J-S87024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KATHRYN GALLAGHER                                    IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellant

                       v.

KRISTEN RICHARDS

                            Appellee                       No. 960 MDA 2016


                  Appeal from the Order Entered May 17, 2016
                In the Court of Common Pleas of Dauphin County
                    Civil Division at No(s): 2015-CV-1859-CV

BEFORE:       LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                                 FILED MARCH 13, 2017

        Appellant,   Kathryn     Gallagher,    appeals   from   the   order   granting

summary judgment in favor of Appellee, Kristen Richards.                Among other

things, Gallagher contends material issues of fact exist as to whether she

knew or had reason to know of the water pipe1 over which she tripped on

November 12, 2014. We affirm.

        We state the facts as construed in Gallagher’s favor. Gallagher has

resided in an apartment in a multi-unit low-rise rowhome in Harrisburg since

October 2012, or just over two years prior to her accident. Her rowhome

has two entrances: a main entrance on Forster Street and a side entrance on

Green Street. Richards resides on Green Street in a rowhome just two doors
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
  The record also refers to the pipe as a valve, valve box, cover, water
cover, or valve cover. For the convenience of the parties, we use “pipe.”
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away from Gallagher’s home — that is, two rowhomes separate Gallagher’s

rowhome from Richards’ rowhome.

      Gallagher uses the Green Street entrance 95% of the time. N.T.

Gallagher Dep., 9/11/15, at 22. Ever since she moved to her apartment in

2012, Gallagher was aware of pipes protruding from the Green Street

sidewalk, including the pipe in front of Richards’ home. Throughout that

time, Gallagher believed the pipes were unsafe, but she did not contact the

water company because she did not know the pipes were water pipes. Id. at

38. She would walk around the pipes and could not ever recall tripping over

any pipe prior to her accident. Id. at 32.

      Gallagher used the Green Street entrance at least once or twice per

day to commute to work or walk her dog. Prior to her accident, Gallagher

often walked her dog on Green Street, either on the brick sidewalk adjacent

to her rowhome and Richards’ rowhome, or on the opposite sidewalk.

Gallagher would walk on the portion of the sidewalk where the accident

occurred four to six times per week. N.T. Gallagher Dep. at 26, 29. It was

fairly common for Gallagher to look down at the sidewalk when she walked

her dog because she was vigilant about ensuring her dog did not eat or step

in something lying on the sidewalk. Id. at 28.

      The early morning of November 12, 2014, was a cold, clear day with

no precipitation. N.T. Gallagher Dep. at 43-44.   Gallagher walked her dog

that morning, but does not recall whether she did so on Green Street. Id. at

44. After she returned from walking the dog, she exited on Green Street

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around 10:30 a.m. Id. at 60. She intended to walk to her car, which was

parked a block away, and drive to work.          Gallagher testified that she was

wearing her winter coat and carrying a drink — either a water bottle or

coffee — and a cell phone in one hand, and her work bag in the other hand.

Id. at 45-46. Gallagher was also wearing eyeglasses, as she is farsighted,

and flat rubber-soled shoes. She was on medication, but the medication did

not affect her balance or vision. Id. at 49. Gallagher said she was thinking

about her work day. Id. at 62.

       As she walked out of her Green Street exit and proceeded toward her

car, Gallagher first passed two pipes with a low profile — pipes on which she

could potentially stub her toe. N.T. Gallagher Dep. at 50-52.           Then, she

tripped on the pipe in front of Richards’ door and fell. Id. at 56. Gallagher

saw the pipe as she tripped. Her right toe or toes hit the pipe, which was

“almost four inches off the ground.” Id. at 53, 55.2 She struck the pipe with

sufficient force that she was “elevated up into the air” before falling straight

forward. Id. at 53. As a result, she broke her left kneecap and had other

injuries. Id. at 50. She said that she did not injure her head because she

“was sliding.” Id.

