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Home My WebLink About97-1111 CivilDONNA L. GREENE, Plaintiff V. CHARLES RUSTICI and PAT RUSTICI, his wife; and HAMPDEN TOWNSHIP, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -- LAW · No. 97-1111 CIVIL TERM IN RE: DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this 19th day of March, 1999, upon consideration of Defendants' motions for summary judgment, and for the masons stated in the accompanying opinion, the motions for summary judgment are denied. BY THE COURT, ~ eyOI~l~r'' J' Richard H. Wix, Esq. Wix, Wenger & Weidner 4705 Duke Street Harrisburg, PA 17109-3099 Attorney for Plaintiff Karen S. Coates, Esq. Thomas, Thomas & Haler, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Defendants Rustici Michael L. Simonini, Esq. Campbell, O'Keefe, Nolan and Daly The Curtis Center, Suite 620 Walnut Street at 7th Avenue Philadelphia, PA 19106 Attorney for Defendant Hampden Township DONNA L. GREENE, Plaintiff CHARLES RUSTICI and PAT RUSTICI, his wife; and HAMPDEN TOWNSHIP, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : : · CIVIL ACTION -- LAW : : : · No. 97-1111 CIVIL TERM IN RE: DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, J., March 19, 1999. In this slip and fall negligence action for personal injuries, Plaintiff has sued the owners of property in Hampden Township and the municipality as the result of a fall on an allegedly defective sidewalk. Motions for summary judgment have been filed on behalf of Defendants, based upon the following contentions: [The sidewalk] deviation [where the fall occurred] measured approximately one quarter inch eight months post- incident, [and] was so trivial as to preclude liability as a matter of law. ~ Defendants had no reason to expect that Plaintiff would not discover or realize the danger given her prior knowledge of the sidewalk conditions in the neighborhood and the fact that she was aware of the obvious tripping hazards presented by the multiple portions of the sidewalk in the vicinity where she was walking? [Defendants] exercised reasonable care, as a matter of Defendants' motions for summary judgment, paragraph 8. Id., paragraph 9. law, to make the sidewalk safe.3 Defendants' motions for summary judgment were argued on March 3, 1999.4 For the reasons stated in this opinion, Defendants' motions for summary judgment must be denied. STATEMENT OF FACTS Plaintiff alleges that on or about September 6, 1996, at about 9:00 p.m. she fell on a defective sidewalk on residential premises occupied by Defendants Rustici and located in Defendant Hampden Township? According to her complaint, Plaintiffsuffered an angulated fracture of her right elbow and upper right extremity as a result of the fall.6 Plaintiff testified at a deposition in the case that on a pleasant, late-summer night in September of 1996 she was walking with a companion in the neighborhood of her home when she fell on the sidewalk in question.? At an uneven area of the sidewalk where one slab abutted another,s the fall occurred in the following manner, according to Plaintiff's testimony: Q Okay. Can you describe for me exactly what happened when you fell, how it came to be that you fell? A As I said, we were walking. We were not talking. There was no radio. It happened very quickly, very quickly. 3 Id., paragraph 10. 4 Although the motion for summary judgment of Defendant Hampden Township had not been placed on the March 3, 1999, argument court list by the prothonotary, because it had not been timely listed for that session, counsel agreed at the oral argument that the motion should be considered with the co-defendants'motion, since the bases for the motions were identical. Plaintiff's complaint, paragraphs 1-5. 6 /rd., paragraph 7. 7 N.T. 16-27, Deposition of Donna L. Greene, March 16, 1998. Id. at 24. 2 It almost seemed like I want to say a tug on my right foot, like my foot got stuck or something and I went down. It was very fast.9 Plaintiff testified at the deposition that she was.not on her usual walking route, 20 that there was no natural light at the time,12 and that there was some artificial light. 22 She stated, however, that the shadow of a tree along the sidewalk obscured the area where she fell. 23 In retrospect, this area appeared to have been previously subject to repair,TM but the roots of the tree had started to uplift the pavement again, IS according to Plaintiff's testimony. Photographs of the site reveal an uneven joinder of two sections of pavement, with a portion of one of the edges broken away. 16 Defendant Charles Rustici testified at a deposition in the case that he had repaired the sidewalk in the area in question several times. 27 He estimated that, as of May of 1997, the difference in elevation of the two pavement sections was a quarter inch.2a The elevation, however, is difficult to determine from the photographs of the site. 9 Id. at 27. 20 Id. at 18. II .Id. at 17. 12 Id. at 19. 13 Id. 24 Id. at 25-26. 2s Id. at 26. 16 See Defendants' motions for summary judgment, Exhibits A, D and E. ~7 N.T. 6-9, Deposition of Charles Rustici, December 8, 1998. 18 Id. at 17. DISCUSSION Summary judgment in a case may be entered in favor of a defendant "(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action ... which could be established by additional discovery or expert report" or "if, after the completion of [relevant] discovery ..., [the plaintiff] has failed to produce evidence of facts essential to the cause of action ... which in a jury trial would require the issues to be submitted to a jury." Pa. R.C.P. 1035.2. Oral testimony alone will generally not suffice to sustain a motion for summary judgment on either ground. Smith Land and Improvement Corp. v. International Beauty Enterprises, Inc., 46 Cumberland L.J. 263 (1997). "[T]he summary judgment rules do not permit a court to assume the responsibility and prerogative of the trier of fact to determine the credibility of witnesses and to believe all, part, or none of the testimony." Id. at 265-66. Under Section 342 of the Restatement (Second) of Torts (Dangerous Conditions Known to Possessor), it is provided as follows: A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of 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, and (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 licensees do not know or have reason to know of the condition and the risk involved. In sidewalk slip and fall cases, "[w]hat 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." Breskin v. 535 FifihAvenue, 381 Pa. 461,463,113 A.2d 316, 318 (1955). 4 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 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. No definite or mathematical rule can be laid down as to the depth or size of a sidewalk depression necessary to [establish] negligence in permitting its continued existence. Id. (citations omitted). In the present case, after examining the record, the court cannot say as a matter of law that the defect in the sidewalk in question was so trivial that it involved no unreasonable risk of harm to the Plaintiff, or that reasonable care had been undertaken to make the condition safe or to warn of it, or that Plaintiff knew or should have known of the danger. It appearing that genuine issues of material fact as to the necessary elements of Plaintiff's cause of action against Defendants exist, and that Plaintiff has not failed to produce evidence of facts essential to the cause of action, Defendants' motions for summary judgment will be denied. ORDER OF COURT AND NOW, this 19th day of March, 1999, upon consideration of Defendants' motions for summary judgment, and for the reasons stated in the accompanying opinion, the motions for summary judgment are denied. BY THE COURT, Richard H. Wix, Esq. Wix, Wenger & Weidner 4705 Duke Street Harrisburg, PA 17109-3099 Attorney for Plaintiff /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Karen S. Coates, Esq. Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Defendants Rustici Michael L.Simonini, Esq. Campbell, O'Keefe, Nolan & Daly The Curtis Center, Suite 620 Walnut Street at 7th Street Philadelphia, PA 19106 Attorney for Hampden Township 6