PATLA Premises Liability

April 13, 2007Philadelphia Lawyer Philadelphia Lawyer - -

Joel D. FeldmanJoel D. Feldman

Anapol, Schwartz, Weiss, Anapol, Schwartz, Weiss, Cohan, Cohan,

Feldman & Smalley, P.C.Feldman & Smalley, P.C.

1900 Delancey Place1900 Delancey Place

Philadelphia, PA 19103Philadelphia, PA 19103

(215) 735-3716(215) 735-3716

jfeldmanjfeldman@anapolschwartz.com@anapolschwartz.com

Types of Premises Accident Cases

Slips, Trips, Falls and ElevatorsSlips, Trips, Falls and Elevators   Recreation CasesRecreation Cases   Security IssuesSecurity Issues   Liquor Liability/Dram ShopLiquor Liability/Dram Shop   Work Place SafetyWork Place Safety

Investigation

Plaintiff's interviewPlaintiff's interview Preservation of evidence Preservation of evidence SurveillanceSurveillance On-site inspectionOn-site inspection ExpertExpert

Potential Defendants

Property owner Property owner  Facilities managerFacilities manager Independent contractorIndependent contractor/service /service

contractorcontractor Manufacturer and installerManufacturer and installer

elevator caseselevator cases General and sub-contractorsGeneral and sub-contractors

work place safety caseswork place safety cases

Depositions

Corporate designeeCorporate designee

Videotape deposition of Videotape deposition of defendantsdefendants

Law and Practice Pointers   Outdoor CasesOutdoor Cases

snow and icesnow and ice defective walking surfacesdefective walking surfaces miscellaneousmiscellaneous

Indoor CasesIndoor Cases

   Governmental EntitiesGovernmental Entities

Plaintiff's "Burden"

Beyond Breach and CausationBeyond Breach and Causation Plaintiff's Description of ConditionPlaintiff's Description of Condition NoticeNotice Mechanism of FallMechanism of Fall Is Injury Medically Consistent?Is Injury Medically Consistent? Plaintiff's ConductPlaintiff's Conduct Consistency of "Factual Scenarios"Consistency of "Factual Scenarios"

Status of Injured Person TrespasserTrespasser LicenseeLicensee Invitee - Business or SocialInvitee - Business or Social

Licensee

Does possessor know or have reason to Does possessor know or have reason to know of condition? know of condition?

Does condition involve an unreasonable Does condition involve an unreasonable risk of harm to those who will not risk of harm to those who will not discover condition?discover condition?

Fails to exercise reasonable care to cure Fails to exercise reasonable care to cure or warnor warn

Restatement (Second) of Torts §342Restatement (Second) of Torts §342

Ziack v. Inez Conocchia, Court of Common Pleas of Allegheny County, July 2006

Plaintiff admitted knew of change in Plaintiff admitted knew of change in elevationelevation

Plaintiff saw change in elevation before Plaintiff saw change in elevation before stepped over it stepped over it

Appreciation of what?Appreciation of what? Defect or seriousness of potential Defect or seriousness of potential

injury?injury? Was status of plaintiff really Was status of plaintiff really

determinative?determinative?

Snow and Ice Cases

Hills and Ridges ApplicableHills and Ridges Applicable Hills and Ridges Not ApplicableHills and Ridges Not Applicable

Hills and Ridges Doctrine Snow/Ice accumulated in ridges or Snow/Ice accumulated in ridges or

elevationselevations Size and character to unreasonably Size and character to unreasonably

obstruct travel and pose dangerobstruct travel and pose danger Actual or constructive noticeActual or constructive notice CausationCausation

What are Generally Slippery Conditions? Surrounding areas also icy?Surrounding areas also icy? Other sidewalks, parking lots free Other sidewalks, parking lots free

of ice and snowof ice and snow Roads and driving conditionsRoads and driving conditions Isolated patches Isolated patches

Rozelle v. Becker Associates, Court of Common Pleas

Columbia Cnty, June 2005

How to establish generally slippery How to establish generally slippery conditions  conditions  

Presence of defendant's snow Presence of defendant's snow crews working at time of accident crews working at time of accident (Restatement (Second) of Torts (Restatement (Second) of Torts §323§323

Herbst v. Inven Associates, Court of Common Pleas of Dauphin County, 1998

Where did the sheet of ice come Where did the sheet of ice come from? from? 

Overnight sudden formation or Overnight sudden formation or continual conditioncontinual condition

Generally slippery condition is fact Generally slippery condition is fact issueissue

Oliveri v. Kavanagh, Court of Common Pleas of Northampton County, 2005

Plaintiff's testimony - snow storm Plaintiff's testimony - snow storm that day, no snow visible or any that day, no snow visible or any accumulation of snow and ice on accumulation of snow and ice on sidewalk where fell sidewalk where fell 

Black iceBlack ice

Hills and Ridges

What's a plaintiff to say?What's a plaintiff to say? Hills and ridgesHills and ridges Ridges and elevationsRidges and elevations Peaks and valleysPeaks and valleys Humps and hillocksHumps and hillocks Size and characterSize and character

What worksWhat works What doesn'tWhat doesn't

Isolated Patches of Ice

Once establish isolated patch of Once establish isolated patch of ice - are you there? ice - are you there? 

Peachey v. WalmartPeachey v. Walmart, Court of , Court of Common Please of Cumberland Common Please of Cumberland County, 2005 County, 2005 

Where did the ice come from? Where did the ice come from?  Plaintiff's burdenPlaintiff's burden

Restatement (Second) of Torts §323 Landowner undertakes to clear away ice Landowner undertakes to clear away ice

and snow and snow  Ferencz v. MilieFerencz v. Milie, (Pa. 1987) , (Pa. 1987)  Snow plowed, refroze, causing plaintiff's fall Snow plowed, refroze, causing plaintiff's fall  Harvey v. Rouse ChamberlainHarvey v. Rouse Chamberlain, (Pa. Super. , (Pa. Super.

2006)2006) Defendants plowed the road and Defendants plowed the road and

subsequent thereto black ice formed subsequent thereto black ice formed  Were conditions the result of an entirely Were conditions the result of an entirely

natural accumulation?natural accumulation?

Ice and Snow ~ Practice Pointers

  Plaintiff should not admit generally Plaintiff should not admit generally slippery conditions existedslippery conditions existed

Plaintiff prepared to establish Plaintiff prepared to establish isolated patch of iceisolated patch of ice

Source of ice, i.e., from natural or Source of ice, i.e., from natural or artificial condition artificial condition 

§323 Restatement (Second) of Torts §323 Restatement (Second) of Torts 

Natural Accumulation v. Man-Made Condition

Topography, depressions, gutters Topography, depressions, gutters and and

Downspouts and outdoor Downspouts and outdoor structuresstructures

Non-Ice Slips, Trips, &

Falls

Steps and Ramps

Irregular risers or treads Irregular risers or treads  Unexpected single stepUnexpected single step

Commercial Properties

Source - defendant or third party?Source - defendant or third party?

Conditions Created by Defendant - Notice is Presumed

Faulty freezersFaulty freezers Vegetable misters Vegetable misters  Leaking roof Leaking roof  Poor cleanupPoor cleanup

Conditions not Created by Defendant

Source of foreign substance - Source of foreign substance - unknown?unknown?

How does one prove notice?How does one prove notice?

Time

Shopping cartsShopping carts Footprints Footprints  Drying around edges Drying around edges  Plaintiff's experience with mopped Plaintiff's experience with mopped

floors - drying ratesfloors - drying rates

Campizi v. Acme Markets (Pa. Super. 2006)

Blind Acme employee's caneBlind Acme employee's cane Rounding corner of parallel aisles  Rounding corner of parallel aisles   Duty to warn invitees of risk posed Duty to warn invitees of risk posed

by disabled employee with caneby disabled employee with cane

Restatement (Second) of Torts §343A

Known and Obvious Dangers Known and Obvious Dangers  Plaintiff's Duty v. Defendant's Plaintiff's Duty v. Defendant's

Duty Duty  Control of Employee?Control of Employee?

Campbell v. Etiak (Pa. Super. 2006)

Chicken teriyaki lodged in throat Chicken teriyaki lodged in throat  No restaurant employee trained in No restaurant employee trained in

Heimlich maneuverHeimlich maneuver What duty of care owed?What duty of care owed?

Governmental Entities

CommonwealthCommonwealth Local AgenciesLocal Agencies

Sidewalks – Dangerous Conditions Of

42 Pa. C.S.A. §852242 Pa. C.S.A. §8522 42 Pa. C.S.A. §854242 Pa. C.S.A. §8542

Jones v. SEPTA

Dangerous condition must have Dangerous condition must have "derived, originated or had as its "derived, originated or had as its source the realty itself"source the realty itself"

Real Property

Commonwealth Agencies - Commonwealth Agencies - "Dangerous Condition Of“"Dangerous Condition Of“

Local Agencies - "Care, Custody or Local Agencies - "Care, Custody or Control"Control"

City-Owned Sidewalks

Reid v. CityReid v. City

Sidewalk Under "Care, Custody, Sidewalk Under "Care, Custody, Control and Possession"Control and Possession"

Primary v. Secondary LiabilityPrimary v. Secondary Liability No Actual Defect in SidewalkNo Actual Defect in Sidewalk Sidewalk v. Real Property Sidewalk v. Real Property

ExceptionException

Real Property/Fixture

LoFurnoLoFurno (Pa. Cmwlth. 2006) (Pa. Cmwlth. 2006)

Sander bolted to floor and Sander bolted to floor and connected to dust collection connected to dust collection systemsystem

Moved occasionally for cleaningMoved occasionally for cleaning IntentIntent

Daubenspeck (Pa. Cmwlth. 2006)

  Multiple accidents on interstate as Multiple accidents on interstate as a result of icea result of ice

State police presence State police presence State police v. PennDOTState police v. PennDOT

Elevator Cases

Misleveling Misleveling  Door strikesDoor strikes Yo-yo effectYo-yo effect Stuck between floorsStuck between floors

Misleveling - Trips & Falls Doors start to open before floor Doors start to open before floor

level reachedlevel reached Elevator stopsElevator stops

Door Strikes

Door reopening devicesDoor reopening devices Mechanical optical - visible or Mechanical optical - visible or

infraredinfrared Fail safe"Fail safe"

Legal Considerations

Duty of careDuty of care InviteeInvitee Strict liabilityStrict liability

Res Ipsa Loquitor

Restatement (Second) of Torts Restatement (Second) of Torts §328(d)§328(d)

Ruling out other responsible Ruling out other responsible causescauses

Plaintiff's conduct - manual Plaintiff's conduct - manual override or abuse of sensor override or abuse of sensor elementselements

Statute of Repose

  42 Pa. C.S.A. §5536 - 12 years42 Pa. C.S.A. §5536 - 12 years