J-E02003-14


                                    2015 PA Super 8

GUADALUPE REINOSO & EDMUNDO                           IN THE SUPERIOR COURT OF
DOMINGUEZ, H/W                                              PENNSYLVANIA

                            Appellants

                       v.

HERITAGE WARMINSTER SPE LLC

                       v.


KOHL'S DEPARTMENT STORES, INC. T/A
KOHL'S AND LOTS & US, INC.
                                                         No. 3174 EDA 2012


                 Appeal from the Order Dated October 10, 2012
                 In the Court of Common Pleas of Bucks County
                        Civil Division at No: 2010-07483


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN,
        OTT, WECHT, STABILE, and JENKINS, JJ.

OPINION BY STABILE, J.:                                FILED JANUARY 14, 2015

       Guadalupe      Reinoso      (“Reinoso”)   and    her   husband,   Edmundo

Dominguez (collectively “Appellants”), appeal from the October 10, 2012

order entered in the Court of Common Plea of Bucks County, granting

summary judgment in favor of Appellee, Heritage Warminster SPE, LLC

(“Heritage”).1     Reinoso claims the trial court erred in determining that a

____________________________________________


1
  Heritage joined Kohl’s Department Stores, Inc. (“Kohl’s”) and Lots & Us,
Inc. (“Lots & Us”) as additional defendants. In granting summary judgment
in favor of Heritage, the trial court ordered dismissal of Reinoso’s complaint
(Footnote Continued Next Page)
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sidewalk defect on Heritage’s property was trivial as a matter of law,

warranting summary judgment and dismissal of Reinoso’s claim of injury

resulting from Heritage’s negligence. Because we find the trial court’s grant

of summary judgment constitutes an error of law, we reverse and remand.

      On May 15, 2009, sixty-year old Reinoso and her five-year old

granddaughter were walking hand-in-hand on a sidewalk at Warminster

Towne Center, a/k/a Heritage Towne Center, a property owned by Heritage,

when they both tripped and fell on a raised section of sidewalk. 2 Heritage

leased retail stores to tenants in Warminster Towne Center, including Kohl’s

Department Store.          Answer to Complaint, 10/8/10, at ¶ 5.     Heritage

admitted its responsibility for maintaining the exterior areas outside Kohl’s,

including the sidewalks. Id. at ¶ 4.

      Reinoso fell as she was walking toward Kohl’s at the end of a charity

event sponsored by Kohl’s and other stores in the shopping center. Reinoso,

a Kohl’s employee, but not on duty at that time, served as a volunteer for

the event, which took place in a parking lot behind the Kohl’s store.

Although she was a Kohl’s employee, Reinoso did not park or enter the store

                       _______________________
(Footnote Continued)

and also dismissed as moot all claims and cross-claims involving Kohl’s and
Lots & Us. Trial Court Order, 7/2/14, at 2.
2
  Reinoso explained that the granddaughter was to Reinoso’s right, that the
granddaughter tripped first, and that Reinoso tripped when the toe of her
right shoe caught the elevated part of the sidewalk, causing them to fall
together. Reinoso Deposition, 11/1/11, at 33-40.



                                            -2-
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in the area where the event was held. Prior to the day she fell, Reinoso had

never walked on the sidewalk in question. As a result of her fall, Reinoso

sustained a broken left hand and fractured ribs.          Reinoso Deposition,

11/1/11, at 20-24, 29-30.

       Reinoso’s expert engineer/architect inspected the site in February

2012 and took measurements of the sidewalk that revealed a height

difference of 5/8 of an inch between sections of the sidewalk in the location

where Reinoso fell.3

       Heritage filed a motion for summary judgment asserting any defect in

the sidewalk was, at most, trivial or de minimus. The trial court agreed the

defect was de minimus and granted summary judgment. In its opinion, the

trial court stated:

       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. Cline v. Statler,
____________________________________________


3
  The height differential on the right side of the sidewalk, as measured by
Reinoso’s expert, was 1-1/8 inches. At her deposition, Reinoso drew a circle
on a photograph that was taken in the months following the incident,
indicating she fell in the middle of the sidewalk, where the height differential
was measured as 5/8 of an inch. Heritage’s Motion for Summary Judgment,
5/18/2012, Exhibit C (Reinoso Deposition, 11/1/11, at 39-40 and Exhibit 1).



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       726 A.2d 1073 (Pa. Super. 1998); Breskin v. 535 Fifth
       Avenue, [113 A.2d 316, 318 (Pa. 1955)]; Bullick v. Scranton,
       [302 A.2d 849 (Pa. Super. 1973)]. Where the defect is so
       obviously trivial, its gravity should be a fact determined in light
       of the circumstances of the particular case.

       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.

Trial Court Opinion (“T.C.O.”), 12/17/12, at 3.4

____________________________________________


4
  Regarding the three cases cited by the trial court, we note that the trial
court’s citation to Cline suggests that this Court issued a published opinion.
That is not the case. On appeal, this Court affirmed the trial court’s grant of
summary judgment in a non-precedential decision, as reflected in the Table
at 726 A.2d 1073. In accordance with § 65.37 of the Superior Court’s
Internal Operating Procedures, an unpublished memorandum decision of this
Court is not to be relied upon or cited by a court or a party in any
proceeding, except under limited circumstances that do not exist here. Also,
with respect to Breskin, which we will address in more detail herein, our
Supreme Court reversed the compulsory nonsuit entered in favor of the
premises owner, finding that the question of liability was for the jury.
Finally, Bullick was a street defect case in which the trial court granted
judgment n.o.v. in favor of the City of Scranton after a jury returned a
verdict in favor of the plaintiff. An en banc panel of this Court affirmed per
curiam.

We note Reinoso’s status as an invitee is not challenged. As defined by the
Restatement (Second) of Torts § 332, “which is utilized by this Court to
determine the status of a plaintiff,”

       (1) An invitee is either a public invitee or a business visitor.
(Footnote Continued Next Page)


                                           -4-
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      Reinoso filed a timely appeal to this Court. A divided panel affirmed

the trial court’s grant of summary judgment.         Following the grant of

reargument, the case now comes before this Court en banc.

      In this appeal, Reinoso contends the trial court erred by finding, as a

matter of law, that the defect on the Heritage property was a trivial defect

warranting summary judgment in favor of Heritage.        Specifically, Reinoso

presents the following question for our consideration:

      I. Did the Trial Court err in finding that as a matter of law that
      the defect on [Heritage’s] property was a “trivial defect” and
      [Heritage was] entitled to Judgment as a Matter of Law where
      the undisputed facts are:

         (a)    At the time of [Reinoso’s] accident, [Heritage] owned
                and maintained the sidewalk where [Reinoso] fell
                which was on Heritage’s premises located at 918 West
                Street Road, Warminster, PA, 18974;

         (b)    [Heritage] undertook the duty to maintain the
                sidewalk at the shopping center where [Reinoso] fell;



                       _______________________
(Footnote Continued)


      (2) A public invitee is a person who is invited to enter or remain
      on land as a member of the public for a purpose for which the
      land is held open to the public.

      (3) A business visitor is a person who is invited to enter or
      remain on land for a purpose directly or indirectly connected with
      business dealings with the possessor of the land.

Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849-50 (Pa. Super.
2012) (quoting Restatement (Second) of Torts § 332).




                                            -5-
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        (c)    [Reinoso] testified in her deposition that she tripped
               and fell on the sidewalk due to a height discrepancy of
               adjoining slabs of the sidewalk;

        (d)    There was over 1 inch height differential between the
               sidewalk slabs at the location where [Reinoso] fell, as
               measured by [Reinoso’s] expert architect/engineer;

        (e)    Anthony Hargaden, the owner of [Lots & Us], and the
               maintainer of the parking lot and sidewalks of
               [Heritage’s] property, expressed his concern to the
               agent of [Heritage] prior to the happening of
               [Reinoso’s] accident, that the defective condition of
               the sidewalk (where [Reinoso] fell) was a tripping
               hazard;

        (f)    [Reinoso’s] architect/engineer expert expressed the
               opinion based on a reasonable degree of engineering,
               architectural, and human factors certainty that:

                  “The subject sidewalk contained a defect at
                  the incident location.      Specifically, the
                  abrupt change in level of the walkway
                  surface that measured over 1 inch high was
                  seriously in excess of the 1/4 inch standard
                  for a tripping danger and constituted a
                  walkway safety hazard. [Reinoso’s] trip and
                  fall was caused by this hazard.” And

        (g)    As a result of the fall [Reinoso] suffered physical
               injuries including but not limited to a fractured left
               hand.

Appellants’ Brief at 4-5.

      When reviewing a trial court’s grant of summary judgment, our

standard and scope of review are as follows:

      [O]ur scope of review is plenary, and our standard of review is
      the same as that applied by the trial court. Our Supreme Court
      has stated the applicable standard of review as follows: [A]n
      appellate court may reverse the entry of a summary judgment
      only where it finds that the lower court erred in concluding that

                                     -6-
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       the matter presented no genuine issue as to any material fact
       and that it is clear that the moving party was entitled to a
       judgment as a matter of law. In making this assessment, we
       view the record in the light most favorable to the non-moving
       party, and all doubts as to the existence of a genuine issue of
       material fact must be resolved against the moving party. As our
       inquiry involves solely questions of law, our review is de novo.

       Thus, our responsibility as an appellate court is to determine
       whether the record either establishes that the material facts are
       undisputed or contains insufficient evidence of facts to make out
       a prima facie cause of action, such that there is no issue to be
       decided by the fact-finder. If there is evidence that would allow
       a fact-finder to render a verdict in favor of the non-moving
       party, then summary judgment should be denied.

Mull v. Ickes, 994 A.2d 1137, 1139-40 (Pa. Super. 2010) (quoting Jones

v. Levin, 940 A.2d 451, 453-54 (Pa. Super. 2007) (internal citations

omitted)).

       In its opinion, the trial court discussed a land owner’s duty to a

business invitee to maintain its premises in a reasonably safe condition.

T.C.O., 12/17/12, at 3. Before addressing the specific issue of whether the

trial court erred as a matter of law in granting summary judgment based on

a “trivial defect,” it is instructive to consider the duty owed by Heritage to

Reinoso as a business invitee that, if breached, could support a finding of

negligence.

       Pennsylvania courts long have recognized that a land owner owes a

duty   to    business invitees to   keep premises    safe.   See Kulka v.

Nemirovsky, 170 A. 261, 262 (Pa. 1934).             “The standard of care a

possessor of land owes to one who enters upon the land depends upon


                                     -7-
J-E02003-14


whether    the   person   entering   is    a    trespassor,   licensee,   or   invitee.”

Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). In Carrender, our

Supreme Court explained:

      Possessors of land owe a duty to protect invitees from
      foreseeable harm. Restatement [(Second) of Torts], §§ 341A,
      343 & 343A. With respect to conditions on the land which are
      known to or discoverable by the possessor, the possessor is
      subject to liability only if he,

           “(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 invitee, 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, supra, § 343. Thus, as is made clear by section
      343A of the Restatement,

          “[a] possessor of land is not liable to his invitees for
          physical harm caused to them by any activity or condition
          on the land whose danger is known or obvious to them,
          unless the possessor should anticipate the harm despite
          such knowledge or obviousness.”

      Restatement, supra, § 343A.

