The Legal , medical malpractice case filings and verdicts in 2009 revealed a continuing decline in the number of suits filed against health care providers in Pennsylvania. The numbers, secured from the Pennsylvania Supreme Court, dropped for the fifth straight year.

More specifically, the article noted that there were only 1,533 such filings in 2009, which was a 43.9 percent decline from the base years used of 2002-2003.

Some have attributed the decline in the number of cases to the rule requiring plaintiffs to produce a certificate of merit before being allowed to pursue the case. Another factor cited was the effort by the courts to prevent forum shopping by plaintiffs. Still another factor limiting the number of new suits was the overwhelming litigation costs to pursue medical malpractice litigation.

The plaintiffs bar has lamented that the ripple effects of the decreasing number of medical malpractice claims include the inability of legitimate victims of malpractice to obtain justice and compensation for their injuries. Also, there is a fear that, without accountability for errors by those in the practice of medicine, opportunities for correction of unacceptable medical care may be lost.

Expert Witnesses

One of the more recent state Supreme Court decisions, Freed v. Geisinger Medical Center, is also one of its most notable for the impact it could have on expert witnesses.

In that case's Sept. 29 opinion, the court, after having granted a rare re-argument on the issues presented, reaffirmed its own previous decision that nurses may testify as expert witnesses on causation issues in a negligence action in which it was asserted that a breach of the accepted nursing standard of care resulted in the patient's condition.

More specifically, the court reaffirmed its prior holding "that an otherwise competent and properly qualified nurse is not prohibited by the Professional Nursing Law, 63 P.S. §§ 211 et seq., from giving expert testimony at trial regarding medical causation."

The Freed decision was followed in a May 28, 2010 memorandum and order in Earls v. Sexton and Landstar Ranger, Inc. , in which U.S. District Court Judge for the Middle District of Pennsylvania James M. Munley also ruled that a nurse would be allowed to testify on causation at trial in a trucking accident case.

The impact of this decision on civil litigation matters, i.e., whether nurses will actually be used as expert witnesses more frequently — perhaps as a costs-savings measure — remains to be seen.

Expert Discovery

Less than two weeks before the high court's decision in Freed , a Superior Court panel addressed an important issue of first impression pertaining to expert discovery. In a Sept. 16 opinion, the panel rejected a plaintiff's contention that letters and e-mails discussing trial strategy sent between a party's expert witness and that party's attorney are discoverable were protected by the attorney work product doctrine.

The plaintiff argued in Barrick v. Holy Spirit Hospital that those documents need not be produced as they were attorney work product between the doctor and the plaintiff's attorney regarding the doctor's role as an expert witness and the plaintiff's attorney's suggestions as to how the doctor should formulate his opinion in the case.

Rather, the court found that it was "compelled to find that if an expert witness is being called to advance a party's case-in-chief, the expert's opinion and testimony may be impacted by correspondence and communications with the party's counsel; therefore, the attorney's work product doctrine must yield to discovery of those communications."

In so ruling, the panel adopted a bright line rule in favor of the production of such written communications to a trial expert by counsel. The court stated that litigants are entitled to discover whether an expert's opinions are his own or a mere parroting of what he or she was told by counsel.

It is noted that there is currently a petition for re-argument en banc filed by the plaintiff pending before the Superior Court in this matter. It should also be noted that this author wrote an amicus brief in the case on behalf of the Pennsylvania Defense Institute.

Mental Health Records

The issue presented in the Superior Court case of Gormley v. Edgar , was whether a Philadelphia trial court judge correctly ruled that the defense was entitled to discovery of a pre-accident mental health consultation medical record pertaining to a plaintiff who had pled emotional distress claims as a result of a motor vehicle accident.

The plaintiff argued that she was only pleading the ordinary emotional distress claims attendant with a personal injury action.

The defense argued that, once the plaintiff put her mental health condition in issue in the case with claims of severe, disabling and indefinitely continuing mental distress, anguish and anxiety, the discovery of the pre-accident record should be allowed.

The panel ruled that, where the plaintiff made allegations in the complaint that she sustained "anxiety" as a result of the accident, which is a recognized mental health disorder, the plaintiff put her mental health status at issue. As such, the Superior Court found that the defense was entitled to discovery of the plaintiff's pre-accident mental health treatment records.

In the opinion, the panel did also note that the ordinary and general averments of shock, mental anguish and humiliation, which are routinely pled in personal injury complaints in Pennsylvania, were not sufficient to place a plaintiff's mental condition at issue or cause a waiver any privilege against the production of mental health records.

In the interest of full disclosure, this author wrote an amicus brief on behalf of the Pennsylvania Defense Institute in this case.

Social Networking Discovery

In the novel Jefferson County case of McMillen v. Hummingbird Speedway Inc. , the court held that where a person's social networking sites contain information that may be relevant to the claims or defenses presented in a lawsuit, access to those sites during discovery should be freely granted.

During discovery in this car accident matter, defendant Hummingbird Speedway Inc., in its interrogatories, inquired if the plaintiff belonged to any social networking computer sites. The defendant also requested the name of the site, the plaintiff's user name, login name, and password.

The plaintiff disclosed that he belonged to Facebook and MySpace, but maintained that his user name and login name information were confidential and should not have to be provided. The defense responded with a motion to compel.

The trial court in McMillen pointed to the liberal rule in Pennsylvania that a party may obtain discovery regarding any information that is relevant and not privileged.

The court found that the plaintiff did not satisfy the requirements to support a finding of privilege in this matter. The judge emphasized that these social networking websites themselves expressly advised the users of the sites of the possibility of the disclosure of the information posted on the sites.

Accordingly, the court found that a person using these sites could not reasonably expect that the communications would remain confidential. As the information contained in the plaintiff's sites in McMillen was found to be relevant in proving the truth or falsity of the plaintiff's alleged injuries, the court found that the overriding goal of the search for truth in civil trials should prevail in favor of the disclosure of information that may not have otherwise been known.

Assumption of Risk

The continuing validity of the assumption of risk doctrine in Pennsylvania was noted in an April Superior Court decision, Montagazzi v. Crisci .

Montagazzi involved a 15-year-old minor plaintiff who was injured from lighting the fuse of an improvised explosive device that he and the other minor defendants created. The defendants defended in part under the assumption of risk doctrine.

A Superior Court panel did not accept plaintiffs' argument that the doctrine of voluntary assumption of risk should be abolished. The panel noted that it was without authority to abolish the doctrine and left that decision for the Supreme Court on another day.

The appellate court noted that the injured minor conceived and executed the design for the improvised explosive device, procured the wick that served as a fuse, allowed it to be lit, and held it in his hand on two successive occasions before he was injured.

As such, the Superior Court noted that the injured party proceeded in the face of a known danger of explosion and assumed the risk that the device would explode, i.e., the injured party voluntarily and knowingly exposed himself to the very danger the device was supposed to do. Thus, any liability on the part of the defendants was found to be negated by the assumption of risk doctrine.

Trivial Defect Cases

In a May Superior Court decision, Mull v. C.S. Ickes, a panel of the court reversed the entry of summary judgment in favor of the defendants, finding that a defect in their sidewalk was not so obviously trivial as a matter of law to allow for a dismissal of the plaintiff's case.

In Mull, the plaintiff was walking on the sidewalk in front of the subject premises as she had done many times before. On the day of the incident, 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 and be injured by the alleged defect in the sidewalk as opposed to the snow. The plaintiff sued and defendants moved for summary judgment, contending that the defect in the sidewalk was trivial as a matter of law.

In reviewing the matter, 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.

Viewing this evidence in favor of the plaintiff as required under the standard of review, the Superior Court held that the defect was not indisputably trivial.

In a separate unpublished decision from September, Melchiorre v. Lords Valley Xtra Mart , a panel of the court relied extensively on the Mull decision for the law on trivial defects to again overturn the entry of a summary judgment against a plaintiff.

In Melchiorre , a plaintiff tripped on a one-inch lip of a concrete pad that was surrounded by asphalt at a gas station. The Superior Court noted that, its review of the evidence, which showed that the lip was of slightly inconsistent height all around the pad, compelled the conclusion "that the defect in this matter was not so trivial as to authorize summary judgment as a matter of law."

Settlements & Liens

In the case of McKinney v. PHA, a federal court judge for the Eastern District of Pennsylvania ruled that a settling plaintiff could not be automatically required to reimburse the Pennsylvania Department of Public Welfare for 100 percent of her Medicaid expenses.

In this case, DPW was seeking to recover the full amount of its $1.2 million lien in a case involving a $12 million settlement. DPW was relying upon a state law that allegedly established a presumption in Pennsylvania that half of a plaintiff's settlement should be properly attributed to the reimbursement of medical expenses where required.

The court rejected the department's position and noted that the "Department of Public Welfare's proposed rule ignores the reality of settlement," which necessarily involves compromise on the part of all parties involved in a matter.

The McKinney court recommended that DPW's lien recovery be determined in such cases by the trial judge assessing "the factors that would have influenced the parties' settlement position and [making] an ultimate determination of what portion of the settlement represents compensation for past medical expenses."

In this matter, the deciding judge, who had also presided over the proceedings and the settlement talks, concluded that the plaintiffs had settled for two-thirds of the total value of the case. As such, the court ruled, the department was entitled to two-thirds of its $1.2 million dollar lien, minus fees and costs.

Insurance Reimbursement

In an August decision, American and Foreign Insurance Company v. Jerry's Sport Center Inc. , the Pennsylvania Supreme Court addressed the issue of whether, following a court's entry of a declaratory judgment that an insurance company had no duty to defend its insured, that insurance carrier was entitled to be reimbursed for those amounts it already paid out to defense counsel for the defense of its insured in the underlying suit.

The carrier was seeking such reimbursement from its insured on the basis of a series of reservation of rights letters as opposed to any express language in the insurance policy allowing for any such reimbursement.

In its decision, the high court held that "an insurer is not entitled to be reimbursed for defense costs absent an express provision in the written insurance contract." Here, there was no such provision in the policy and, therefore, no reimbursement was allowed.

While this case involved a corporate insured, the decision appears to be a victory for the "little man" insured, protecting them from having to pay back insurance companies any defense costs in the event of a decision in favor of a carrier in a declaratory judgment action on the coverage/duty to defend issue.

Attorney-Client Privilege Cases

On January 29, 2010, the Pennsylvania Supreme Court issued a 2-2 per curiam split decision in the attorney-client privilege case of Nationwide Mutual Insurance Co. v. Fleming. Only four justices took part in the decision because Justices Debra M. Todd and Seamus McCaffery had to recuse themselves. Both ruled on the case when they were on the Superior Court. The court was also short a justice at the time.

Justices J. Michael Eakin and Max Baer voted to affirm the Superior Court's decision and Justices Thomas G. Saylor and Chief Justice Ronald D. Castille voted to reverse. Under the rules of the court, the 2-2 split means that the Superior Court decision on the attorney-client privilege issue was affirmed.

The Superior Court in Fleming had ruled that the privilege only protects confidential communications from a client to an attorney in connection to the providing of legal services. That is, the Superior Court decision appears to stand for the proposition that the attorney-client privilege only applies to information given to the attorney by the client and not the other way around.

More recently, in an order handed down March 16, 2010, the court granted allocatur in the case of Gillard v. AIG Insurance Company to revisit the issue. It will be interesting to see how this one plays out.

At first glance, it appears academic that communications from the attorney to the client should also be considered privileged — but you never know.


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at www.torttalk.com .

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 dancummins@comcast.net.

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

Latest Pennsylvania Law Weekly Article - "You'd Better Watch Your Step"

My latest article, entitled "You'd Better Watch Your Step: Premises liability defendants are having a banner year in Pennsylvania courts," appeared in the Pennsylvania Law Weekly last week. The article reviewed a number of defense-oriented decisions from across the Commonwealth of Pennsylvania in premises liability cases.

That article, as well as other articles of mine, can be viewed under my profile on JDSupra at http://www.jdsupra.com/profile/danielcummins.

This particular article on the premises liability cases can be found by clicking this link: http://www.jdsupra.com/post/documentViewer.aspx?fid=792bd369-89d3-4aff-9d68-2a4be9ee0c20.

Also, continuing the trend of recent cases in favor of Defendant landowners, the Beaver County Court of Common Pleas issued an opinion in Orlowski v. Magg’s, Inc., PICS Case No. 09-1822(C.P. Beaver Oct. 27, 2009, Kwidis, J.) granting summary judgment in favor of a bowling alley in a trip and fall case.

Relying upon the rule that a person has a duty to look where he or she is walking and see that which is obvious, the court granted summary judgment to the defendant in a case where a plaintiff tripped over the step separating the bowling alley floor from the bathroom floor, which was slightly higher.

The court was impressed by the fact that the step was painted bright yellow against the dark carpet of the bowling alley floor and the beige ceramic tile bathroom floor. Also there was a "Watch Your Step" sign posted outside of the restroom. Furthermore, during her deposition, the plaintiff admitted that she was not watching where she was going.

Judge Kwidis of the Beaver County Court of Common Pleas found that the plaintiff had a duty to watch where she was going and that the landowner had no duty is owed to protect invitees from open and obvious dangers. He also relied upon the Pennsylvania cases holding that a mere difference in elevation or doorstops were not deemed to be dangerous conditions.

A copy of this case can be secured from the Pennsylvania Law Weekly for a small fee by calling 1-800-276-7427 and giving the above PICS number.


My firm and I continue to handle premises liability cases (as well as auto accident matters) all across Northeastern Pennsylvania. Please feel free to contact me at dancummins@comcast.net should I be able to assist you in any regard with such matters.

Summary Judgment for Defense in Pike County Trip and Fall Case

On June 19, 2009, Judge Gregory H. Chelak of the Pike County Court of Common Pleas issued an opinion granting summary judgment in favor of the defense in a case involving a plaintiff who tripped and fell allegedly due to the raised edge of a concrete pad at a gas station being a mere one inch above the surrounding asphalt. Melchiorre v. Lords Valley Xtra Mart, No. 1358-2006-Civil (June 19, 2009).

Relying upon, Rocklin v. Hartmann, No. 248-2003-Civil (June 22, 2006) aff'd No. 1673 EDA 2006 (Pa.Super. Feb. 13, 2007), a prior Pike County decision in favor of the defense in a case involving a 1.5 inch elevation, Judge Chelak held that, under the "trivial defect" doctrine, the one inch discrepancy involved in the case at hand was "so trivial that, as a matter of law, Defendants were not negligent in permitting it to exist." The court based its decision, in part, on photographs of the defect supplied in the motion for summary judgment materials.

In so ruling, Judge Chelak rejected the Plaintiff's argument that the trivial nature of the defect should be disregarded on account of the fact that the Defendants had notice of the defect prior to the incident. Judge Chelak held that "[p]ursuant to the trivial defect doctrine, the existence of such defects does not give rise to a negligence claim, with or without notice."

The Plaintiffs filed an appeal on July 1, 2009 and the case is currently pending before the Superior Court of Pennsylvania.