       Gallagher explained that she did not see the pipe prior to falling

because she usually walks with her head up in order to be aware of her

____________________________________________
2
  Gallagher first testified that her right toe hit the pipe and later testified that
all of her toes on her right foot hit the pipe.



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surroundings. N.T. Gallagher Dep. at 57. Gallagher variously testified that

she (1) “probably was not looking” at the sidewalk that morning, or (2)

might or might not have glanced down at the sidewalk. Id.                She

remembered that she was looking at her car that was parked further down

the block. Gallagher acknowledged that if she was paying greater attention,

she could have avoided tripping and falling, and that if she was located five

feet in front of the water pipe and looked down, she would have seen it. Id.

at 58-59. Gallagher did not testify that her view of the pipe was obstructed

or concealed (by other pedestrians or leaves, for example) or that she was

distracted by an outside influence (such as another pedestrian or the sound

of a vehicle horn).

      Gallagher contacted the water company a few weeks after she fell.

After a water company crew examined and photographed the area, the

company sent an e-mail dated December 1, 2014, that disclaimed

responsibility and said it was “the home owner’s responsibility for anything

that is on their sidewalk.” N.T. Gallagher Dep. at 34.

      On March 11, 2015, Gallagher sued Richards for negligence, alleging

that Richards failed to “eliminate the dangerous condition created” by the

raised pipe in the sidewalk in front of her house, failed to ensure the pipe

was flush with the sidewalk, and failed to repair the raised pipe. Am. Compl.

at ¶ 7. After discovery, Richards filed a motion for summary judgment. The

court heard argument and then granted Richards’ motion on May 17, 2016.




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In a memorandum,3 the trial court explained that Gallagher walked across

Richards’ sidewalk as a licensee, and that, under Section 342 of the

Restatement (Second) of Torts (1965), Richards had no duty to Gallagher

that would give rise to liability for negligence. The court stated:

             “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.” Rossino v. Kovacs, 553 Pa. 168, 172, 718
          A.2d 755, 757 (1998) (citing Restatement of Torts
          (Second) § 342).

                                       *       *   *

             Plaintiff clearly testified that she was very familiar with
          the condition of the sidewalk in front of Defendant’s
          residence, having walked in front of it approximately three
          to six times a week for over two years. Furthermore,
          Plaintiff clearly testified that she considered the pipe
          unsafe since the first time that she noticed it. Based on
          Plaintiff’s testimony, Defendant cannot be held liable
          because Plaintiff knew about the condition and was aware
          of the risk involved. See Himes v. New Enter. Stone &
          Lime Co., 399 Pa. Super. 301, 308, 582 A.2d 353, 357
          (1990) (“a duty on the part of the possessor of the land is
          not present in the present case because Ms. Himes knew
          or had reason to know of the condition of the bridge and
          the risk involved in traversing it.”).

Trial Ct. Op. at 2-3.

____________________________________________
3
 Gallagher’s brief did not include the trial court’s memorandum opinion,
which is required by Pa.R.A.P. 2111(b).


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J-S87024-16

      Gallagher timely appealed and raises the following issues:

              A. Whether the trial court erred by granting [Richards’]
           motion for summary judgment when there existed genuine
           issues of fact as to whether Ms. Gallagher knew or had
           reason to know of the water pipe and the risk involved.

              1. Whether the water pipe was sufficiently obvious and
              open at the time Ms. Gallagher fell.

              2. Whether a reasonable person in Ms. Gallagher’s
              position would have forgotten about the pipe’s presence
              in the moments before falling.

           B. Whether homeowners should be insulated from liability
           solely on the basis that an open and obvious defect, of
           which they are aware, is also known to a pedestrian.

Gallagher’s Brief at 3-4.

      The standard for reviewing a grant of 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.

              In evaluating the trial court’s decision to enter summary
           judgment, we focus on the legal standard articulated in the
           summary judgment rule. The rule states that where there
           is no genuine issue of material fact and the moving party
           is entitled to relief as a matter of law, summary judgment
           may be entered. Where the non-moving party bears the
           burden of proof on an issue, he may not merely rely on his
           pleadings or answers in order to survive summary
           judgment. Failure of a non-moving party to adduce
           sufficient evidence on an issue essential to his case and on
           which it bears the burden of proof establishes the
           entitlement of the moving party to judgment as a matter
           of law. Lastly, we will 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.

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J-S87024-16


Toro v. Fitness Int’l, LLC, 150 A.3d 968, 972 (Pa. Super. 2016) (citation

omitted).

     Here, Gallagher sought to hold Richards liable for negligence.

         In order to hold a defendant liable for negligence, the
         plaintiff must prove the following four elements: (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.

Nationwide Mut. Fire Ins. Co. v. Modern Gas, 143 A.3d 412, 415 (Pa.

Super. 2016).     The first requirement, duty, “is an essential element of a

negligence claim,” Alderwoods (Pa.), Inc. v. Duquesne Light Co., 106

A.3d 27, 31 (Pa. 2014), and whether a defendant has a duty that will give

rise to liability for negligence is a question of law as to which our scope of

review is plenary. Newell v. Montana West, Inc., ___ A.3d ___, 2017 WL

219102, *2 (Pa. Super., Jan. 19, 2017).

     When she used the sidewalk in front of Richards’ rowhome, Gallagher

was acting as a licensee. See Alexander v. City of Meadville, 61 A.3d

218, 221-22 (Pa. Super. 2012); see generally Rossino v. Kovacs, 718

A.2d 755, 757 (Pa. 1998) (defining a “licensee” as “a person who is

privileged to enter or remain on land only by virtue of the possessor’s

consent” (citing Rest. 2d Torts § 330)). Therefore, as the trial court held,

any duty of Richards to Gallagher with respect to the condition of the

sidewalk is governed by Section 342 of the Second Restatement of Torts,

which provides:

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          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.

Both parties agree that this case is governed by Section 342. Gallagher’s

Brief at 10-11; Richards’ Brief at 7-8.

      We have held that a possessor of land may be liable under Section 342

“only if all three criteria” under that section are met. Himes v. New Enter.

Stone & Lime Co., 582 A.2d 353, 356 (Pa. Super. 1990), appeal denied,

590 A.2d 758 (Pa. 1991); accord Long v. Manzo, 682 A.2d 370, 373 (Pa.

Super. 1996) (“[e]ach of those three elements must be satisfied before a

possessor of land will be subject to liability”), appeal denied, 693 A.2d 967

(Pa. 1997).    The trial court held that Gallagher may not recover under

Section 342 because she cannot satisfy the section’s third requirement —

that she did “not know or have reason to know of the condition and the risk

involved.”    With respect to this requirement, Comment l to Section 342

states:

          Dangers known to licensee. The licensee, who enters land
          with no more than bare permission, is entitled to nothing

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         more than knowledge of the conditions and dangers which
         he will encounter if he comes. If he is warned of the actual
         conditions, and the dangers involved, or if he discovers
         them for himself without such warning, and fully
         understands and appreciates the risk, he is in a position to
         make an intelligent choice as to whether the advantage to
         be gained is sufficient to justify him in incurring the risk by
         entering or remaining. Therefore, even though a
         dangerous condition is concealed and not obvious, and the
         possessor has given the licensee no warning, if the
         licensee is in fact fully aware of the condition and the risk,
         there is no liability to [the possessor].

      Here, the record viewed in Gallagher’s favor substantiates the trial

court’s determination that Gallagher knew about the pipe protruding from

the sidewalk in front of Richards’ house and fully understood and appreciated

the risk of injury presented by that pipe.        Gallagher had lived at her

residence for more than two years and walked on that sidewalk four to six

times each week. She had seen the pipe protruding from the sidewalk and

walked around it. She testified that she had believed the pipe was unsafe.

As the trial court recounted, Gallagher testified “that [Richards’] water pipe

was obvious because it was sticking up, and that she believed that the water

pipes were unsafe since the time that she moved in to her apartment.” Trial

Ct. Op. at 3. In view of this uncontradicted evidence, the trial court did not

err in holding that Gallagher could not recover under Section 342 of the

Second Restatement of Torts. See Himes, 582 A.2d at 356.

