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HomeMy WebLinkAbout2002-3523 Civil LINDA I. McCLEARY and JOSEPH D. McCLEARY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 02-3523 CIVIL LANCASTER DEVELOPMENT COMP ANY and HIGH GENERAL CORPORATION, Defendants JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HESS AND OLER. 1.1. OPINION AND ORDER On the afternoon of August 28, 2000, at the Rossmoyne Industrial Park in Lower Allen Township, Cumberland County, the plaintiff, Linda McCleary, tripped and fell on a sidewalk in front of the entrance to her place of employment. In a complaint filed on August 9, 2002, the plaintiff sued the owners of the premises, defendants Lancaster Development Company and High General Corporation, claiming that her fall was caused by a negligently constructed sidewalk. She claims that the sidewalk "joint" dividing two adjacent panels of the sidewalk is slightly larger and deeper than normal. This, combined with the fact that one panel was slightly higher than the other, created a tripping hazard. The panels themselves were in good condition with no visible cracks or defects. The defendants eventually filed an answer and new matter. The plaintiffs subsequently filed a reply. Discovery was conducted and the defendants have now filed a motion for summary judgment. In passing upon a motion for summary judgment, the record must be reviewed "in a light most favorable to the nonmoving party and all doubts as to the existence of a genuine issue of NO. 02-3523 CIVIL material fact must be resolved against the moving party." Ertel v. Patriot-News Co., 674 A.2d 1038, 1041 (Pa. 1996). A proper grant of summary judgment depends on an evidentiary record that: (1) shows that material facts are undisputed, or (2) contains insufficient evidence of facts to make a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury. In a case such as this one, for the plaintiff to defend against the defendants' motion for summary judgment, she must adduce facts sufficient to establish a prima facie cause of negligence. Rauch v. Micke-Mayer, 783 A.2d 815,823-824 (Pa.Super. 2001). In this case, the plaintiffs have failed to make out a prima facie case of negligence because the sidewalk joint at issue involves a "trivial defect" as a matter of law. Our courts long ago recognized that outside walking surfaces are not subject to the more exacting standards applied to indoor surfaces. In the seminal case of German v. City of McKeesport, the Superior Court stated that the "law does not require that sidewalks shall be as free of defects, imperfections, irregularities, unevenness, etc., as the floors of buildings. A reasonably safe condition is all that is necessary." German v. City of McKee sport, 8 A.2d 437 (Pa.Super. 1939).1 The court reasoned that the constant barrage of the elements on outside surfaces and the difficulty in creating a perfectly smooth walking surface militated against requiring a standard of perfection from property owners.2 The court in McKeesport went on to observe: . .. to impose liability on the property owner or the city [irregularities] must be so large and unusual as to appear dangerous to the ordinary pedestrian and everyday passerby. A difference or discrepancy of 1 The plaintiff complains that some of the cases cited by the defendants are more than sixty years old. We have found no authority for the proposition that the principle stated in these cases is any less valid because of their ages. 2 As we observed at oral argunlent, if the pavement joint in this case is an actionable dangerous condition, then the stretch of sidewalk from the courthouse to the law school in Carlisle is a virtual minefield. 2 NO. 02-3523 CIVIL an inch and a half between the levels of two abutting curbstones was held not to impose liability: McGlinn v. Philadelphia, 322 Pa. 478, 186 A. 747. And such a variation -111z inches- between the adjoining ends of flagstones in a street crossing is not evidence of negligence imposing liability for injuries to a pedestrian who fell at [137 Pa. Super. 49] that point: Newell v. Pittsburgh, 279 Pa. 202, 123 A. 768. Id at 441. In more recent cases, the courts have ruled that a defect is trivial when "it would be completely unreasonable, impractical, and unjustifiable" to hold a defendant liable. Gosha v. City of Philadelphia, 30 D.&C.3rd 190, 202, 1982, citing Bosack v. Pittsburgh Railways Co., 189 A.2d 877, 880 (Pa. 1963). In an even more recent decision from the Adams County Court of Common Pleas, the court held that a small deviation in the levels of two adjacent sidewalk panels was a trivial defect as a matter of law. In so holding, the court noted that the sidewalk was in otherwise good condition with no "holes or breaks in the concrete." Cline v. Statler, 34 D.&CAth 289,292 (1997). In this case, the plaintiff is not certain why she fell. When asked at her deposition if she knew what caused her to fall, the plaintiff responded, "I must have tripped on the sidewalk." Plaintiffs Dep., p. 13. The record of this case includes a photograph of the pavement where the plaintiff fell. The photograph demonstrates that the alleged "defect" is a common gap or expansion joint between two slabs of concrete. Such gaps or joints exist everywhere there are concrete sidewalks and pavement. To hold the defendants liable in this case would suggest liability on every property owner whose outdoor walking surface was less than perfect. 3 NO. 02-3523 CIVIL AND NOW, this summary judgment is GRANTED. Richard A. Sadlock, Esquire F or the Plaintiffs Gregory S. Hirtzel, Esquire F or the Defendants :rlm ORDER day of September, 2005, the motion of the defendants for BY THE COURT, Kevin A. Hess, 1. 4 LINDA I. McCLEARY and JOSEPH D. McCLEARY, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 02-3523 CIVIL LANCASTER DEVELOPMENT COMP ANY and HIGH GENERAL CORPORATION, Defendants JURY TRIAL DEMANDED IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HESS AND OLER. 1.1. ORDER AND NOW, this day of September, 2005, the motion of the defendants for summary judgment is GRANTED. BY THE COURT, Kevin A. Hess, 1. Richard A. Sadlock, Esquire F or the Plaintiffs Gregory S. Hirtzel, Esquire F or the Defendants :rlm