          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William B. Kazimer and                       :
Catherine Kazimer, Individually              :
and as Husband and Wife,                     :
                        Appellants           :
                                             :   No. 760 C.D. 2015
               v.                            :   Argued: December 7, 2015
                                             :
Methacton School District and                :
Methacton Home and School                    :
District Council                             :

BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                             FILED: January 22, 2016

               William B. Kazimer (Plaintiff) and Catherine Kazimer (Plaintiff’s
Wife), individually, and as husband and wife (collectively, Plaintiffs), appeal from
an order of the Court of Common Pleas of Montgomery County (trial court) 1 that
granted a motion for summary judgment on behalf of Methacton School District
(District) and the Methacton Home and School District Council (Council)
(collectively, Defendants). The trial court entered judgment for Defendants and
dismissed Plaintiffs’ negligence action seeking damages for personal injuries under
the real property exception to governmental immunity in 42 Pa. C.S. §8542(b)(3).
For the reasons that follow, we affirm.




      1
          The Honorable Thomas M. Del Ricci presided.
                                   I. Background
              In April 2007, Plaintiff, 78 years old at the time of the incident,
sustained an injury when he slipped and stumbled while descending stairs in the
District’s Arcola Intermediate School’s auditorium. The auditorium’s stage had
identical stairways to the floor on the left and right sides. The stairways have six
steps each.


              Plaintiff encountered no problems ascending the stairway on the right
side. After two hours on stage, Plaintiff exited the stage using the left stairs.
While coming down the steps, Plaintiff stumbled, but did not fall to the floor. A
younger man caught Plaintiff before he fell.


              In April 2009, Plaintiff initiated a civil action against Defendants by
writ of summons. In June 2009, Plaintiffs filed a negligence complaint against
Defendants. Plaintiffs claimed the lack of a proper handrail and inadequate anti-
slip/skid material on the steps constituted a dangerous and defective condition of
the stairway, of which Defendants knew or should have known. This dangerous
condition caused Plaintiff to slip, lose his balance, and fall. As a result of the
incident, Plaintiff sustained injuries to his body and extremities, and the permanent
loss of a bodily function. As a result, Plaintiff incurred medical expenses.


              In Count I of their complaint, Plaintiffs alleged the District’s
negligence, in failing to properly control, manage, supervise, operate, maintain,
monitor and inspect the stage and stairway, directly and proximately caused
Plaintiff’s injuries.   Plaintiffs further alleged the District negligently failed to



                                           2
provide a proper handrail and allowed the stage and stairway to remain in a
dangerous condition for an unreasonable period of time. In short, Plaintiffs alleged
the District’s negligence in the care, custody and control of the stage and stairway
brought the District within the scope of the real property exception to
governmental immunity in 42 Pa. C.S. §8542(b)(3). In Count II, Plaintiff included
an identical claim against Council. In Count III, Plaintiff’s Wife asserted a claim
for loss of consortium.


               In response, Defendants filed an answer denying Plaintiffs’ material
allegations.    In new matter, Defendants asserted, among other defenses, that
Plaintiffs’ claims were barred by governmental immunity.


               Following the close of pleadings, the parties engaged in discovery.
Plaintiff testified via deposition. See William. B. Kazimer Dep., 1/19/11, at 1-74;
R.R. at 118a-37a. Plaintiff testified the weather played no role in the incident; it
was a dry day. Kazimer Dep. at 53; Reproduced Record (R.R.) at 131a. Plaintiff
also found the lighting adequate. Id. Plaintiff did not notice any foreign substance
on the steps. Kazimer Dep. at 54; R.R. at 132a.


               After two hours, Plaintiff exited the stage on the left side. Kazimer
Dep. at 56; R.R. at 132a. While on the stage, Plaintiff got a quick look at the steps.
Id. He observed a shiny finish on the steps. Id. He did not notice the same glossy
finish earlier on the right side while ascending the steps. Kazimer Dep. at 55; R.R.
at 132a. Plaintiff put his left foot down on the first step and his left leg went
straight out. Kazimer Dep. at 55; R.R. at 132a. Plaintiff’s right leg caught a riser



                                          3
on the stairs, which prevented him from falling. Kazimer Dep. at 59; R.R. at 133a.
Plaintiff then stumbled down the steps, swinging his arms from right to left to
regain his balance, until a younger man caught him at the bottom of the steps. Id.
R.R. at 133a. At that point, Plaintiff’s feet were on the floor. Id. Plaintiff testified
that he believed his foot slipped out because of the glossy finish of the steps, not
because he misjudged the steps. Kazimer Dep. at 61; R.R. at 133a.