Id. For a danger to be “known,” it must “not only be known to exist, but

. . . also be recognized that it is dangerous and the probability and gravity

of the threatened harm must be appreciated.”                  Id. at 124 (quoting

Restatement (Second) of Torts, § 343A, comment b).

      More recently, this Court reiterated that “[t]he duty owed to a

business invitee is the highest owed to any entrant upon land.                    The

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landowner is under an affirmative duty to protect a business visitor not only

against known dangers but also against those which might be discovered

with reasonable care.” Campisi v. Acme Markets, Inc., 915 A.2d 117,

119 (Pa. Super. 2006) (citation omitted). Further:

      An invitee is entitled to expect that the possessor will take
      reasonable care to ascertain the actual condition of the premises
      and, having discovered it, either to make it reasonably safe by
      repair or to give warning of the actual condition and the risk
      involved therein. Therefore an invitee is not required to be on
      the alert to discover defects which, if he were a mere licensee,
      entitled to expect nothing but notice of known defects, he might
      be negligent in not discovering.       This is of importance in
      determining whether the visitor is or is not guilty of contributory
      negligence in failing to discover a defect, as well as in
      determining whether the defect is one which the possessor
      should believe that his visitor would not discover, and as to
      which, therefore, he must use reasonable care to warn the
      visitor.

Restatement (Second) of Torts § 343, comment d.

      Having determined the duty owed by Heritage to Reinoso as a

business invitee, we turn to whether the trial court erred by granting

summary judgment based on its conclusion that the sidewalk defect on

Heritage’s property was trivial as a matter of law. Again, as a challenge to a

grant of summary judgment, we review the record in the light most

favorable to Reinoso and resolve all doubts as to the existence of a material

fact against Heritage. “If there is evidence that would allow a fact-finder to

render a verdict in favor of the non-moving party, then summary judgment

should be denied.” Mull, 994 A.2d at 1139-40.




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      In its opinion, the trial court stated the facts of this case were not in

dispute and the material facts led to the conclusion that Heritage was not

negligent in permitting the alleged sidewalk defect to exist.          T.C.O.,

12/17/12, at 3.   The only fact considered by the trial court 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.” Id. Viewing the record in the light

most favorable to Reinoso, we agree 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.     However, Reinoso presented

additional facts that the trial court did not acknowledge in its opinion.   In

particular, 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.” Heritage’s Motion for Summary

Judgment, 5/18/12, Exhibit E at 12; Appellant’s Response to Heritage’s

Motion for Summary Judgment, 6/7/12, at 2. Also, “[t]he subject condition

violated applicable codes and standards.”    Heritage’s Motion for Summary

Judgment, 5/18/12, Exhibit E at 12 (citing The BOCA National Building and

Property Maintenance Codes, the ICC Building and Property Maintenance

Codes, Title 34 – Labor and Industry of the Pennsylvania Code, the NFPA

101 Life Safety Code, NSI A117.1/ADAAG, and ASTM F 1637). In addition,




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in his deposition, the owner of Lots & Us was shown a photograph of the

sidewalk where Reinoso fell and the following exchanges took place:

     Q. Would you believe an uneven sidewalk is a maintenance
     problem?

     A. Sure.

                                ***

     Q. Looking at the photograph – I don’t know if you saw that,
     but this was marked at Ms. Reinoso’s deposition today – in
     looking at the circled part of the sidewalk, is that something, if
     you had seen that, would that cause you concern as to a tripping
     hazard?

     (Counsel for Lots & Us registered an objection to the form of the
     question.   Before the question was rephrased, the witness
     responded.)

     A. If I saw it, I would bring it to the attention of the
     management company, yes.

     Q. Did you ever bring that to the attention of the management
     company?

     A. Yes.

Reinoso’s Response to Motion for Summary Judgment, 6/7/12, Exhibit C at

15, 19-20.

