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                                    2015 PA Super 8

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

                            Appellant

                       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(s): 2010-07483


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

DISSENTING OPINION BY OTT, J.:                         FILED JANUARY 14, 2015

       Because I do not believe the trial court committed an error in granting

summary judgment1 by determining the 5/8 inch misalignment between

sidewalk blocks was, as a matter of law, a trivial defect, I respectfully

dissent.

       The standard used to evaluate the nature of a defect has been

succinctly set forth as follows:



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1
 The majority has set forth the well-known standard for review of a grant of
summary judgment.
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      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
      trivial, that question must be submitted to the jury’. Aloia v.
      City of Washington, 361 Pa. 620, 623, 65 A.2d 685, 686. “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, 343 Pa.
      256, 258, 22 A.2d 742, 743. 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: Emmery v. Stanley Co. of
      America, 139 Pa.Super. 69, 72, 10 A.2d 795.

Breskin v. 535 Fifth Avenue, 113 A.2d 316, 318 (Pa. 1955).

      The determination that a defect may be deemed trivial as a matter of

law is derived from the recognition that “[s]light irregularities in the surface

of sidewalks … are unavoidable in a city, and are so common as not to

constitute any undue hazard to pedestrians.”         Van Ormer v. City of

Pittsburgh, 31 A.2d 503 (Pa. 1943).        Further, “[t]o impose a burden of

liability on either municipality or property owner for an imperfection as

common and usual … would put an intolerable burden on the property

owner.” Id. at 504.

      The notion that sidewalks are inherently imperfect, containing defects

that might cause a person to fall, but are nonetheless not actionable, has

been explained in a common sense manner:

      To impose a burden of liability on either municipality or property
      owner for an imperfection as common and usual as that relied on

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        to create liability in this case [a hole two inches wide and one
        inch deep] would put an intolerable burden on the property
        owner and the city…

German v. City of McKeesport, 8 A.2d 437 (Pa. Super. 1939).2

        Thus, the legal basis upon which a defect is deemed trivial and non-

actionable recognizes that even a trivial defect could cause a person to trip,

and indeed, was formulated through cases in which the plaintiff in each

instance claimed to have fallen and suffered injury.       However, recognition

that the defect was a tripping hazard, by itself, is not determinative of the

question whether the defect presents a question for the jury.

        The determination of whether the defect is trivial must be considered

in light of the duty owed to, in this case an invitee, by the possessor of the

land.    This duty is set forth in the Restatement (Second) of Torts, § 343,

which states, in relevant part:

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

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2
  This “common and usual” concept appears in case law through the years,
including Alston v. Commonwealth and PennDOT, 20 Pa. D. & C. 5th 49
(2010), aff’d, 31 A.3d 331 (Pa. Cmwlth. 2011)(unpublished memorandum).
In Alston, a 5/8 inch height differential was determined to be trivial as a
matter of law. The trial court noted the factual admission by the City of
Philadelphia that there are thousands of elevation differences of less than
one inch on the sidewalks of Philadelphia. Alston, 20 Pa. D. & C. 5th at *5.
While the holding in Alston is not binding on our Court, the factual
admission is enlightening.



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Restatement (Torts) 2d, § 343(a) (emphasis added).

       Although the duty owed to an invitee is the highest duty imposed upon

a landowner. See Charlie v. Erie Ins. Exchange, 100 A.3d 244, 254 (Pa.

Super. 2014), the standard for determining liability, based upon the nature

of the defect, is the same regardless of whether the complainant is an

invitee or licensee. See Restatement (Second) of Torts, §§ 342(a), 343(a).

The determining factor for landowner liability is whether the condition

represents an “unreasonable risk of harm.” 3

       With these standards and principles in mind, I examine the specific

circumstances of the incident, as required by our Supreme Court. Breskin,

supra.

       I quote the entire statement of the accident as related by Reinoso in

her brief.

       On May 15, 2009, Plaintiff Guadalupe Reinoso, date of birth
       August 1, 1948, fell and was injured while walking on the
       defendant’s sidewalk. At the time of the accident, the plaintiff
       was wearing flat shoes. She was at the location of the accident
       serving as a volunteer for a charitable cause known as “Child of
       Yours,    A    Program     to    Benefit    Abused    Children.”

       The defendants have admitted that they owned, managed,
       maintained and/or were the landlord of the Warminster Town
       Center which is located at 918 West Street Road, Warminster,
       PA 18974. On the property is the shopping center and sidewalk
       where Mrs. Reinoso fell. At the time of the accident, plaintiff was
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3
  Because the only issue before us is whether the defect represented an
unreasonable risk or was trivial, we need not be concerned about the other
aspects of the landowner’s duty to an invitee.



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         walking with her granddaughter, holding hands and when they
         arrived at a point where the sidewalk was lifted, both plaintiff
         and her granddaughter tripped and fell. Plaintiff testified further
         that she tripped over the elevated portion of the sidewalk
         causing her to fall.

Reinoso Brief, at 6.