             Defendants deposed John Petrauskas, the man who caught Plaintiff
and kept him from falling to the ground. See Petrauskas Dep., 12/12/12, at 1-29;
R.R. at 167a-74a. Petrauskas testified Plaintiff stumbled while coming down the
stairs, and he caught Plaintiff’s arm and kept him from falling. Petrauskas Dep. at
9; R.R. at 169a. Plaintiff’s body did not hit the stage, steps or ground. Id.
Petrauskas did not notice any liquid or debris on the steps or any defects in the
steps. Petrauskas Dep. at 11; R.R. at 170a. In short, Petrauskas did not notice
anything unusual at all about the steps. Id.          Petrauskas ultimately described
Plaintiff’s movements during the incident as a stumble and responsive lurch
forward by the upper body. Petrauskas Dep. at 21; R.R. at 172a.


             Defendants also deposed the District’s Supervisor for Facilities
Operations, Ivan William Jacobe (Facilities Supervisor).            See Jacobe Dep.,
5/10/12, at 1-33, R.R. at 139a-49a.         Facilities Supervisor is responsible for
maintenance of all District facilities and grounds, including custodial and utility
grounds operations.     Jacobe Dep. at 14-15; R.R. at 144a.           He oversees all
renovations and construction activities.       Id.   Facilities Supervisor testified no
changes to the stairs and stage were made during the 17 years he worked for the



                                           4
District, and he did not recall any complaints or issues regarding the stage or stairs.
Jacobe Dep. at 14-15; R.R. at 145a.


             In addition, Defendants deposed a retired custodian, Christopher
Thompson (Custodian). See Thompson Dep., 5/10/12, 1-43; R.R. at 151a-63a.
For 12 years, Custodian inspected and cleaned the stage and stairs once a week
until his retirement in 2010. Thompson Dep. at 12-16; R.R. at 156a-57a. At the
time of the incident in 2007, he was head custodian. Thompson Dep. at 12-13;
R.R. at 156a. The stage and stairs are made of the same wood. Thompson Dep. at
17; R.R. at 157a. One summer between 2001 and 2004, an outside contractor
sanded the stage and put a coat of polyurethane on it. Thompson Dep. at 18-19;
R.R. at 157a. However, the contractor left the stairs alone. Thompson Dep. at 19;
R.R. at 157a. Custodian further testified his crew maintained the stairs with only a
dust mop and wet mop. R.R. at 158a. During his 12-year tenure, there were no
construction changes to the stairs. Thompson Dep. at 20; R.R. at 158a. Custodian
further testified he never found the stairs to the stage slippery, and he never had
any trouble walking up or down them. Thompson Dep. at 25; R.R. at 159a. In
addition, Custodian never recalled any complaints about the stairs. Id.


             Following the close of discovery, Defendants filed a motion for
summary judgment. Plaintiffs filed a timely response in opposition. In December
2014, following argument on Defendants’ motion and after a review of the record
and the parties’ briefs, the trial court entered an order granting Defendants’ motion
for summary judgment and dismissing Plaintiffs’ claims. Tr. Ct. Order, 12/15/14,
R.R. at 222a.



                                          5
             Plaintiffs appealed. In an opinion in support of its earlier order, the
trial court noted school districts are considered local agencies entitled to
governmental immunity under Sections 8541-64 of the Judicial Code, 42 Pa. C.S.
§§8541-64, often referred to as the Political Subdivision Tort Claims Act (Tort
Claims Act). Taylor v. Ne. Bradford Sch. Dist., 101 A.3d 144 (Pa. Cmwlth. 2014).
Relevant here, Section 8542(b)(3) of the Tort Claims Act provides an exception to
immunity for:

               (3) Real property.—The care, custody or control of real
             property in the possession of the local agency, except that
             the local agency shall not be liable for damages on
             account of any injury sustained by a person intentionally
             trespassing on real property in the possession of the local
             agency ….

