Opinion
No. 1868 C.D. 2011
04-26-2012
Janice Dreher and Thomas Takach, Husband and Wife, Appellants v. Williamsport Parking Authority v. River Valley Transit
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Janice Dreher and Thomas Takach, Husband and Wife, appeal from the September 13, 2011 Order of the Court of Common Pleas of Lycoming County (trial court) granting the "Motion for Summary Judgment of Additional Defendant River Valley Transit" (Motion for Summary Judgment) filed by Additional Defendant River Valley Transit (River Valley) and joined in by the Williamsport Parking Authority (Parking Authority). Dreher and Takach argue that: (1) the trial court erred in finding that there was no actual or constructive notice of a dangerous condition of the Parking Authority's sidewalk or evidence of how long the defect in the sidewalk existed; and (2) the trial court erred in relying upon its decision in Preston v. City of Williamsport, (C.C.P. Lycoming County, No. 09-02785, filed May 24, 2011), which is factually distinguishable. We affirm.
The Parking Authority's brief joins in, and incorporates by reference, the arguments of River Valley in this appeal.
On March 28, 2008, Dreher and Takach parked in the Parking Authority's parking garage located at 115 W. Third Street in the City of Williamsport, Lycoming County, Pennsylvania (City). As Dreher was walking on the sidewalk in front of 115 W. Third Street, her foot allegedly got caught in a crevice or depression in the sidewalk. This condition of the sidewalk allegedly caused Dreher to fall and sustain injuries. Dreher was generally unfamiliar with the parking garage and the area of Williamsport where she fell. (Trial Ct. Op. at 1.)
Dreher and Takach filed a complaint with the trial court on May 18, 2010, setting forth a claim of negligence against the Parking Authority alleging that it knew or should have known of a defect in the sidewalk outside its parking garage, and that it had breached its duty in failing to keep the premises safe for use and to warn Dreher of any potential dangerous condition. (Complaint, R.R. at 6a-12a.) While the Parking Authority owns the parking garage at 115 W. Third Street, it has contracted with River Valley to perform day-to-day maintenance of the garage. (Trial Ct. Op. at 1.) The maintenance contract includes sweeping and shoveling the sidewalk in front of 115 W. Third Street. (Trial Ct. Op. at 1.) On June 9, 2010, the Parking Authority filed a Joinder Complaint against Additional Defendant River Valley. (Joinder Complaint, R.R. at 37a-40a.) Discovery ensued and the parties and witnesses were deposed. On August 5, 2011, River Valley filed its Motion for Summary Judgment. (Motion for Summary Judgment, R.R. at 74a-82a.) The Parking Authority joined in River Valley's Motion for Summary Judgment. (Notice of Permissive Joinder, Official Docket Entries, R.R. at 2a.) River Valley alleged in the Motion for Summary Judgment that it was immune from suit pursuant to what is commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa. C.S. §§ 8541 - 8564, because Dreher and Takach produced no evidence that the Parking Authority or River Valley had either actual or constructive notice of "'the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.'" (Motion for Summary Judgment, R.R. at 79a-80a (quoting 42 Pa. C.S. § 8542(b)(7)).) Dreher and Takach filed a response to the Motion for Summary Judgment on September 6, 2011. (Plaintiffs' Response to Defendant's Motion for Summary Judgment, R.R. at 126a-35a.)
Dreher originally filed a praecipe to issue a writ of summons against the Parking Authority on March 23, 2010. (Praecipe for Writ of Summons in Civil Action, R.R. at 4a.) On April 27, 2010, the Parking Authority filed a rule on Dreher and Takach to file a complaint, which complaint was then filed on May 18, 2010. (Rule to Plaintiff to File Complaint Issued, Official Docket Entries, R.R. at 1a; Complaint, R.R. at 6a-12a.) The Parking Authority filed an answer and new matter to Dreher's and Takach's complaint on or about June 8, 2010. (Answer and New Matter, R.R. at 13a-31a.) The Parking Authority alleged in its new matter, inter alia, that Dreher's and Takach's claims may be barred or limited by governmental immunity as set forth in what is commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa. C.S. §§ 8541 - 8564. (New Matter, R.R. at 16a.) Dreher and Takach filed a response to the Parking Authority's new matter on June 17, 2010. (Plaintiffs' Response to Defendant's New Matter, R.R. at 32a-35a.)
River Valley filed an answer, new matter, and cross-claim on July 30, 2010. (Additional Defendant River Valley Transit's Answer to Defendant Williamsport Parking Authority's Joinder Complaint with New Matter and Cross Claim pursuant to Pa. R.C. P. No. 2252(d), R.R. at 64a-70a.) In its new matter, River Valley alleged, inter alia, that the Parking Authority's claims against it were barred by the governmental immunity as set forth in the Tort Claims Act. (River Valley New Matter, R.R. at 66a.)
Pursuant to Pennsylvania Rule of Civil Procedure 1035.2, a party may move for summary judgment after the relevant pleadings are closed "whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report" or if, "after the completion of discovery," "an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury." Pa. R.C.P. No. 1035.2. For purposes of summary judgment, the record includes any pleadings, interrogatory answers, depositions, admissions, and affidavits. Pa. R.C.P. No. 1035.1.
Upon consideration of the Motion for Summary Judgment and the response thereto, the trial court determined that Dreher and Takach had "produced photographs taken several days after the accident which show the depression in a sufficient manner as to withstand summary judgment on the question of negligence." (Trial Ct. Op. at 2.) Thus, the issue to be decided by the trial court for summary judgment purposes was whether River Valley "had either actual or constructive notice of a dangerous condition on the sidewalk in front of the 115 W. Third Street garage at a time sufficient to have taken measures to protect the public against the dangerous condition." (Trial Ct. Op. at 2.) The trial court determined that constructive notice is considered "to be notice that [River Valley] could reasonably be charged with under the circumstances." (Trial Ct. Op. at 2.) Based on the evidence presented by the parties, in support of and in opposition to the Motion for Summary Judgment, the trial court found as follows:
[T]his Court finds no evidence whatsoever as to when the alleged dangerous condition arose and whether Defendants had a reasonable period of time to make repairs to protect against the dangerous
condition. This record does not contain circumstantial evidence that would establish how long the alleged defect was in existence and whether it could have been remedied. Summary judgment is appropriate where the record is clear that a missing element of the negligence claim is not available. Here, the missing element is when the condition arose, and without that element the evidence is not sufficient to present the jury with an issue of notice.(Trial Ct. Op. at 4.) The trial court further relied upon, as persuasive, Preston, in which the trial court found that a pothole in a busy street where city employees travelled daily was not sufficient circumstantial evidence to find that the City had sufficient time to locate and remedy the problem. Preston, slip op. at 2. Accordingly, the trial court granted the Motion for Summary Judgment. Dreher and Takach now appeal to this Court.
An appellate court may reverse the grant of a motion for summary judgment if there has been an error of law or an abuse of discretion. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 585, 812 A.2d 1218, 1221 (2002). In reviewing the grant of summary judgment, this Court's scope of review is plenary. Scalice v. Pennsylvania Employees Benefit Trust Fund, 584 Pa. 161, 171-72, 883 A.2d 429, 435 (2005). In considering the merits of a motion for summary judgment, a court views 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. Jones v. Southeastern Pennsylvania Transportation Authority, 565 Pa. 211, 216, 772 A.2d 435, 438 (2001). Finally, this Court may grant summary judgment only where the right to such a judgment is clear and free from doubt. Marks v. Tasman, 527 Pa. 132, 134-35, 589 A.2d 205, 206 (1991).
"Sections 8541-8564 of the [Tort Claims Act] provide that liability may be imposed against a local agency if two conditions are satisfied and if the injury occurs as a result of one of eight enumerated acts." Cohen v. City of Philadelphia, 847 A.2d 778, 780 (Pa. Cmwlth. 2004). "The threshold requirements are that[:] (1) the damages would be otherwise recoverable under common law or by statute creating a cause of action against one not having an immunity defense[;] and (2)[] the injury must be caused by the negligent act(s) of the local agency or its employees." Id. Pursuant to Section 8542(b)(7) of the Tort Claims Act, liability may be imposed on a local agency if a dangerous condition of a sidewalk results in injury to an individual. 42 Pa. C.S. § 8542(b)(7). Section 8542(b)(7) provides as follows:
Sidewalks. --A dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. When a local agency is liable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of other persons, the local agency shall be secondarily liable only and such other persons shall be primarily liable.Id. The plaintiff bears the burden of demonstrating that all conditions for imposing liability upon a local agency have been met. Sweeney v. Merrymead Farm, Inc., 799 A.2d 972, 977 (Pa. Cmwlth. 2002).
