           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Donna Kaminski,                     :
                                    :
                         Appellant :
                                    :
                   v.               : No. 1872 C.D. 2017
                                    : Argued: March 12, 2019
Sosmetal Products, Inc., Milton     :
Soskin, Trustee Under the Soskin    :
Living Trust Dated 11/2/1994,       :
Miriam Soskin, Trustee Under the    :
Soskin Living Trust Dated 11/2/1994 :
and City of Philadelphia            :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION BY JUDGE WOJCIK                                           FILED: April 4, 2019


              Donna Kaminski (Kaminski) appeals the order of the Philadelphia
County Court of Common Pleas (trial court) denying her post-trial motions
following a jury verdict against Kaminski and in favor of Sosmetal Products, Inc.
(Sosmetal), Milton Soskin, Trustee Under the Soskin Living Trust Dated
11/2/1994, and Miriam Soskin, Trustee Under the Soskin Living Trust Dated
11/2/1994 (collectively, Defendants).1 We affirm.
              On August 15, 2015, Kaminski filed a complaint in the trial court
alleging that, with respect to the public sidewalk abutting Sosmetal’s property, “a

       1
          The City of Philadelphia (City) was originally named as a defendant in the action, but
the parties filed a stipulation dismissing the City on December 8, 2016.
dangerous, negligent and/or defective condition, existed on [D]efendants’ premises
and sidewalk . . . and [D]efendants knew or should have known of the existence.”
Reproduced Record (R.R.) at 14a. Kaminski also alleged that she “was lawfully
walking on the . . . sidewalk, when by reason of the negligence of the
[D]efendants, [she] was caused to trip, slip, stumble and/or fall by reason of a
broken, defective, and/or unlevel condition on [D]efendants’ premises and
sidewalk.” Id. She asserted that, based on Defendants’ negligence, she “was
caused to sustain serious physical injury . . . including but not limited to [her] back,
neck, shoulder and arm, as well as a severe shock to the nerves and nervous
system,” as well as aggravation to “pre-existing conditions.” Id. at 15a. Kaminski
attached a photograph as an exhibit depicting the condition of the sidewalk, which
shows a ridge between two sections in the paving. See id. at 19a.
                At trial, Sosmetal admitted that it occupied the property abutting the
public sidewalk where Kaminski fell and that it was responsible for the
maintenance of the public sidewalk under its lease with the property owners, the
Trustees. See R.R. at 115a. With respect to the points for charge, Kaminski asked
the trial court to issue to the jury Pennsylvania Suggested Standard Civil Jury
Instruction (Pa. SSJI (Civ)) 18.80 (2011),2 relating to a property owner/occupier’s
duty of care with respect to a defect or unsafe condition of an abutting public
sidewalk. However, she objected when the trial court granted Defendants’ request

      2
          Pa. SSJI (Civ) 18.80 states:

                 One in possession of land is required to maintain the abutting
                public sidewalks in a reasonably safe condition to prevent or
                eliminate any hazardous or unsafe condition that, upon all the
                circumstances involved, would be an unreasonable risk of harm to
                pedestrians properly using walks.


                                               2
to issue Pa. SSJI (Civ) 18.00,3 relating to a property owner/occupier’s general duty
of care, and Pa. SSJI (Civ) 18.50,4 relating to an owner/occupier’s general duty of
care owed to a licensee. See id. at 246a-249a.5

       3
           Pa. SSJI (Civ) 18.00 states:
                  The standard or level of care owed by an [owner] [occupier] of
                 land to a person who entered the land depends on whether the
                 person who entered was an invitee, a licensee, or a trespasser.