42 Pa. C.S. §8542(b)(3) (emphasis by underline added).


             The real property exception does not apply to personalty not
permanently attached or affixed to the real property. Sanchez-Guardiola v. City of
Phila., 87 A.3d 934 (Pa. Cmwlth. 2014). In the present case, the steps were
permanently affixed to the floor and stage. Therefore, the steps fell within the real
property exception.


             The trial court further observed that Defendants owed Plaintiff, an
invitee, a high duty of care summarized as follows:

             A possessor of land is subject to liability for physical
             harm caused to his invitees by a condition on the land if,
             but only if, he:




                                         6
               (a) knows or by the exercise of reasonable care would
               discover the condition, and should realize that it involves
               an unreasonable risk of harm to such invitees, and
               (b) should expect that they will not discover or realize the
               danger, or will fail to protect themselves against it, and
               (c) fails to exercise reasonable care to protect them
               against the danger.

Restatement (Second) of Torts §343 (1965) (emphasis added).


               The trial court further noted that ordinarily a jury question exists as to
whether the condition of the property constitutes a dangerous condition of the real
property.2 Here, however, the trial court determined reasonable minds could not
find that the stairs to the stage constituted a dangerous condition of the real
property. See Cuoto-Pressman v. Richards, 63 A.3d 856 (Pa. Cmwlth. 2013) (to
fall within the streets or sidewalks exceptions to governmental immunity in 42 Pa.
C.S. §§8542(b)(6)(i) and (b)(7), the plaintiff must establish a dangerous condition
of the street or sidewalk existed and that the municipality had actual or
constructive notice of the allegedly dangerous condition). The trial court also
recognized that the mere fact that an accident occurred does not entitle the plaintiff
to a favorable verdict. Wombacher v. Greater Johnstown Sch. Dist., 20 A.3d 1240


       2
          In Snyder v. Harmon, 562 A.2d 307 (Pa. 1989), the Supreme Court, recognized the
difference in the language between the real property exception to sovereign immunity in 42 Pa.
C.S. §8522(b)(4), and the real property exception to governmental immunity in 42 Pa. C.S.
§8542(b)(3), the latter of which does not include the term “dangerous condition.” The Court
stated that in order for the real property exception to governmental immunity to apply, there must
be negligence making the real property unsafe for which it is used. Nevertheless, this Court
continues to apply the term dangerous condition in cases involving the real property exception to
governmental immunity. See; e.g., Wombacher v. Greater Johnson Sch. Dist., 20 A.3d 1240 (Pa.
Cmwlth. 2011).




                                                7
(Pa. Cmwlth. 2011). Ultimately, the trial court determined Defendants had no
actual or constructive notice of any dangerous condition of the stairs or stage.
Plaintiffs appeal.3


                                           II. Issues
               Plaintiffs present three issues for our review. Plaintiffs first contend
the trial court erred as a matter of law or abused its discretion by finding no
genuine issue of fact existed as to whether the District and Council breached a duty
of reasonable care to Plaintiff as a business invitee. Second, Plaintiffs maintain the
trial court erred or abused its discretion by determining that the subject stairway
did not constitute a defective and dangerous condition of the District’s premises.
Third, Plaintiffs assert the trial court erred or abused its discretion by determining
District and Council did not have actual and constructive notice that the subject
stairway was defective and dangerous.


                                       III. Discussion
                         A. Breach of Duty of Reasonable Care
                                         1. Argument
               Plaintiffs contend the trial court erred and abused its discretion by
disregarding the various theories of liability they advanced, including: (1) the
absence of handrails on the stairway; (2) the absence of skid/slip resistant materials

       3
         Our review of a trial court order granting summary judgment is limited to determining
whether the trial court erred as a matter of law or abused its discretion. Kuniskas v.
Commonwealth, 977 A.2d 602 (Pa. Cmwlth. 2009). We must examine the record in a light most
favorable to the non-moving party, accepting as true all well-pled facts and reasonable inferences
to be drawn from those facts. Id.




                                                8
on the treads of the steps; (3) the absence of any sort of warning sign at the top of
the stairway; and, (4) the absence of any other measures to assist Plaintiff as he
descended the stairway.


             Plaintiffs assert Defendants owed Plaintiff, a business invitee, the
highest duty of care. Beary v. Pennsylvania Elec. Co., 469 A.2d 176 (Pa. Super.
1983). The possessor of real property must use reasonable care to make the
premises safe or warn the invitee of dangerous conditions of the property. The
possessor must also use reasonable care to discover or inspect for any such
dangerous conditions. Id. The invitee enters the premises with implied assurance
of preparation and reasonable care for his protection and safety while he is there.
Treadway v. Ebert Motor Co., 436 A.2d 994 (Pa. Super. 1982).


             Here, the evidence shows there were no handrails on the stairway and
no alternative means were provided for Plaintiff to steady himself as he descended
the stairs. The record is also clear that the wooden treads of the stairs had no skid
or slip resistant material. Additionally, the record is clear that there were no
warning signs or individuals at the top of the stairway cautioning Plaintiff and the
other invitees to watch their step during their descent from the stage. Therefore,
Plaintiffs assert these circumstances raise a genuine issue of material fact as to
whether Defendants breached the high duty of care they owed Plaintiff and the trial
court erred in holding otherwise.




                                         9
                                    2. Analysis
             To prove a breach of a duty of care under Restatement (Second) of
Torts, Section 343(b), quoted above, the condition causing the injury must be such
that the possessor of land should expect that an invitee will not discover or realize
the danger or will fail to protect himself from it. Here, the allegedly dangerous
conditions are plain to everyone. Thus, the condition of the stairs (no handrail, no
skid-resistant covering on the steps, and no warning signs), is obvious.


             There is no reason to believe that Plaintiff did not perceive the
situation when he ascended the identical steps at the other side of the stage, and
there is no reason to conclude that Plaintiff did not observe or understand the
condition of the steps upon his descent.      In the absence of any evidence of
temporary distraction or obfuscation, there is no explanation for why the
Defendants should expect anyone would not realize the situation and take any
desired action to overcome it (such as asking for help).        Thus, regardless of
exceptions to immunity, Plaintiffs failed to make out an underlying tort cause of
action against Defendants. See 42 Pa. C.S. §8542(a)(1) (tort liability imposed on
local agency if, among other conditions, the damages would be recoverable under
common law or statute).


                     B. Dangerous and Defective Condition
                                   1. Argument
             Plaintiffs further contend the trial court erred as a matter of law or
abused its discretion by determining the subject stairway did not constitute a
defective and dangerous condition of the District’s premises. Plaintiffs also assert



                                         10
the trial court erred in determining, as a matter of law, that the stairs were not
dangerous because the District’s Facilities Supervisor and Custodian testified they
did not find the stairs to be slippery or dangerous, and that they could not recall
any complaints about the stairs being slippery. Once more, Plaintiffs assert the
lack of: handrails on the stairway, slip resistant materials on the step, warning signs
or other measures taken to assist Plaintiff on his way down the stairs, raise genuine
factual issues sufficient to raise a jury question as to whether the stairs were
defective and dangerous.


                                     2. Analysis
             We discern no error in the trial court’s determination that Plaintiffs
failed to prove a dangerous condition.


             In Grieff v. Resinger, 693 A.2d 195 (Pa. 1997), our Supreme Court
held the real property exception to governmental immunity is triggered when the
injury is caused by the negligent care, custody or control of real property. In
Grieff, a visitor to the fire company sustained an injury when paint thinner, which
the fire chief used to clean the floor, ran under a refrigerator and ignited. The
Grieff Court considered the cleaning of the floor as caring for the property. Thus,
the Court held the real property exception applied because the fire company’s
negligent care of the property caused the injury.


             Thereafter, in Hanna v. West Shore School District, 717 A.2d 626 (Pa.
Cmwlth. 1998), this Court held the real property exception to governmental
immunity applied where the plaintiff slipped and fell on water, which accumulated



                                          11
in a public school hallway. The parties stipulated the puddle of water formed as a
result of someone mopping the floor. This Court found the case indistinguishable
from Grieff because the school district’s negligent care of the hallway – mopping
the floor and allowing the water to accumulate – led to the injury. Thus, this Court
determined the plaintiff’s claim fit squarely within the real property exception. Id.


             Here, however, Plaintiffs failed to present sufficient evidence of either
a structural defect in the stairs or the negligent maintenance of the stairs as a cause
for Plaintiff’s injuries. Although Plaintiff testified he noticed a shiny, glossy finish
on the stairs just before he stumbled, Plaintiff presented no evidence, expert or
otherwise, showing there actually was any type of varnish or finish on the stairs, or
that such constituted a dangerous condition. To the contrary, Defendants presented
testimony from Facilities Supervisor and Custodian that the stairs remained in the
same condition for many years and were not resurfaced or coated with
polyurethane or any other finish. As such, Plaintiffs failed to present sufficient
evidence to raise a genuine issue of any material fact as to a dangerous or defective
condition of the steps.


             Therefore, we discern no error in the trial court’s determination that
reasonable minds could not find the stairs to the stage constituted a dangerous
condition of the real estate. Cuoto-Pressman.




                                          12
                        C. Notice of Dangerous Condition
                                    1. Argument
             Plaintiffs finally contend the trial court erred and abused its discretion
by determining, as a matter of law, that Defendants did not have actual or
constructive notice of a defective and dangerous condition of the stairs. Plaintiffs
assert actual notice of a dangerous condition may be imputed to Defendants in light
of the longstanding nature of the condition, and Defendants’ role in creating the
circumstances leading to Plaintiff’s slip and stumble down the stairs.


             To that end, Plaintiffs argue, it is well settled in Pennsylvania law that
if a dangerous condition of the premises arose because of the conduct of the land’s
possessor, actual notice is imputed to the possessor. See Lanni v. Pennsylvania
R.R. Co., 88 A.2d 887 (Pa. 1952) (what constitutes constructive notice of a defect
in or unsafe condition of the premises varies under the circumstances of each case;
some of the factors to be considered include the time elapsed between the origin of
the defect and the accident, the size and physical condition of the premises, the
nature of the business conducted thereon, the nature of the defect, and the
opportunity for the defendant, as a reasonably prudent person, to remedy it). Here,
Plaintiffs assert they presented evidence showing: Defendants had constructive
notice of the absence of handrails and the lack of slip or skid resistant material on
the steps, and Defendants failed to exercise reasonable care to protect Plaintiff
from that danger. Therefore, Plaintiffs assert the trial court erred in holding their
evidence failed to raise a genuine issue of material fact regarding actual or
constructive notice. Id.; see also Zito v. Merit Outlet Stores, 647 A.2d 573 (Pa.
Super. 1994) (a jury question existed as to whether store owners had knowledge of



                                         13
a dangerous condition in the nature of an existing steep ramp, which customers
could not see because of store displays).


                                    2. Analysis
                   The record supports the trial court’s determination that
Defendants had no notice of any defective or dangerous condition of the real estate
itself. The evidence showed the stairs were maintained in the same observable
condition for many years and no incidents or accidents were reported during that
time. Further, the record contained no evidence supporting a finding of negligence
in Defendants’ maintenance of the auditorium stage or stairways at the time of
Plaintiff’s slip and stumble. The mere fact that an accident occurred does not
establish a dangerous condition of the real property, or actual or constructive
knowledge of that condition. Wombacher; Zito.


                                  IV. Conclusion
             For the above reasons, we discern no error in the trial court’s
determination that no genuine issue of material fact existed as to whether an
unsafe, defective or dangerous condition of Defendants’ real property caused
Plaintiff’s slip and stumble. Grieff; Sanchez-Guardiola. Accordingly, we affirm
the trial court’s order granting Defendants’ motion for summary judgment and
dismissing Plaintiffs’ negligence action.




                                       ROBERT SIMPSON, Judge




                                            14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William B. Kazimer and                :
Catherine Kazimer, Individually       :
and as Husband and Wife,              :
                        Appellants    :
                                      :   No. 760 C.D. 2015
            v.                        :
                                      :
Methacton School District and         :
Methacton Home and School             :
District Council                      :

                                 ORDER

            AND NOW, this 22nd day of January, 2016, for the reasons stated in
the foregoing opinion, the order of the Court of Common Pleas of Montgomery
County is AFFIRMED.




                                     ROBERT SIMPSON, Judge