      Gallagher’s brief presents two responses. First, in what she frames as

her second issue, Gallagher says that “homeowners should not be insulated

from liability solely on the basis that an open and obvious defect, of which


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they are aware, is also known to a pedestrian.”                Gallagher’s Brief at 19

(capitalization omitted).        Though not clearly developed, this argument

appears to contend that Pennsylvania law should impose liability on a

possessor of land for injuries to a pedestrian licensee regardless of whether

the licensee knew of the dangerous condition causing her injury.                     Thus

stated,   Gallagher’s     argument      is     a   request   that   we   disregard    the

requirements of Section 342 of the Second Restatement when considering

Richards’ liability. But we are not free to do that.

       The relevant Restatement provision, in the form of its predecessor in

the First Restatement of Torts (1934), has been a part of Pennsylvania law

since the Supreme Court first applied it in 1936.                   See Di Marco v.

Pennsylvania R. Co., 183 A. 780, 782 (1936); see also Cutler v. Peck

Lumber Mfg. Co., 37 A.2d 739, 740-41 (Pa. 1944). The Supreme Court

adopted Section 342 of the Second Restatement in 1970.                   See Sharp v.

Luksa, 269 A.2d 659, 661 (Pa. 1970); see also Rossino, 718 A.2d at 757.

As an intermediate appellate court, this Court is “duty-bound to effectuate

[the Supreme] Court’s decisional law” and “lacks the authority to determine

that [the Supreme] Court’s decisions are no longer controlling.”               Walnut

Street Assocs. v. Brokerage Concepts, Inc., 20 A.3d 468, 480 (Pa.

2011). We therefore are bound by the requirements in Section 342.4

____________________________________________
4
 The case cited by Gallagher for a contrary result, Johnson v. Bruner, 61
Pa. 58 (Pa. 1869), is inapposite. That case dealt with the duty owed by an
employer to its employee, a minor, who fell through a trap door. The
(Footnote Continued Next Page)

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J-S87024-16

      Gallagher’s other argument is that application of Section 342(c)

presents a jury question, and that it therefore was error for the trial court to

decide this case on summary judgment.               Although “whether the licensee

knew or had reason to know of the condition [of the relevant property] and

its attendant risks[] is usually a question of fact for the jury[, . . . t]his

question may be decided by the court . . . if reasonable minds could not

differ.” Long, 682 A.2d at 373. Thus, we have not hesitated to affirm an

entry of summary judgment on this issue when the record discloses that the

licensee’s knowledge is not subject to dispute. See, e.g., Himes, 582 A.2d

at 356-57; see also Long, 682 A.2d at 374 (affirming compulsory nonsuit).

Here, as the trial court held, the undisputed evidence made clear that

Gallagher was aware of the hazardous condition posed by the pipe on

Richards’ sidewalk. The trial court therefore did not err in entering summary

judgment on this issue.

      In contesting this result, Gallagher identifies the specific questions that

she wishes to present to the jury as “whether the water pipe was sufficiently

obvious and open at the time Ms. Gallagher fell” and “[w]hether a

reasonable person in Ms. Gallagher’s position would have forgotten about

the pipe’s presence in the moments before falling.” Gallagher’s Brief at 4;




                       _______________________
(Footnote Continued)
decision had nothing to do with a homeowner’s duty to a mere licensee
permitted to traverse her sidewalk, and it therefore was not governed by the
rule now set forth in Section 342 to govern this situation.


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see id. at 11-18.     Gallagher’s argument betrays a misunderstanding of

Section 342.

