Opinion
No. 2394 C.D. 2011
02-07-2013
James Gould and Joanne Gould, his wife, Appellants v. Sharpsburg Borough
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
James Gould and Joanne Gould, his wife, appeal from the judgment entered on December 8, 2011, by the Court of Common Pleas of Allegheny County (trial court) in favor of Sharpsburg Borough (Borough). We reverse and remand for a new trial.
On October 24, 2008, Mr. Gould stepped into a hole in Kennedy Park in the Borough and fractured his left knee. Mr. Gould sued the Borough for causing his injuries; Mrs. Gould sued for loss of consortium. The trial court held a jury trial on September 20, 2011, and September 21, 2011.
Mrs. Gould testified that, on October 24, 2008, she drove her husband to the American Legion and parked next to Kennedy Park. (N.T., 9/20/11, at 111.) Mr. Gould, riding as a passenger, exited the car and immediately stepped into an unseen hole, fracturing his knee. (Id. at 115.) Two days later, Mrs. Gould returned and took pictures of the hole. (Id. at 118.) Mrs. Gould also informed the Borough of the danger and filed a police report. (Id. at 154.)
Ronald Borczyk, the Borough manager at the time of the accident, testified at the trial. Borczyk noted that he received a report about the accident and that the maintenance crew filled in the hole the next day. (Id. at 194, 196.) Borczyk recalled the Borough's policy of removing the white posts that border Kennedy Park if they deteriorated and became an eyesore. (Id. at 213.) Unofficial Borough policy mandated that the individual removing the post immediately fill it in. (Id. at 204.)
The Goulds presented a report compiled by Norman Peer, an investigator hired by the Borough's liability insurers, who gathered information about the accident. According to the report, Peer went to Kennedy Park in December 2008, and photographed the site. (N.T., 9/21/11, at 52.) When he visited the park, Peer did not know, with full certainty, the exact location where the injury occurred. (Id. at 66.) However, Peer located an area where grass did not grow and presumed it to be the site of a recently filled-in hole. (Id. at 59.) Peer's report concluded that the former hole had been caused by the removal of one of the posts. (Goulds' Ex. 12, ¶ 2.)
After the two-day jury trial, the trial court granted the Borough's motion for an involuntary non-suit because the Goulds failed to present any evidence of actual or constructive notice of the hole. The Goulds filed post-trial motions requesting removal of the non-suit and the grant of a new trial, which the trial court denied. The Goulds appealed to this court.
The Goulds argue that the trial court erred by granting an involuntary non-suit in favor of the Borough on the issue of notice. We agree.
A compulsory non-suit "may be entered only when the plaintiff cannot recover under any view of the evidence, with every doubt resolved against its entry and all inferences drawn most favorably to the plaintiff." Hightower-Warren v. Silk, 548 Pa. 459, 463, 698 A.2d 52, 54 (1997) (citation omitted). The Goulds posit that they presented enough evidence for the jury to conclude that the Borough had actual notice of the hole.
A local agency, such as the Borough, is immune from suit under section 8541 of the Judicial Code (Code), 42 Pa. C.S. §8541, except where the General Assembly has specifically waived immunity. Section 8542(b)(3) of the Code, 42 Pa. C.S §8542(b)(3), waives immunity for damages arising from:
[t]he care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency.Section 342 of the Restatement (Second) of Torts (1965) provides in relevant part:
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 . . . .(Emphasis added). Thus, a plaintiff must establish that the local agency "had actual or constructive notice of the condition at a time sufficiently prior to the accident to have taken measures to prevent the injury." Ellis v. City of Pittsburgh, 703 A.2d 593, 594 (Pa. Cmwlth. 1997) (en banc) (finding that the city had notice of the dangerous condition on a flight of steps that the city frequently cleaned and shoveled). Actual notice is apparent if a land possessor or her agent creates the dangerous condition. Porro v. Century III Associates, 846 A.2d 1282, 1285 (Pa. Super. 2004) (citation omitted).
Here, in order to prove actual notice, the Goulds needed to present evidence allowing the jury to reasonably draw two conclusions: 1) that the hole was the former location of a post, and 2) that a Borough employee removed a post and created the hole.
First, the Goulds assert that the removal of a post created the hole. In support, the Goulds presented evidence that: 1) at one time, regularly spaced wooden posts lined Kennedy Park, only some of which remain, and 2) Mr. Gould fell into a square hole, the same size and shape as the remaining posts, next to the road. Taking this evidence in the light most favorable to the Goulds, a jury could reasonably conclude that the hole was formerly the location of a post.
Second, the Goulds argue that a Borough employee removed the post. The Goulds presented evidence that the Borough had a policy under which it would occasionally remove deteriorated posts. (N.T., 9/20/11, at 204.) The poles are anchored in the ground and would take a significant effort to remove, perhaps even requiring a backhoe and a chain. (Id. at 205.) Moreover, the Borough never received reports that a post had been removed without the Borough's permission. (Id. at 220.) Drawing all reasonable inferences in the Goulds' favor, a jury could consider this evidence and reasonably conclude that the only possible explanation for the removal of a post is that a Borough employee removed it in accordance with Borough policy.
Thus, we disagree with the trial court that the Goulds did not present any evidence of notice. The trial court fixated on the evidence that the Goulds did not present, such as detailed measurements and more illustrative photographs. (Trial Ct. Op. at 6.) However, considering the evidence that the Goulds did present and drawing all reasonable inferences in their favor, the jurors could have reached a conclusion in favor of the Goulds on the issue of notice. As such, the trial court erred in granting the involuntary non-suit.
Accordingly, we reverse and remand for a new trial.
The Goulds also argue that the trial court erred by: 1) not drawing an adverse inference in their favor, and 2) not entering a directed verdict in their favor. Because the involuntary non-suit issue is dispositive, we need not address these arguments. --------
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge Judge Simpson dissents.
ORDER
AND NOW, this 7th day of February, 2013, we reverse the judgment entered on December 8, 2011, by the Court of Common Pleas of Allegheny County and remand for a new trial.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge