Court Refuses to Hold Sidewalk Defects Not Trivial or De Minimis
Alan Nochumson | The Legal Intelligencer
March 17, 2015
A cold and snowy winter has wreaked havoc on many sidewalks throughout our region. Soon, many of these sidewalks will experience shifting and cracking this harsh winter season, creating a potential hazard for pedestrians as a consequence thereof.
Earlier this year, in Reinoso v. Heritage Warminster SPE LLC, 2015 PA Super 8 (Jan, 14, 2015), the Superior Court of Pennsylvania discussed what constitutes a trivial or de minimis defect in a sidewalk absolving a property owner from liability as a matter of law.
In 2009, 60-year-old Guadalupe Reinoso was walking hand-in-hand with her 5-year-old granddaughter on a sidewalk in a shopping center owned by Heritage Warminster SPE LLC when they both tripped and fell on a raised section of the sidewalk, the opinion said. The granddaughter, who was to Reinoso's right, tripped first and then Reinoso tripped when the toe of her right shoe caught the elevated part of the sidewalk, causing them to fall together, the opinion said. According to Reinoso, the sidewalk revealed a height difference of 5/8 of an inch between sections of the sidewalk in the location where Reinoso and her granddaughter fell.
Reinoso subsequently sued Heritage, among others, for the injuries she sustained in the fall.
Heritage filed a motion for summary judgment asserting any defect in the sidewalk was, at most, trivial or de minimis, absolving it from any liability as a matter of law.
The trial court agreed that the defect was trivial or de minimis, granting summary judgment in favor of Heritage and against Reinoso. The trial court first noted that: "As a general rule, an owner or occupier of premises must exercise reasonable care not to endanger the safety of others lawfully using abutting sidewalks. However, such owner is not an insurer of the safety of those using sidewalks in a business invitee commercial context. An owner is not liable for injuries just because someone using the sidewalk, trips, falls, and sustains an injury. As with any negligence claim against the land owner, there must be a failure of duty to maintain its premises in a reasonably safe condition, and liability will arise only where the owner created or permitted to persist, a condition that raises an unreasonably unsafe condition. Where the defect is so obviously trivial, its gravity should be a fact determined in light of the circumstances of the particular case."
In its opinion, the trial court concluded that "there is no issue of material fact that the alleged defect in the sidewalk was at its highest point 1 1/8th inches on the far right side of the sidewalk and 5/8ths of an inch in the middle of the sidewalk, where Reinoso was walking. The landowner is not required to maintain the sidewalk to perfection, but only to the extent that unreasonably unsafe conditions are removed. The facts of this case are not in dispute and the material facts lead inexorably to the conclusion that Heritage was not negligent in permitting the subject condition to exist. There being no negligence, it would be a waste of judicial resources to allow this case to go to trial."
Reinoso appealed the trial court's ruling to the state Superior Court.
After a divided panel affirmed the trial court's grant of summary judgment, the Superior Court granted reargument on an en banc basis.
On appeal, Reinoso argued that the trial court erred in determining that a sidewalk defect on Heritage's property was trivial or de minimis as a matter of law, justifying summary judgment and dismissal of Reinoso's claim of injury resulting from Heritage's negligence.
The Superior Court in Reinoso, before addressing the specific issue of whether the trial court erred as a matter of law in granting summary judgment based upon a "trivial defect," citing to Sections 341A, 343 and 343A of the Restatement (Second) of Torts, set forth the duty owed by Heritage to Reinoso as a business invitee that, if breached, could support a finding of negligence.
The Superior Court first pointed out that the standard of care that a property owner owes to one who enters upon the property depends upon whether the person entering is a trespasser, licensee, or a business invitee, and that the duty owed to a business invitee is the highest owed to any of them.
According to the Superior Court, a business invitee is entitled to expect that the property owner will take reasonable care to ascertain the actual condition of the property and, having discovered a defect in the property, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein.
The Superior Court in Reinoso emphasized, however, that, although property owners have a duty to maintain their sidewalks in a safe condition, property owners are not responsible for trivial or de minimis defects that exist in the sidewalk. In doing so, the Superior Court reiterated that Pennsylvania courts have routinely held that an elevation, depression, or irregularity in a sidewalk or in a street or highway may be so trivial or de minimis that, as a matter of law, courts are bound to hold that there was no negligence in permitting such depression or irregularity to exist. The Superior Court cautioned that there is no definite or mathematical rule that has been laid down as to the depth or size of a sidewalk depression to determine whether the defect is trivial as a matter of law. Rather, if the defect is not obviously trivial or de minimis, the Superior Court indicated that question of negligence must be submitted to a jury.
Having determined the duty owed by Heritage to Reinoso as a business invitee, the Superior Court then turned as to whether the trial court erred by granting summary judgment based upon its conclusion that the sidewalk defect on Heritage's property was trivial or de minimis as a matter of law.
In its opinion, the trial court did not consider all of the material facts at issue when concluding that Heritage was not negligent in permitting the alleged sidewalk defect to exist. According to the Superior Court, the only fact considered by the trial court when reaching its conclusion was that "the alleged defect in the sidewalk was at its highest point 1 1/8th inches on the far right side of the sidewalk and 5/8th of an inch in the middle of the sidewalk, where Reinoso was walking."
While the Superior Court agreed with the trial court's determination that there was no material fact at issue regarding the height difference between the sections of sidewalk where Reinoso fell, it believed that Reinoso presented additional facts that the trial court did not acknowledge in its opinion, such as, that, in the opinion of Reinoso's expert, the defect in the sidewalk was "seriously in excess of the 1/4 inch standard for a tripping danger and constituted a walkway safety hazard," "the subject condition violated applicable codes and standards," and an acknowledgement from one of the tenants in the shopping center that he had advised the management company of the potential tripping hazard well before the incident occurred.
In a majority decision, the Superior Court believed it was error for the trial court to ignore these "additional facts," and therefore, held that the issue of liability was properly for a jury to determine. In doing so, the Superior Court remanded the case back to the trial court for further proceedings.
The Superior Court's ruling in Reinoso very well may be a situation where the plaintiff "wins the battle but loses the war," so to speak. The plaintiff in Reinoso has been given the opportunity to have her case tried before a jury of her peers who will decide whether the defect in the sidewalk was so trivial or de minimis at the time of the incident so as to absolve the property owner from liability.
On the flip side, in a lengthy opinion, the Superior Court clarified that accidents sometimes do happen, and that property owners are not required to keep their properties perfectly level. With that being said, as spring comes this week, property owners in our region should inspect the damage caused to their properties by this harsh winter and make whatever property repairs necessary in order to avoid litigation.
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