Can a Plaintiff Safely Walk and Chew Gum at the Same Time in Pennsylvania?

By Matthew J. Noble, Esq. and David Salazar, Esq.*

We have all heard the expression, “He can’t walk and chew gum at the same time.” City dwellers not only have to be careful walking across the street, but they must also mind where they step on the sidewalk. Generally, the law in Pennsylvania is that a property owner’s duty is merely to maintain the pavement of their property in a condition of reasonable safety, not to ensure the safety of pedestrians traversing it against any and all accidents. Harrison v. Pittsburgh, 44 A.2d 273, 274 (Pa. 1945).

In several cases, the Pennsylvania Supreme Court has found certain elevations to be de minimis as a matter of law. For example, in McGlinn v. Philadelphia, 186 A. 747 (Pa. 1936), no liability was found on an inch and one-half difference between the levels of two abutting curbstones. In Newell v. Pittsburgh, 123 A. 768 (Pa. 1924) an inch and one-half difference between adjoining ends of flagstones at a street crossing was found trivial. No liability was found in Foster v. West View Borough, 195 A. 82 (Pa. 1937), when an uneven step between a curb and a sidewalk was measured two to four inches lower than sidewalk level. Finally, in Magennis et vir. v. Pittsburgh, 42 A.2d 449 (Pa. 1946), a hole one and seven-eighth inches below the level of pavement was deemed de minimis.

Lately, when evaluating a plaintiff’s trip-and-fall claim, courts have looked to factors in addition to the size of the defect in order to determine whether it is “trivial.” Courts have examined the size of the defect, how long it has been in existence, whether there was prior knowledge of the defect before the accident and whether the plaintiff saw it immediately before the fall. Two recent cases have left the analysis of whether a defect is “trivial” to the jury.

In Mull v. Ickes, 944 A.2d 1137 (Pa. Super. 2010), with the sidewalk at the defendant’s business still partially covered in fresh snow, the plaintiff fell when she stepped on an uneven portion of the sidewalk with a gap between the concrete slabs. The alleged defect was a gap measuring more than two inches in width that created a height differentiation of an inch and one-half in depth.

A motion for summary judgment was filed, in which it was argued that the sidewalk defect was “trivial.” The Court of Common Pleas of Somerset County found in favor of the defendant. On appeal, the Superior Court reversed and remanded the case.

The lower court’s opinion reveals that the plaintiff had lived across the street from the defect for seven years and that the plaintiff periodically visited the defendant’s property during the year preceding the incident. The lower court did not determine whether the plaintiff had seen the defect during any of her prior visits. Neither had the court inquired into how long the defect had been in existence.

Consistent with the Pennsylvania Supreme Court precedent cited herein, the Superior Court noted that property owners are not responsible for trivial defects that exist in a sidewalk. This concept had to be reconciled with the notion that there is no precise or mathematical rule defining what constitutes a trivial defect. The court noted that when a defect is not so obviously trivial as to be trivial as a matter of law, the question of liability must be submitted to a jury. In reaching its decision, the court had looked to the measurements of the defect in question, noted that it was directly in the plaintiff’s path and acknowledged that part of the sidewalk was covered in snow—although there was no snow on the defect itself. It also indicated that, in arriving at its decision, the lower court had improperly considered the plaintiff’s prior knowledge of the sidewalk as part of its triviality analysis. It stated that the plaintiff’s prior knowledge raised an issue of comparative negligence, which was for a jury to decide.

In Hall v. Hess Corp., 2013 U.S. Dist. LEXIS 105710 (E.D. Pa. July 29, 2013), the plaintiff tripped and fell when her right foot hit an elevated part of the ground at the defendant’s gas station. The defendant filed a motion for summary judgment, arguing that the defect measured no more than one inch in depth and, therefore, was trivial. The district court denied the motion.

The defendant had argued that the defect was trivial and no actionable negligence followed because the defect on which the plaintiff tripped was only five-eighths of an inch deep and no more than one inch deep throughout. The plaintiff attempted to convince the court that factors in addition to the depth of the defect should be considered in determining whether the defect was “obviously trivial.” She noted that the defect was sixteen inches long and four inches wide and as well as contained debris and gravel. She pointed out that the defect was also the same color as the pavement surrounding it. She stated that the defect was in an area of heavy foot and car traffic, requiring business invitees to look for oncoming motor vehicles while traversing the area. The plaintiff noted that she had stepped on a law point in the defect and tripped when her foot struck a more elevated part. It was not established how long the defect was in existence prior to the incident.

The court found that, under the above facts, and looking at the evidence in a light most favorable to the plaintiff, it was unable to conclude that the defect was so “obviously trivial” that it could grant a motion for summary judgment. It decided that, considering all the circumstances surrounding the defect, the question as to whether the defect was trivial was best left for the jury.

In sum, courts will consider more than just a simple measurement of a defect in their evaluation of whether a defect is “trivial” or not. If the defect is not “obviously” trivial, its gravity will be an issue of fact to be determined by the jury in light of the circumstances of the particular case.

*Matt is a shareholder in our Philadelphia, Pennsylvania, office who can be reached at 215.575.2744 or mjnoble@mdwcg.com. David is an associate in our Philadelphia office who can be reached at 215.575.2696 or ddsalazar@mdwcg.com.

Defense Digest, Vol. 19, No. 4, December 2013

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.