J-A05037-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    BETSY A. ZIMMERMAN AND GLENN               :   IN THE SUPERIOR COURT OF
    S. SINKO                                   :        PENNSYLVANIA
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 1263 WDA 2019
    ONE ADAMS PLACE, L.P., ADAMS               :
    PLACE PROPERTIES, INC., AND A.R.           :
    BUILDING COMPANY, INC.                     :

                  Appeal from the Order Entered July 29, 2019
     In the Court of Common Pleas of Butler County Civil Division at No(s):
                                 AD-17-10197


BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                           FILED MARCH 11, 2020

        Betsy A. Zimmerman (Zimmerman) and Glenn S. Sinko (Sinko), who

are husband and wife, appeal from the order of the Court of Common Pleas of

Butler County (trial court) granting the motion for summary judgment filed by

One Adams Place, L.P., Adams Place Properties, Inc., and A.R. Building

Company, Inc. (Owners). We reverse.

        We take the following factual background and procedural history from

the trial court’s opinion and our independent review of the certified record.

The Owners own an office-building complex with an adjoining parking lot in

Butler County, Pennsylvania. Zimmerman and Sinko are lawyers who own the

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*   Retired Senior Judge assigned to the Superior Court.
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law firm, Zimmerman & Sinko, and, at the time of the incident underling this

appeal, were tenants at the Owners’ office building and had use of the

building’s parking lot.

      The parking spaces in the lot are lined to designate proper parking

spaces.   On March 9, 2015, at approximately 5:30 p.m., as Zimmerman

walked through the parking lot toward her car parked in one of the designated

parking spaces, a cracked and raised section of asphalt caught her left foot,

causing her to trip and fall, resulting in a fracture of her left wrist and scrapes

to her hands and knees. Zimmerman did not see the raised portion of the

asphalt nor were there any signs warning of unsafe conditions in that area.

The Owners did not discover the defect until after Zimmerman’s incident.

      Immediately after her fall, Zimmerman telephoned Sinko, who was still

inside their law office.     Sinko went outside to the parking lot where

Zimmerman was located sitting on the ground. She identified her location as

the spot where she had fallen.      Sinko photographed the area identified by

Zimmerman.      Sinko and Zimmerman then went to the Passavant Hospital

emergency room to obtain medical care for Zimmerman.             Later that same

evening, Sinko and his son returned to the scene and measured the crack in

the parking lot asphalt where Zimmerman fell and determined that the

elevation difference measured 1¼ inch.




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       The Owners employed one maintenance man, Charles Sprague

(Sprague).1     As a part of his duties, Sprague walked the parking lot on a

weekly basis when he would “look around” to “make sure everything’s okay.”

(Sprague Deposition, at 14). He would do any necessary cleanup and report

any other needed lot maintenance to his boss, but parking lot maintenance

like sealing cracks would be “subbed out” to an appropriate company.

Sprague did not detect the crack in the asphalt that allegedly caused

Zimmerman’s fall. Zimmerman filed a Complaint, later amended, against the

Owners, asserting that they breached a duty owed to a business invitee by

allowing the elevated condition of the parking lot to exist, resulting in injuries

to Zimmerman. Sinko also filed a loss of consortium claim.

       After the pleadings were closed, the Owners filed a Motion for Summary

Judgment, alleging that the “discrepancy” in the elevation of one discrete part

of the parking lot was “trivial” as a matter of law.     It also contended that

because the defect was in a remote portion of the parking lot that had minimal

pedestrian traffic, it could not be charged with negligence for all defects in

pavement, even if they were not trivial.

       After argument, the trial court granted Owner’s Motion for Summary

Judgment finding that the 1¼ inch height differential in the parking lot



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1Mr. Sprague has been A.R. Building Company’s maintenance man for eight
years. (See Sprague Deposition, at 9).


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pavement was “slight and clearly of a trivial nature” and that “[i]t would be

unreasonable and unpractical to expect” the Owners to keep the lot “free from

such a minor crack in the pavement.” (Trial Ct. Op., at 8-9). Although it also

indicated that Zimmerman parked in a “distant portion of the lot which had

minimal pedestrian traffic,” it did not grant the motion on this basis because

it acknowledged that she did fall in a designated parking area of the lot. (Id.

at 8). Zimmerman and Sinko timely appealed2 and both they and the trial

court complied with Rule 1925. See Pa.R.A.P. 1925.

       In their appeal, Zimmerman and Sinko contend that the trial court erred

in finding that Owners were not negligent because the 1¼-inch pavement

defect was trivial. They contend that the defect was not trivial and Owners

breached a duty it owed to them as business invitees by failing to discover

and correct the raised asphalt on which Zimmerman tripped causing her to




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2 Our standard of review on an appeal from the grant of a motion for summary
judgment is well-settled. A reviewing court may disturb the order of the trial
court only where it is established that the court committed an error of law or
abused its discretion. As with all questions of law, our review is plenary.

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. Only where there is no genuine issue as
to any material fact and it is clear that the moving party is entitled to a
judgment as a matter of law will summary judgment be entered.

Renna v. PPL Utilities, Inc., 207 A.3d 355, 367 (Pa. Super. 2019) (citations
omitted).


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break her wrist. Before addressing the merits, to give context, we must briefly

discuss the duty of property owners to tenants for defects in their property.

                                      1.

      To hold a defendant liable for negligence, a plaintiff must prove: “(1) a

legally recognized duty that the defendant conform to a standard of care; (2)

the defendant breached that duty; (3) causation between the conduct and the

resulting injury; and (4) actual damage to the plaintiff.” Truax v. Roulhac,

126 A.3d 991, 997 (Pa. Super. 2015). The level of duty owed to an individual

depends on her status. See id.

      Here, it is undisputed that Zimmerman, a tenant of the Owners, was a

business invitee. In determining the scope of the duty owed by a property

owner to a business invitee, Pennsylvania courts have adopted Section 343 of

the Restatement (Second) of Torts which provides:

      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.




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Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 85 (Pa. Super.

2015) (en banc), appeal denied, 117 A.3d 298 (Pa. 2015) (quoting

Restatement (Second) of Torts, § 343). Importantly:

             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.

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

      However, when a defect is “trivial”, because it does not involve an

unreasonable risk of harm, then a possessor of land is not responsible for

discovering, warning or fixing that defect. In Mull v. Ickes, 994 A.2d 1137,

1140 (Pa. Super. 2010), we set forth the general rule regarding trivial defects

stating that:

      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. (citations omitted).

      We went on to note that there is “[n]o definite or mathematical rule that

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.” Id. (citations and internal

quotation marks omitted). What is trivial is determined primarily by the size

of the irregularity, “[t]he extent of irregularity which may be present in a

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street . . . varies with other circumstances, such as amount of travel, actual

location of the rise or depression, character of material with which the

pavement or walk is constructed, nature of the irregularity, and other

circumstances.” Henn v. City of Pittsburgh, 22 A.2d 742, 743 (Pa. 1941)

(internal quotation marks and citations omitted); see also Mull, 994 A.2d at

1141 (the fact that a defect is located in line of travel is relevant in determining

a defendant’s negligence). If the defect is not obviously trivial, the question

of negligence then must be submitted to a jury.

                                        2.

      The issue in this appeal then is whether the pavement defect of 1¼ inch

in a parking lot where Zimmerman, a business invitee, was traversing to get

to her parked car is “trivial” as matter of law.         While other factors are

mentioned, both parties rely on cases addressing the size of the irregularity

as determining whether it is trivial or not.

      While we have stated that there is no mathematical formula, Owners

suggest that case law has held that a discrepancy in elevation less than two

inches is per se trivial, and, as a matter of law, does not constitute negligence.

It cites to the following cases: Bosack v. Pittsburgh Railways Co., 189

A.2d 877, 879-81 (Pa. 1963) (holding a depression or irregularity of

cobblestones with about 1½ or two inches, as a matter of law, does not

constitute negligence); Harrison v. City of Pittsburgh, 44 A.2d 273, 273

(Pa. 1945) (a two inch elevation of a manhole cover in a sidewalk was slight


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and of trivial nature); McGlinn v. Philadelphia, 186 A. 747 (Pa. 1936) (the

difference in the level of the ends of two abutting curbstones of a ½ inch

constitutes reasonable safety and appellant failed to prove any act of

actionable negligence); Newell v. Pittsburgh, 123 A. 768 (Pa. 1923) (the

variation of 1½ inches between adjoining ends of flagstones in a street

crossing is not evidence of negligence imposing liability for injuries to a

pedestrian who fell at that location because a city is not required to maintain

flagstones in street crossings in a perfectly level and even condition).

        We note, though, that those involve irregularities in the public street or

sidewalk, where municipalities are normally only secondarily liable and do not

involve concrete or asphalt paving. Furthermore, individuals traversing public

streets and sidewalks to get from one place to another are considered

licensees to whom property owners have a lessor standard of care than they

have to business invitees.3 See Restatement (Second) of Torts § 342; See

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3   Restatement (Second) of Torts § 342 provides:

        A possessor of land is liable for physical harm caused to a licensee
        by a condition on the land if, but only if:

              (a) the possessor knows or has reason to know of the
        condition and should realize that it involves an unreasonable risk
        of harm to such licensees, and should expect that they will not
        discover or realize the danger, and

               (b) he fails to exercise reasonable care to make the
        condition safe, or to warn the licensees of the condition and the
        risk involved, and



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also Palange v. City of Philadelphia, 640 A.2d 1305 (Pa. Super. 1994);

Robinson v. City of Philadelphia, No. 1255 C.D. 2011, 2012 WL 8678953,

at *3 (Pa. Cmwlth. 2012).

       However, Zimmerman and Sinko cite to other cases where similar

defects that were less than two inches were held not to be trivial.           See

Massman v. City of Philadelphia, 241 A.2d 921, 924 (Pa. 1968) (case sent

to the jury where plaintiff-licensee was injured on a ½ inch deep, 6 inch wide,

28 inch long crack in the sidewalk); Breskin v. 535 Fifth Ave., 113 A.2d

316, 318 (Pa. 1955) (reversing nonsuit against a property owner where the

trial court found a 1½ deep defect in sidewalk trivial, and plaintiff, who was a

licensee, might not have been able to see it); Henn, 22 A.2d at 744 (affirming

that hole sufficient to catch shoe in direct line of travel of licensee on sidewalk

presents the jury a question regarding negligence); Reinoso, 108 A.3d at 89-

90 (summary judgment finding defect trivial reversed where plaintiff was

business invitee and pavement height deferential of 5/8 inches exceeded

safety standard and maintenance company considered it a hazard); Mull, 994

A.2d at 1140-41 (summary judgment reversed where 1½ inch deep and 2

inch wide defect pavement in direct line of travel of licensee to building was

not “indisputably trivial”).



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             (c) the licensees do not know or have reason to know of the
       condition and risk involved.


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      To determine whether a defect is trivial depends on the totality of the

circumstances. As the cases relied on by the parties show, there is a fine line

between what is considered trivial and what is considered not trivial. This falls

within what our Supreme Court stated in Breskin, 113 A.2d at 317-18, as “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.”

      Zimmerman, a business invitee, was expected to travel across the

parking lot to her parked vehicle. Because the defect is in this “shadow zone”

between a trivial and non-trivial defect, it is for a jury to decide whether the

depth of this particular defect is trivial, if the path used by Zimmerman was

in a trafficked area of their property, as well as if the Owners had a duty to

discover the defect.       Accordingly, because Owners are not entitled to

judgment as a matter of law, we reverse the court’s order granting summary

judgment in their favor.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2020

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