The Superior Court has explained constructive notice as follows:
What will amount to constructive notice of a defect or dangerous condition existing upon a defendant's premises necessarily varies under the conditions of each case. Among the factors affecting the question are the number of persons using the premises, the frequency of such use, the nature of the defect, its location on the premises, its probable cause, and the opportunity which defendant, as a reasonably prudent person, had to remedy it. [] It is not always necessary for plaintiff to produce positive testimony as to how long the defect existed. . . . [D]irect proof of defendant's knowledge is not essential to the imposition of liability where the condition was a likely and foreseeable result of the manner in which the premises were being maintained and used.Stais v. Sears, Roebuck & Co., 102 A.2d 204, 206 (Pa. Super. 1954) (citations omitted). Circumstantial evidence has been defined by this Court as:
"[E]vidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred," W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 39, at 242 (5th ed. 1984)[,] in contrast to direct evidence where there is direct eyewitness testimony of the ultimate fact to be determined. Monaci v. State Horse Racing Commission, 717 A.2d 612[, 618] (Pa. Cmwlth. 1998). The inference from which the conclusion is derived "is simply a clear, logical, reasonable and natural conclusion which the trier of fact may embrace or reject based on the evidence in the case." Bixler v. Hoverter, [] 491 A.2d 958, 959 ([Pa. Cmwlth.] 1985); see also Commonwealth v. Shaffer, 447 Pa. 91, [105,] 288 A.2d 727[, 735] (1972) ("an inference is no more tha[n] a logical tool enabling the trier of fact to proceed from one fact to another.") The facts presented are the foundation of any inference and will determine whether that inference is reasonable. Ellis v. City of Pittsburgh, 703 A.2d 593[, 595] (Pa. Cmwlth. 1997). A party is not entitled to an inference of fact which amounts to nothing more than a guess or conjecture. Flaherty v. Pennsylvania Railroad Co., 426 Pa. 83, [85,] 231 A.2d 179[, 180] (1967). When properly proved, circumstantial evidence is entitled to as much weight as direct evidence. Commonwealth v. Chambers, 528 Pa. 558, [569,] 599 A.2d 630[, 635] (1991).A.B., A minor, by her parents Jason and Cindy Bennett v. Slippery Rock Area School District, 906 A.2d 674, 677 n.8 (Pa. Cmwlth 2006).
In support of their appeal Dreher and Takach first argue that, contrary to the trial court's finding that there was no circumstantial evidence of actual or constructive notice of a defect in the sidewalk, they presented circumstantial evidence and the inference reasonably deductible therefrom created genuine issues of material fact. This circumstantial evidence is: (1) the testimony of Gary Gardner, a Parking Authority employee, who is responsible for general maintenance of the parking garage, including the sidewalk in front of the garage, (Gardner Dep. at 6-12, R.R. at 245a-51a); (2) the photographs submitted by Dreher and Takach, demonstrating a progressive deterioration of the sidewalk rather than a new condition, (R.R. at 285a-88a); (3) the testimony of Garry Phillips, a River Valley employee, who has the responsibility for inspection of the premises where Dreher fell, (Phillips Dep. at 12-22, R.R. at 292a-95a); and (4) the obligation of two River Valley employees, Todd Wright and William Nichols, whose offices are located across the street from the parking garage, to observe and correct any defects in the sidewalk by the exercise of reasonable supervision. Dreher and Takach argue that this case is similar to the facts in Ellis, where a pedestrian (Ellis) fell on a set of steps owned by the City of Pittsburgh (Pittsburgh). Dreher and Takach point out that the trial court in Ellis concluded that since Pittsburgh sent cleaning crews to the site at regular intervals and made repairs over 19 months prior to the accident, Pittsburgh had actual or constructive notice of the dangerous condition well before Ellis' accident.