     In their briefs, Reinoso and Heritage, as well as amicus curiae

Pennsylvania Association for Justice, cite our Supreme Court’s decision in

Breskin, as a seminal case involving sidewalk defects.      In Breskin, the

Supreme Court announced:

     What 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

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     trivial, that question must be submitted to the jury’. Aloia v.
     City of Washington, [65 A.2d 685, 686 (Pa. 1949)]. “An
     elevation, depression or irregularity in a sidewalk may be so
     trivial that the court, as a matter as 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”. Henn v. City of Pittsburgh, [22 A.2d
     742, 743 (Pa. 1941)]. No definite or mathematical rule can be
     laid down as to the depth or size of a sidewalk depression
     necessary to convict an owner of premises of negligence in
     permitting its continued existence: Emmey v. Stanley Co. of
     America, 10 A.2d 795[, 797 (Pa. Super. 1940)].

Breskin, 113 A.2d at 318 (emphasis added).        In Breskin, the appellant

concluded—through her own observation—that “a triangular break at the

point of occurrence was the cause [of the fall].            This break was

approximately four by five inches in size and was one to one and one-half

inches in depth.” Id. Reversing the compulsory nonsuit entered in favor of

owner of the premises, our Supreme Court determined:

     It cannot be said as a matter of law that the defect in the instant
     case was trivial, and the determination of liability should have
     been left to the jury. In addition, consideration of the crowded
     condition of the sidewalk at the time of the occurrence, and the
     facts surrounding the actions of the men coming from
     defendant's building, prevent a declaration as a matter of law
     that the wife-plaintiff was contributorily negligent. Even though
     the day was clear, the jury could rightfully determine that she
     could not see the defect in time to avoid it. She was under a
     duty to see where she was walking, but she can be charged only
     with the use of ordinary care. The question was for the jury
     under all the circumstances.




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Id.5

       Pennsylvania courts have largely avoided assigning any dividing line

between trivial and non-trivial defects, whether along the railways or on

streets or sidewalks, and whether on municipal or commercial properties. In

Bosack v. Pittsburgh Railways Co., 189 A.2d 877 (Pa. 1963), our

Supreme Court considered whether loose cobblestones along railway tracks

constituted a trivial defect as a matter of law. The Supreme Court stated:

       A railway company, not being an insurer, is required only to
       exercise reasonable care in maintaining the street areas which it
       has the duty of maintaining and repairing. The duty which the
       law imposes upon a railway in such situation is not to keep the
       streets or highways completely free of any defect or irregularity
       but reasonably free of such irregularity or defect as would make
       likely an injury to a pedestrian crossing said street or highway.
       To hold otherwise would impose upon a railway an impossible,
       impractical and unjustifiable burden: German v. McKeesport
       City, [8 A.2d 437, 441 (Pa. Super. 1939)].

Id. at 880 (emphasis in original).

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5
  The great majority of cases cited in the briefs, including Breskin, pre-date
1978 and involved the defense of contributory negligence.                While
contributory negligence remains an affirmative defense in this
Commonwealth, contributory negligence as a complete bar to recovery was
tempered with the 1978 enactment of the Comparative Negligence Act,
which provides, in pertinent part, that “[i]n all actions brought to recover
damages for negligence resulting in death or injury to person or property,
the fact that plaintiff may have been guilty of contributory negligence shall
not bar a recovery by the plaintiff or his legal representative where such
negligence was not greater than the causal negligence of the defendant or
defendants against whom recovery is sought, but any damages sustained by
the plaintiff shall be diminished in proportion to the amount of negligence
attributed to the plaintiff.” 42 Pa.C.S.A. § 7102(a).




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       In Massman v. City of Philadelphia, 241 A.2d 921 (Pa. 1968),6 the

City argued that, under Bosack, triviality of a defect is determined by the

precise measurements of the defect in question.            Our Supreme Court

rejected that argument, holding that “[t]he thrust of [Bosack] is simply one

of economic and physical practicality balanced against the need to protect

against property damage and personal injury.”           Id. at 923.     “The test

established in Bosack is that a paving defect is trivial when ‘it would be

completely unreasonable, impractical and unjustifiable’ to hold defendant

liable for its existence.” Id. (quoting Bosack, 189 A.2d at 881).

       In [Bosack], the irregularity was located five to eight feet away
       from the ordinary pedestrian crossing, and consisted of several
       cobblestones over a width of fifteen to eighteen inches which
       had sunk one to two inches below an adjacent railroad track.
       We readily agree that it would indeed be an unjustifiable burden
       to hold a railroad liable for all minor cases of land subsidence not
       squarely on a public thoroughfare.

       However, in the instant case, the defect was a crack, jagged and
       irregular and clearly discernible upon visual inspection. The crack
       was one-half inch deep, six inches at its widest point, and
       twenty-eight inches long. In addition, it is difficult to conceive of
       a busier thoroughfare in Philadelphia than City Hall courtyard.
       Shoppers, tourists, businessmen and laborers tread this walkway
       at all hours of the day, and it is the focal point of the daily
       weekday exodus from center city at evening rush hour. Under
____________________________________________


6
  In Massman, a bench trial resulted in a verdict in favor of Massman.
Massman sought a new trial on damages and the City of Philadelphia sought
judgment notwithstanding the verdict. The trial court denied both motions.
On appeal from denial of the motions, our Supreme Court affirmed per
curiam on the opinion of the trial judge, the President Judge of the Court of
Common Pleas of Philadelphia County.



                                          - 14 -
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      these circumstances, it was for the trier of fact to determine
      whether or not defendant exercised reasonable care in
      maintaining the premises in safe condition. We cannot say as a
      matter of law that to require the City of Philadelphia to repair
      cracks of this size in the walking lanes of City Hall courtyard
      imposes an impractical and unjustifiable burden.

Id. (quoting Bosack, 189 A.2d at 880).

      More recently, in Mull, this Court reversed the trial court’s grant of

summary judgment based on a trivial defect. The Court acknowledged:

      Although property owners have a duty to maintain their
      sidewalks in a safe condition, property owners are not
      responsible for trivial defects that exist in the sidewalk. Our
      courts have held that an elevation, depression, or irregularity in
      a sidewalk or in a street or highway may be so trivial that, as a
      matter of law, courts are bound to hold that there was no
      negligence in permitting such depression or irregularity to exist.
      Davis v. Potter, [17 A.2d 338 (Pa. 1941)]; see Bosack[,
      supra] (no liability where plaintiff tripped on depression or
      irregularity outside normal pedestrian crossing); see also
      Harrison v. City of Pittsburgh, [44 A.2d 273, 274 (Pa. 1945)]
      (finding that property owners could not be negligent because
      slightly elevated manhole cover in middle of sidewalk was slight
      and trivial).

      “No definite or mathematical rule can be laid down as to the
      depth or size of a sidewalk depression” to determine whether the
      defect is trivial as a matter of law. Breskin[, 113 A.2d at 318];
      Emmey[, 10 A.2d at 797]. Thus, if the defect is not obviously
      trivial, the question of negligence must be submitted to a jury.
      Breskin, 113 A.2d at 318.

Mull, 994 A.2d at 1140.

      Mull claimed she was injured when she stepped into a gap in the

sidewalk outside a building owned by an insurance agency. The trial court

granted summary judgment in favor of the insurance agency, finding the

defect in the sidewalk was trivial. This Court reversed, concluding:

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       In this case, the defect was not so obviously trivial as a matter
       of law to authorize summary judgment. Mull’s fall occurred on a
       winter afternoon, when there was snow on the sidewalk.
       Pictures of the sidewalk taken that day reveal that, although
       there was snow at some places, there was no accumulation at
       the exact place Mull fell. She testified that she did not fall on
       snow; rather, she fell when she stepped into an uneven gap on
       the sidewalk and her ankle twisted. Photographs of the sidewalk
       show that the gap measured approximately two inches, and that
       there was a difference in height of approximately one-and-a-half
       inches between the slabs of concrete that surrounded the gap.
       The slab of concrete at issue sloped towards Appellees’ building.
       The gap was in the direct line of travel of one entering the
       building. [The insurance agency owner] acknowledged that he
       had noticed the gap and slope of the sidewalk prior to Mull’s fall.

       Viewing this evidence in the light most favorable to Appellants,
       they have presented sufficient evidence to establish genuine
       issues of material fact. In reaching this decision, we emphasize
       that there is no definite or mathematical rule that determines
       when a defect is trivial; instead, the case must be determined on
       the individual facts.

Id.

       A similar result was obtained in Shaw v. Thomas Jefferson

University,      80   A.3d    540     (Pa.     Cmwlth.   2013).7   In   Shaw,   the

Commonwealth Court reversed the trial court’s grant of summary judgment

in favor of the University, finding the trial court incorrectly determined that

an elevation change of two to two and one-half inches between sidewalk

panels was a trivial defect.          The Commonwealth Court recognized our

____________________________________________


7
 “Although decisions by the Commonwealth Court are not binding on this
Court, we may adopt their analysis.” Barren v. Commonwealth, 74 A.3d
250, 253, n.1 (Pa. Super. 2013) (citing Beaston v. Ebersole, 986 A.2d
876, 881 (Pa. Super. 2009) (en banc)).



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Supreme Court’s pronouncements that “whether a sidewalk defect is trivial

and whether a defendant has been negligent in permitting the sidewalk

defect to exist should be submitted to the jury when there are genuine

issues of material fact based on the surrounding circumstances.” Shaw, 80

A.3d at 543 (citing Massman, Breskin, and Henn).         The Commonwealth

Court concluded:

     [A]fter review of the record and the surrounding circumstances,
     we conclude that the sidewalk defect is not so obviously trivial
     that summary judgment should have been granted to Appellees.
     The sidewalk is located in Center City, Philadelphia, and is
     heavily trafficked. Shaw also tripped on the defect in front of
     the University’s hospital during lunchtime on a weekday, when
     pedestrian traffic is particularly high. These conditions present
     genuine issues of material fact that must be submitted to the
     jury in order to determine whether Appellees negligently
     permitted the sidewalk defect to remain. As the Supreme Court
     stated in Breskin, “[e]ven though the day was clear, the jury
     could rightfully determine that she could not see the defect in
     time to avoid it. . . . The question was for the jury under all the
     circumstances.” [Breskin, ]113 A.2d at 318.

Id. at 544-45.

     As is evident from our Supreme Court’s decisions in Massman and

Breskin, and from the more recent decisions issued by this Court in Mull

and the Commonwealth Court in Shaw, whether a sidewalk defect is trivial

is not simply a matter of the size or measurement of the defect when there

are genuine issues of material fact based on the surrounding circumstances.

     Here, the surrounding circumstances include not only a height

differential between sidewalk panels, but also a recognized heightened duty

to an individual as an invitee, expert testimony indicating that the height

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differential exceeds safety standards, and testimony from the owner of the

company charged with maintenance of the sidewalk that he considered the

defect a tripping hazard and reported it to the land owner as such. Viewing

this evidence in the light most favorable to Reinoso, we find that she has

presented sufficient evidence to establish genuine issues of material fact.

Therefore, we reverse the order entering summary judgment in favor of

Heritage and remand for further proceedings.

      Order granting summary judgment reversed and case remanded.

Jurisdiction relinquished.

      P.J.E. Ford Elliott, Judge Bowes, Judge Allen, Judge Wecht, and Judge

Jenkins join the Opinion.


      Judge Ott files a Dissenting Opinion in which P.J.E. Bender and Judge

Shogan join.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2015




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