       4
           Pa. SSJI (Civ) 18.50 states:

                   An [owner] [occupier] of land is required to use reasonable care
                 to make the land as safe as it appears, or to disclose to the licensees
                 the risks they will encounter. An [owner] [occupier] of land is
                 liable for harm caused to the licensees by a condition of the land, if

                  1. the [owner] [occupier] of land knows or has reason to know of
                 the condition, should realize that it involves an unreasonable risk
                 of harm, and should expect that the licensees will not discover or
                 realize the danger, and

                   2. the [owner] [occupier] fails to use reasonable care to make the
                 condition safe, or to warn the licensees of the conditions and the
                 risk involved, and

                  3. the licensees do not know or have reason to know of the
                 condition and the risk involved.

       5
          In the transcript, the trial court only references Kaminski’s objection to Pa. SSJI (Civ)
18.00, see R.R. at 247a and 249a, but the transcript shows that all three instructions were issued,
see id. at 307a, and both parties assert that Kaminski objected to Pa. SSJI (Civ) 18.50 as well.
Specifically, the trial court charged the jury as follows:

                  The standard or level of care owed by an owner or occupier of
                 land to a person who entered the land depends on whether the
                 person who entered was an invitee, a licensee or a trespasser. In
                 this case, the plaintiff was a licensee of the defendant. An owner
                 or occupier of land is required to use reasonable care to make the
                 land as safe as it appears or to disclose to the licensees the risks
                 they will encounter.
(Footnote continued on next page…)
                                                   3
                During deliberations, the jury asked the trial court to define the “three
parts” of negligence and whether all three needed to be present to find negligence.
See R.R. at 322a. As a result, the trial court recharged the jury with respect to Pa.
SSJI (Civ) 18.50 and Pa. SSJI (Civ) 18.80. Id.
                Ultimately, the jury returned a verdict in favor of Defendants and
against Kaminski.         R.R. at 333a-336a.         Subsequently, the trial court denied
Kaminski’s post-trial motion alleging error with respect to the jury instructions and
Kaminski then filed the instant appeal of the trial court’s order.6, 7


(continued…)

                  An owner or occupier of land is liable to harm caused by the
                licensees by a condition of the land if: One, the owner or occupier
                of land knows or has reason to know of the condition, should
                realize that it involves an unreasonable risk of harm, and should
                expect that the licensee will not have discovered or realized the
                danger and; two, the owner or occupier fails to use reasonable care
                to make the condition safe or to warn the licensees of the condition
                and the risk involved and; three, the licensees do not know or have
                reason to know of the condition and the risk involved.

                 One in possession of land is required to maintain the abutting
                public sidewalks in a reasonably safe condition to prevent or
                eliminate any hazardous or unsafe condition that, upon all the
                circumstances involved, would be an unreasonable risk of harm to
                pedestrians properly using the walks.

R.R. at 307a.

       6
          Kaminski appealed the trial court’s order to the Superior Court, and the matter was
transferred to this Court. Section 5103 of the Judicial Code, 42 Pa. C.S. §5103; Pa. R.A.P. 751.

       7
           As the Supreme Court has stated:

                 In examining jury instructions, our scope of review is to
                determine whether the trial court committed a clear abuse of
(Footnote continued on next page…)
                                                 4
             Kaminski argues that Pa. SSJI (Civ) 18.80 is the only correct
instruction with respect to Defendants’ negligence because it specifically applies to
sidewalks and the abutting landowner’s duty of care. In Cruz v. Congreso De
Latinos Unido, Inc. (C.P. Phila., No. 1271 Civil Trial Division, filed October 31,
2013), slip op. at 6-7, the trial court held that “[w]here an individual uses a public
sidewalk, permissive use is not at issue, and the individual is not a licensee.” She
submits that, as a result, the trial court erred in issuing Pa. SSJI (Civ) 18.00 and Pa.
SSJI (Civ) 18.50 relating to a property owner/occupier’s general duty of care and
general duty of care owed to a licensee because she was not a licensee. She
contends that this is reversible error because it had a tendency to mislead or
confuse the jury with respect to the material issue of Defendants’ duty of care and
ultimate negligence in this case as evidenced by the jury’s questions relating to the
“three parts” of negligence. Kaminski asserts that Cruz is controlling and that the
cases that Defendants cite8 for the proposition that those using a public sidewalk



(continued…)

             discretion or an error of law controlling the outcome of the case.
             Error in the jury charge is sufficient ground for a new trial if the
             charge, taken as a whole, is inadequate, unclear, or has the
             tendency to mislead or confuse rather than to clarify a material
             issue. A charge will be found adequate unless “the issues are not
             made clear to the jury or the jury was palpably misled by what the
             trial judge said or unless there is an omission in the charge which
             amounts to fundamental error.”

Von der Heide v. Department of Transportation, 718 A.2d 286, 288 (Pa. 1998) (citations and
footnote omitted).

      8
         See Alexander v. City of Meadville, 61 A.3d 218 (Pa. Super. 2012); Peair v. Home
Association of Enola Legion No. 751, 430 A.2d 665 (Pa. Super. 1981); Erb v. Ainslie (C.P.
(Footnote continued on next page…)
                                              5
are licensees are distinguishable because they state such in dicta and do not address
the jury instructions at issue in this case. We do not agree with Kaminski’s
assertions in this regard.
              As the Superior Court has explained:

              Pennsylvania case law has established that a pedestrian
              walking on a public sidewalk is a licensee of the property
              owner. If a visitor to land is legally classified as a
              licensee,

                     A possessor of land is subject to liability for
                     physical harm caused to licensees 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 (c) the
                     licensees do not know or have reason to know of
                     the condition and the risk involved. Restatement
                     (Second) of Torts §342 [(Am. Law Inst. 1965)
                     (Restatement)].

              Liability will only be imposed if all of the criteria in §342
              are met.
Alexander v. City of Meadville, 61 A.3d 218, 221-22 (Pa. Super. 2012) (citations
omitted). See Miranda v. City of Philadelphia, 646 A.2d 71, 74 (Pa. Cmwlth.
1994) (holding that Restatement Section 342 was adopted by the Supreme Court in
Sharp v. Luksa, 269 A.2d 659, 660-61 (Pa. 1970), and that a possessor of land will


(continued…)

Phila., No. 0519 Civil Trial Division, filed January 14, 2014), aff’d, (Pa. Cmwlth., Nos. 1409
C.D. 2013, 328 C.D. 2014, filed June 1, 2015).


                                              6
only be deemed to be negligent if all of the criteria outlined in Section 342 are
proved). See also Peair v. Home Association of Enola Legion No. 751, 430 A.2d
665, 667-68 (Pa. Super. 1981) (applying Restatement Section 342 in a negligence
action initiated by a pedestrian against an adjacent landowner based on injuries
purportedly sustained due to a fall on a sidewalk). As a result, Restatement
Section 342 governs any duty that Defendants owed to Kaminski as a licensee with
respect to the condition of the sidewalk, and the trial court properly explained the
relevant governing legal principles regarding Defendants’ purported negligence to
the jury through Pa. SSJI (Civ) 18.00, Pa. SSJI (Civ) 18.50, and Pa. SSJI (Civ)
18.80.9
               Kaminski’s assertion that she was not a licensee and that Restatement
Section 342 is inapplicable is incorrect, and her reliance on Cruz is misplaced
because it is not a correct statement of the applicable law regarding her status and
Defendants’ purported negligence at the time that she sustained her injuries. As

      9
          As explained in the Subcommittee Note to Pa. SSJI (Civ) 18.50:

                 Under [Restatement Section 342], landowners are subject to
               liability for physical harm caused to a person by a condition on
               their land 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) the possessor fails to exercise reasonable care to make the
               condition safe, or to warn the licensees of the condition and the
               risk involved, and

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


                                               7
stated in Comment h(1) of Restatement Section 330, “[i]ncluded under licensees,
among others, are . . . [o]ne whose presence upon the land is solely for his own
purposes, in which the possessor has no interest, and to whom the privilege of
entering is extended as a mere personal favor to the individual, whether by express
or tacit consent or as a matter of general or local custom.” Restatement (Second)
of Torts §330 cmt. h(1) (Am. Law Inst. 1965). Thus, the trial court’s holding in
Cruz that an individual is not a licensee with respect to the adjoining landowner
when using a public sidewalk is not a correct statement of the law.
             As explained in the Subcommittee Note to Pa. SSJI (Civ) 18.50,
“Pennsylvania cases define a gratuitous licensee as a person permitted to enter
upon land of another solely for his or her own purposes . . . [and] the matter is now
covered by section 330, comment h(1), including such persons in the definition of
licensee.” (Citations omitted.) See also Sharp, 269 A.2d at 660-61 (“Plaintiff was
a gratuitous licensee-the right given him to use the ladder and the loft, not being a
part or provision of the lease, was solely for his accommodation, benefit and
convenience, and not in any way for the benefit of the defendant. There was no
proof of any latent or concealed defect or of any affirmative negligence, or of any
dangerous condition known to defendant and unknown to plaintiff.”) (citations
omitted); Palange v. City of Philadelphia, 640 A.2d 1305, 1308-09 (Pa. Super.
1994) (“On the day in question, [the plaintiff] utilized [the restaurant’s] sidewalk
for her own purpose of reaching her destination. At most, [the restaurant] tacitly
permitted such use of its sidewalk; in no event, however, did [the restaurant]
encourage or desire such use. Accordingly, under the rubrics of the Restatement
rules and the law of this Commonwealth, [the plaintiff] must be categorized as a
licensee rather than a public invitee.”); Komlo v. Balazick, 82 A.2d 706, 709 (Pa.


                                         8
Super. 1951) (“Plaintiff was clearly a gratuitous licensee, as defined in [the former]
section 331 of the Restatement of Torts: ‘a licensee whose presence upon the land
is solely for the licensee’s own purposes, in which the possessor has no interest,
either business or social, and to whom the privilege of entering is extended as a
mere favor by express consent or by general or local custom.’”).
              Based on the forgoing, it is clear that the requested use of Pa. SSJI
(Civ) 18.80, without the additional use of Pa. SSJI (Civ) 18.00 and Pa. SSJI (Civ)
18.50, would not have fully explained to the jury Defendants’ duty with respect to
Kaminski’s use of a public sidewalk adjacent to Defendants’ property, and any
purported negligence based on injuries flowing from a breach of Defendants’ duty
with respect to the condition of that sidewalk.10 The trial court did not commit a
clear abuse of discretion or error of law controlling the outcome of this case by
issuing the above standard instructions as they fully and correctly explained the
applicable law with respect to Kaminski’s status at the time of her fall and
Defendants’ purported duty, negligence, and liability. In sum, the trial court did
not err in issuing Pa. SSJI (Civ) 18.00, Pa. SSJI (Civ) 18.50, and Pa. SSJI (Civ)
18.80 to the jury in this case, and Kaminski’s claims to the contrary are without
merit.
              Accordingly, the trial court’s order is affirmed.




                                           MICHAEL H. WOJCIK, Judge

          As explained in the Subcommittee Note to Pa. SSJI (Civ) 18.00, “[t]he obligation to a
         10

licensee is that of exercising reasonable care to warn of dangerous conditions known to the
possessor, and is therefore distinguished from the obligation to an invitee who has the implied
assurance that the land has been made safe.” (Citations omitted.)


                                              9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Donna Kaminski,                     :
                                    :
                         Appellant :
                                    :
                   v.               : No. 1872 C.D. 2017
                                    :
Sosmetal Products, Inc., Milton     :
Soskin, Trustee Under the Soskin    :
Living Trust Dated 11/2/1994,       :
Miriam Soskin, Trustee Under the    :
Soskin Living Trust Dated 11/2/1994 :
and City of Philadelphia            :



                                 ORDER


           AND NOW, this 4th day of April, 2019, the order of the Philadelphia
County Court of Common Pleas dated August 1, 2017, is AFFIRMED.




                                   __________________________________
                                   MICHAEL H. WOJCIK, Judge