Secondly, Dreher and Takach argue that the trial court erred in finding that its decision in Preston was persuasive. Preston involved the streets exception found in Section 8542(b)(6) of the Tort Claims Act, 42 Pa. C.S. § 8542(b)(6), not the sidewalk exception, and the injury actually occurred on the street. The trial court found that, while the pothole was in the middle of a busy street, there was absolutely no evidence how long the pothole had been there. The trial court accepted the City's evidence that the pothole formed at the beginning of the freeze/thaw cycle, which created potholes in a very rapid fashion. Dreher and Takach argue that, in the instant case, there was no evidence to suggest that the sidewalk defect was caused by freeze and thaw.
A review of the deposition testimony of the witnesses submitted in support of and in opposition to the Motion for Summary Judgment shows that the trial court properly determined that Dreher and Takach did not prove that River Valley or the Parking Authority had actual or constructive notice of the defect in the sidewalk. The employees of River Valley and the Parking Authority consistently testified that they were neither aware of the defect in the sidewalk prior to Dreher's fall nor did they receive any complaints prior to the fall regarding the sidewalk at issue herein. Wright testified that he walked through the area weekly where Dreher fell before her accident and did not notice any defects or problems with the sidewalk. (Wright Dep. at 11, R.R. at 183a.) Wright testified further that he did not receive any complaints about the condition of the sidewalk prior to Dreher's fall. (Wright Dep. at 11, 21, R.R. at 183a, 193a.) Nichols also testified that he was not aware of any complaints about the condition of the sidewalk prior to Dreher's fall. (Nichols Dep. at 13, R.R. at 111a.) Gardner testified that he observed that the sidewalk shifts around in the wintertime when it is frozen, meaning that the sidewalk frosts and heaves. (Gardner Dep. at 10, R.R. at 116a.) Gardner testified further that the pavers in the sidewalk, which are the smaller pieces, move up and down more than the big pieces of the sidewalk when it frosts and heaves. (Gardner Dep. at 11, R.R. at 133a.) Based on the foregoing, we conclude that the trial court correctly determined that there is no evidence as to when the alleged dangerous condition arose and whether River Valley or the Parking Authority had a reasonable period of time to make repairs to protect against the dangerous condition.
Dreher and Takach also argue that photographs of the defect in the sidewalk provide circumstantial evidence that River Valley and the Parking Authority had notice of the defect because the photographs demonstrate a progressive deterioration of the sidewalk rather than a new condition. (R.R. at 285a-86a.) Notwithstanding Dreher and Takach's characterization of what the photographs demonstrate, there is still no evidence proving that River Valley or the Parking Authority had actual or constructive notice of the defect in the sidewalk that caused Dreher to fall and injure herself.
In addition, there is no evidence to support Dreher's and Takach's contention that Nichols and Wright were obligated to correct any defects in the sidewalk by the exercise of reasonable supervision because their offices are located across the street from where Dreher fell. In support of this argument, Dreher and Takach cite to Murray v. Siegal, 413 Pa. 23, 28, 195 A.2d 790, 793 (1963), which states that "[a] municipality is not required to seek out defects in sidewalks, but only to be vigilant to observe and correct them by the exercise of reasonable supervision[.]" As stated above, Wright testified that he walked through the area weekly where Dreher fell before her accident and did not notice any defects or problems with the sidewalk. (Wright Dep. at 11, R.R. at 183a.) Nichols was not questioned as to whether he walked through the area and, if so, when or how often. (Nichols Dep. at 4-13, 163a-72a.) Therefore, there is no evidence that Wright or Nichols were not vigilant or failed to observe and correct the defect in the sidewalk by reasonable supervision.