      The premise behind Gallagher’s argument is that it is “within the realm

of possibility” that “she did not see or consciously appreciate the condition

and the risk it posed at the time she fell.” Gallagher’s Brief at 11 (emphasis

in original). Therefore, she claims, there should be a trial regarding whether

the dangerous condition of the sidewalk was “obvious” or “open” at the time

of her injury. But that is not what Section 342(c) requires. Rather, the only

question under that provision is whether the licensee “d[id] not know or

have reason to know of the condition and the risk involved.” See Rest. 2d

Torts § 342(c). As the Restatement points out, “If the licensees are adults,

the fact that the condition is obvious is usually sufficient to apprise them, as

fully as the possessor, of the full extent of the risk involved in it.” Rest. 2d

Torts § 342, Com. b. But the licensee’s knowledge of the condition might

just as well arise from notice given by the homeowner, from the licensee’s

own investigation, or from some other source. See id., Com. l. “Therefore,

even though a dangerous condition is concealed and not obvious, and the

possessor has given the licensee no warning, if the licensee is in fact fully

aware of the condition and the risk, there is no liability to [the possessor].”

Id. Here, Gallagher admitted that she knew of the hazard presented by the

pipe protruding from Richards’ sidewalk. Trial Ct. Op. at 2-3; N.T. Gallagher




                                     - 12 -
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Dep. at 38.      Therefore, no trial was needed to determine how “open” or

“obvious” that protrusion was.5

       Similarly, Gallagher argues at length that even though she knew of the

protruding pipe, she reasonably may “have forgotten about the pipe’s

presence     in the    moments before          falling.”   Gallagher’s Brief at 15

(capitalization omitted).       In support, Gallagher’s brief discusses cases in

which pedestrians were held not to be negligent merely because of such

lapses in memory.        See id. at 15-19 (discussing Weitz v. Baurkot, 406

A.2d 1138, 1139-40 (Pa. Super. 1979), and Vuynovich v. Midland

Borough, 25 Pa. D. & C.2d 509 (C.P. Beaver 1961)); see also id. at 20-21

(discussing Marks v. Redner’s Warehouse Mkts., 136 A.3d 984 (Pa.

Super. 2016) (contributory negligence decision applying Maryland law)).

But, once again, that is not a relevant question under this provision of the

Restatement.

       Section 342 sets forth a rule to determine whether a possessor of land

“owed a duty of care” to a licensee. Alexander, 61 A.3d at 221; see id. at

223. If the licensee knew or had reason to know of the dangerous condition

____________________________________________
5
   The main case on which Gallagher relies, Robinson v. City of
Philadelphia, 2012 WL 8678953, 2012 Pa. Commw. Unpub. LEXIS 417 (Pa.
Cmwlth. 2012), does not call for a different result. Unlike Gallagher, the
plaintiff in that case did not admit that she knew of the hazard over which
she tripped. The plaintiff agreed that the hazard appeared obvious when
viewed in photographs after the accident, but there was a factual dispute
regarding whether she should have seen the hazard before she fell. Id.,
2012 WL 8678953, at *4-*5, 2012 Pa. Commw. Unpub. LEXIS 417, at *12-
*16.


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of the property under Section 342(c), then the possessor of the property

owes the licensee no duty with respect to that condition.    See Cutler, 37

A.2d at 740-41. It therefore does not matter whether the licensee once

knew of the condition and then reasonably forgot at the moment she tripped,

or whether the licensee may have been subject to distractions or other

factors that made her tripping non-negligent.      Section 342(c) does not

inquire whether the licensee was negligent; it inquires whether she know of

the condition, and nothing more.     Accordingly, Gallagher’s discussion of

cases about whether a plaintiff’s contributory (or comparative) negligence

presented jury questions that were not amenable to summary judgment is

beside the point.

       Although she knew there was a pipe protruding from Richards’

sidewalk, Gallagher tripped on it and was injured. Richards is not liable to

Gallagher for those injuries because Richards owed no duty to Gallagher

under Section 342 of the Second Restatement of Torts.         There are no

material factual disputes presented by this question.    Accordingly, having

discerned no error of law or abuse of discretion, we affirm the trial court’s

grant of summary judgment. See Toro, 150 A.3d at 972.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2017




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