                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                        18-2548
                                   ________________

                    ROD SLAPPY-SUTTON, JEAN SUTTON, H/W,
                                                Appellants

                                             v.

                                   SPEEDWAY LLC
                                   ________________

                          On Appeal from the District Court
                        for the Eastern District of Pennsylvania
                                (E.D. Pa. 2:16-cv-04765)
                      Honorable Jan E. DuBois, U.S. District Judge
                                  ________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 22, 2019

               Before: SHWARTZ, KRAUSE and BIBAS, Circuit Judges


                             (Opinion filed: March 25, 2019)


                                   ________________

                                      OPINION*
                                   ________________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
KRAUSE, Circuit Judge.

       Plaintiffs-Appellants Rod Slappy-Sutton and Jean Sutton challenge the District

Court’s entry of summary judgment in favor of Defendant-Appellee Speedway LLC.

Because we find there are genuine disputes of material fact, we will reverse.

I.     Background

       On a winter evening in January 2016, after refueling his vehicle, Slappy-Sutton

went inside a Speedway convenience store to purchase snacks. After exiting the store, he

crossed the sidewalk, but when he reached the end of the sidewalk, he failed to perceive

the drop down to the ground below. As a result, he stepped forward with the expectation

that his foot would encounter more sidewalk, but his foot instead traveled six inches

down, and he fell. According to Slappy-Sutton, the end of the sidewalk was

imperceptible due to a one-foot-wide concrete apron that was nearly identical in color to

and abutted the sidewalk. That concrete apron was added by Speedway in 2015 to fill a

trench, which was dug as part of an upgrade to the underground gas tank monitoring

system. Prior to the addition of the concrete apron, the asphalt that covers the rest of the

lot came all the way up to the sidewalk.

       Because of his slip, Slappy-Sutton suffered physical, economic, and emotional

damages. He, along with his wife, sued Speedway in state court for negligence and loss

of consortium. Speedway removed the suit to the Eastern District of Pennsylvania.

Following discovery, the District Court granted Speedway’s motion for summary

judgment, finding that the similarity in color between the sidewalk and concrete apron

did not create a dangerous condition, and that, if it did create a dangerous condition, it

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was open and obvious, such that Speedway was not liable for Plaintiffs’ injuries. This

timely appeal followed.

II.    Discussion1

       On appeal, Appellants argue that the District Court erred by entering summary

judgment because genuine disputes of material fact exist as to whether the sidewalk was a

dangerous condition, and, if it was, whether it was open and obvious. We review the

District Court’s grant of summary judgment de novo. Faush v. Tuesday Morning, Inc.,

808 F.3d 208, 215 (3d Cir. 2015). To prevail at this stage, the moving party must

establish that “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

       Under Pennsylvania law, “[p]ossessors of land owe a duty to protect invitees from

foreseeable harm.” Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). When an

invitee suffers injuries due to a condition on a possessor’s land, the possessor is liable for

those injuries only if she: (1) knew of “or by the exercise of reasonable care would [have

discovered] the condition” and “realize[d] that it involve[d] an unreasonable risk of

harm” to the invitee; (2) should have expected that the invitee would “not discover or

realize the danger, or [would] fail to protect [himself] against it”; and (3) “fail[ed] to

exercise reasonable care to protect [the invitee] against the danger.” Id. (quoting


       1
         The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have
jurisdiction under 28 U.S.C. § 1291.
                                               3
Restatement (Second) of Torts § 343). Under this framework, if the condition causing

the injury was “known or obvious” to the invitee, the possessor is not liable for the

injuries caused unless she “should [have] anticipate[d] the harm despite such knowledge

or obviousness.” Id. (quoting Restatement (Second) of Torts § 343A).

       “[T]he question of what is a dangerous condition is one of fact which must be

answered by the jury.” Finn v. City of Philadelphia., 664 A.2d 1342, 1345 (Pa. 1995)

(citing Bendas v. Twp. of White Deer, 611 A.2d 1184, 1187 (Pa. 1992)). Similarly, “the

question of whether a danger was known or obvious is usually a question of fact for the

jury.” Carrender, 469 A.2d at 124. However, “the[se] question[s] may be decided by the

court where reasonable minds could not differ as to the conclusion.” Id; see Bendas, 611

A.2d at 1187 n.6.

       Here, the parties are largely in agreement about the physical condition of the

sidewalk and the basic facts surrounding Slappy-Sutton’s fall. They disagree, however,

about whether the sidewalk rose to the level of a dangerous condition, and, if so, whether

that condition was open and obvious. The District Court found, and Speedway argues on

appeal, that the sidewalk was one that “an invitee should normally expect to encounter,”

and that because Slappy-Sutton was able to ascend to the sidewalk safely, the sidewalk’s

condition was open and obvious. Appellee Br. 33 (quoting App. 8).

       But our review of the record suggests these facts are in genuine dispute because

Slappy-Sutton raised sufficient evidence before the District Court from which a

reasonable jury could return a verdict in Plaintiffs’ favor. For example, Slappy-Sutton

testified that, in his experience, a sidewalk’s end is usually perceptible because it either

                                              4
clearly contrasts with the pavement below or is marked with paint, and that he had “never

seen” a sidewalk like Speedway’s. App. 120. He also testified repeatedly that the

sidewalk’s similarity in color to the concrete apron was the reason he perceived the

sidewalk as wider than it actually was. And should the case proceed to trial, Slappy-

Sutton is prepared to introduce expert testimony to support his contention that the

sidewalk’s condition was dangerous.

       Furthermore, Slappy-Sutton’s account is consistent with non-testimonial evidence,

such as the surveillance camera footage, which captured the fall, and photographic

evidence showing that the appearance of the sidewalk’s edge varies with the angle from

which it is viewed, the ambient lighting conditions, and the direction of travel, i.e.,

whether the viewer is entering or exiting the store. On this evidence, both the question of

whether the sidewalk’s condition was dangerous and whether that condition was open

and obvious remain unresolved. Reasonable minds could differ, and as a result, these are

“question[s] of fact for the jury.” Carrender, 469 A.2d at 124.

III.   Conclusion

       For the foregoing reasons, we will reverse the District Court’s entry of summary

judgment in favor of Speedway and remand the case for proceedings consistent with this

opinion.




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