Premises Liability Government Immunity Actual/Constructive Notice Prior Visits
Anderson v. Ying et al, PICS Case No. 17-1070 (C.P. Philadelphia July 6, 2017) Shreeves-Johns, J. (13 pages).
Plaintiff failed to produce sufficient evidence that the City of Philadelphia was on constructive notice of a sidewalk defect through evidence that city employees had visited the area for purposes other than to inspect or clean the sidewalk. The court recommended affirmance of an order denying plaintiff's motion to set aside a nonsuit.
Plaintiff tripped and fell on what she described as a defective sidewalk on Jan. 1, 2014, and injured her elbow. She examined the location of her fall and reported seeing an uneven slab of concrete. Plaintiff filed suit against the owners of the property adjacent to the sidewalk and the City of Philadelphia. The matter proceeded to trial. At the close of plaintiff's case, the trial court granted the city's motion for nonsuit based on a lack of evidence regarding actual or constructive notice of the alleged defect. Ultimately, the jury found in favor of plaintiff and against the defendant homeowners, but the court molded the verdict to account for a finding that plaintiff was 46 percent negligent. Plaintiff filed a post-trial motion requesting, inter alia, removal of the compulsory nonsuit granted the city, thereby prompting the court's opinion. A municipality is only liable under certain exceptions to the rule of immunity for political subdivisions, the court explained. Under the "sidewalk" exception in 42 Pa.C.S. 8542, a municipality may be held liable for a dangerous condition if it had either actual or constructive notice of the dangerous condition. Plaintiff did not offer any proof that the city had actual notice of the defective sidewalk. Rather, she claimed the cityhad constructive notice based on unrelated visits to the property by city officials. The city's Licenses and Inspections (L & I) had inspected the interior of the subject property in 2011. Moreover, the city had cleaned or inspected the sidewalk five times from 2011 to the date of the accident due to a storm sewer near the sidewalk. According to plaintiff, this evidence was sufficient for a jury to conclude that L & I inspectors and storm sewer cleaners were close enough to the sidewalk defect that they should have seen and reported it. In certain cases, a city employee's prior visitation, inspection and maintenance of the location of a defective sidewalk can put that city on actual or constructive notice of the defect, the court observed, citing Ellis v. City of Pittsburgh, 703 A.2d 593 (Pa. Commw. 1997). However, the facts at bar did not fall within the pattern in Ellis. The sidewalk at issue was misleveled, but it was not in extreme disrepair, the court observed. Moreover, the city employees' contact with or approximation to the subject sidewalk was incidental and always for a purpose other than to inspect or clean the sidewalk. The city had no policy requiring its employees to report observed defects in sidewalks. The city employees' visits to the area were too tangential to serve as a reasonable basis for the jury to find that the city had constructive notice of the defect, the court reasoned. Since the jury could only reach constructive notice by conjecture, the court concluded that the city was immune from suit.