         Thus, the relevant factual history, as related by Reinoso, is that she

was walking with her granddaughter, while wearing flats, and she tripped

and fell over an uneven portion of the sidewalk. She does not report that

the sidewalk was crowded, and her deposition states that she tripped in the

late afternoon and that it was sunny. See Reinoso Deposition, 11/1/2011,

at 17.

         However, Reinoso complains that the trial court failed to account for

the fact that her expert concluded that the 5/8 inch change in height (the

defect) was well above the 1/4 inch tripping hazard described in various

standards and codes.         The expert also claimed, “The defect was not

highlighted in any way.” See Expert Report at 8. However, that statement

is clearly belied by the photograph attached to the expert report, where the

height difference is demonstrated by a dark line running precisely through

the spot where Reinoso indicated she fell. Additionally, the owner of Lots N’

Us, one of the co-defendants, had expressed his concern prior to the

incident that the defect constituted a tripping hazard. The majority agrees

that it was error for the trial court to ignore these “additional facts,” and

therefore, the issue of liability was properly for a jury to determine.




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      I do not believe these “additional facts” negate the trial court’s

determination that the defect was trivial.   The co-defendant merely stated

his non-expert opinion that the defect represented a tripping hazard. The

expert opined the defect constituted a tripping hazard and attached a

specific height, 1/4 inch, to define a tripping hazard. However, our Supreme

Court has prohibited the introduction of a “definite or mathematical rule.”

See Breskin, supra.      Because a trivial defect can cause a trip and fall

without imposing liability, what is determinative is whether the defect posed

an unreasonable risk of harm to Reinoso.

      A review of trip and fall cases in which a height difference in sidewalks

or walkways was a factor provides context for this determination. In Mull v.

Ickes, 994 A.2d 1137 (Pa. Super. 2010), a defect consisting of a one and

one-half inch height differential, a slight grade in the sidewalk block and a

two inch gap in the sidewalk could not be considered a trivial defect as a

matter of law. In Landy v. Romeo, 417 A.2d 1260 (Pa. Super. 1979), a

fourteen inch wide, two inch deep defect, that was covered by leaves, was

not trivial.   Finally, in Breskin, supra, a four to five inch break in the

sidewalk, one to one and one-half inches deep, undetectable because of the

crowded sidewalk, was not trivial.

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

one and one-half inch depression in cobblestones between railroad tracks

was insufficient as a matter of law to impose liability. In German v. City of

McKeesport, supra, a two inch wide, one inch deep irregularity, filled with

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dirt and seemingly solid, was similarly insufficient. In Van Ormer, supra, a

one-inch deep depression in the paving stones did not, as a matter of law

impose liability.

       In the cited cases where a trivial defect was found, there are attributes

to the defect other than height differential. In Mull, Landy and Breskin,

the height differentials were all greater than one inch and had other gaps or

defects in the walkway, or the hazard was otherwise hidden. None of those

additional circumstances are found in the instant case.

       In Bosack, German, and Van Ormer, the defect was described

mainly in terms of height differential, without other problems. Furthermore,

the height differentials in those cases were all greater than the 5/8 inch

differential presented instantly.4

       Additionally, Reinoso’s expert noted that defects similar to the one at

issue were common to the area and were, at least partially, caused by the

root systems of the trees that were planted next to the sidewalks.         See

Expert’s Report at 7, 8, 11-13.                It is a situation common to the

urban/suburban experience, where trees are routinely planted next to

sidewalks.     I would submit this aspect of the expert report echoes the



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4
  I do not intend to suggest that a height difference alone can never be
sufficient to overcome designation as a trivial defect. Case law is clear that
all such determinations must be made on a case-by-case basis.




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appellate courts’ continuing discussion of the common and usual defects

found on sidewalks.

       Our Supreme Court and the Restatement both permit the trial court to

make a determination that certain defects are too trivial to impose legal

liability upon the landowner, regardless of the fact the defect caused a

person to trip and fall.5

       Guided by the above discussed case law, I conclude the trial court did

not commit an error of law in determining the 5/8 inch height differential, an

undisputed fact, without any other relevant attendant circumstances,

represents the type of common and usual defect inherently found in

sidewalks that makes such defect obviously trivial as a matter of law.

Reinoso presented no facts, other than the height difference, to support her

claim the sidewalk had been negligently maintained.    Our Court’s decision in

German v. City of McKeesport, supra, also stated:

       There are certain reasonable risks that every person who uses
       city streets must assume as inconveniences to be set off against
       the advantages of city life (Morris v. Philadelphia, supra [45
       A. 1068 (Pa. 1900)]), and this case presents one of them.

Id., 8 A.2d at 441. I believe that statement applies herein.

       Accordingly, I respectfully dissent.
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5
   I believe, given the evidentiary record presented herein, the majority
decision makes it virtually impossible for a trial court to determine a defect
is trivial and be upheld. This result would effectively overrule existing case
law upon which the trial court is entitled to rely in granting summary
judgment.



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      President   Judge   Emeritus   Bender   and   Judge   Shogan   join   this

dissenting opinion.




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