We further disagree with Dreher and Takach that this case is similar to Ellis. In Ellis, Ellis sustained injuries when he fell on a set of steps on Pittsburgh property. Ellis, 703 A.2d at 593. Ellis filed a complaint against Pittsburgh and, after a non-jury trial, the trial court found in favor of Ellis. Id. Pittsburgh filed a post-trial motion, which the trial court denied, after determining that "[Pittsburgh] had timely actual or constructive notice of the dangerous condition of the steps based on the testimony and evidence presented at the non-jury trial." Id. at 594. On appeal, this Court affirmed, stating:
The evidence presented in the instant case permits the fact finder to draw the reasonable inference that [Pittsburgh] had actual or constructive notice of the hazardous condition of the steps at a time sufficiently prior to Ellis' fall to have taken measures to prevent the injuries sustained. The trial court found that the steps in question had been repaired on January 13, 1987, and that no other repairs were made to the steps until two months after Ellis' accident. Ellis v. City of Pittsburgh, No. GD 90-13499, slip op. at 2 (C.P. Allegheny County Aug 13, 1996). Moreover, when the steps were repaired, it was necessary to replace eight missing railings and two completely missing steps, and to repair five other steps. Id. The court found that this evidenced a progressive deterioration of the steps over a nineteen-month period from the last repairs to Ellis' accident. Id. at 5. In addition, the testimony of the [Pittsburgh]'s assistant director of public works highlighted that various [Pittsburgh] employees would clean or shovel these specific steps on four or five occasions a year. (Notes of Testimony (N.T.), p. 48). These employees were charged with the maintenance of [Pittsburgh] steps and were under an obligation to report any defects of the steps they discovered during their cleaning or shoveling. (N.T., pp. 48-49). This testimony, in conjunction with the testimony and evidence concerning the progressive deterioration of the steps, led the trial court to draw the reasonable inference that [Pittsburgh] had actual or constructive notice of the dangerous condition of the steps at a point well before Ellis' accident.Id. at 594-95 (footnote omitted).
. . . .
At the foundation of this inference was the evidence that the steps in question were in an extreme state of disrepair, the testimony that these steps were examined on four to five occasions a year, and undoubtedly, the trial court's own life experience that steps of this nature do not degrade as rapidly as argued by [Pittsburgh].
We conclude that Ellis is distinguishable from the present case in that the progressive deterioration of the steps in Ellis provided circumstantial evidence that over the 19 month period prior to the Ellis' injury, the steps slowly deteriorated, with two steps falling and becoming completely missing due to disrepair, and Pittsburgh's acknowledgment that it cleaned those very two steps. Here, there was evidence of periodic cleaning, sweeping, and shoveling of the subject sidewalk as needed; however, Gardner, the employee charged with maintaining the sidewalk at issue here, did not testify that he observed the defect or that he noticed that the sidewalk deteriorated or fell into disrepair over a period of time prior to the date Dreher fell. Thus, unlike Ellis, there are no facts in evidence that, at the time Dreher fell, the sidewalk was in a deteriorated condition so that an inference could be drawn from those facts that the sidewalk was deteriorating for a sufficient period of time prior to the fall to permit River Valley or the Parking Authority to take measures to repair it. Accordingly, without more, we hold that the trial court did not err in finding that there was no evidence that would establish: (1) that River Valley or the Parking Authority had actual or constructive notice of the condition of the sidewalk; (2) how long the alleged defect was in existence; and (3) whether it could have been remedied in a reasonable period of time.
(Gardner Dep. at 6-8, 12-13, R.R. at 245a-47a, 251a-52a.) --------
We also discern no error due to the trial court's reliance on Preston. Although Preston involved the streets exception to governmental immunity as set forth in Section 8542(b)(6) of the Tort Claims Act, the reasoning therein found persuasive by the trial court pertained to the issue of notice and the trial court's recognition that, under Section 8542(b)(6) of the Tort Claims Act, notice must be "'at a sufficient time prior to the event.'" Preston, slip op. at 2 (quoting 42 Pa. C.S. § 8542(b)(6)). This same requirement is found in the text of the sidewalk exception set forth in Section 8542(b)(7) of the Tort Claims Act, which states that "claimant to recover must establish that . . . the local agency had . . . notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition." 42 Pa. C.S. § 8542(b)(7) (emphasis added).
Accordingly, the trial court's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, April 26, 2012, the Order of the Court of Common Pleas of Lycoming County entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge