PATLA Premises Liability April 13, 2007

Philadelphia Lawyer Philadelphia Lawyer - - Joel D. FeldmanJoel D. Feldman

Anapol, Schwartz, Weiss, Cohan, Anapol, Schwartz, Weiss, 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 contractor/service contractor

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 defendantsVideotape deposition of defendants

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 of Other sidewalks, parking lots free of ice and snowice 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 crews Presence of defendant's snow crews working at time of accident working at time of accident (Restatement (Second) of Torts §323(Restatement (Second) of Torts §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 ice - Once establish isolated patch of ice - are you there? 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 Snow plowed, refroze, causing plaintiff's

fall 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 structuresDownspouts and outdoor structures

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 Duty Plaintiff's Duty v. Defendant's 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 ExceptionSidewalk v. Real Property Exception

Real Property/Fixture

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

Sander bolted to floor and connected Sander bolted to floor and connected to dust collection systemto dust collection system

Moved occasionally for cleaningMoved occasionally for cleaning

IntentIntent

Daubenspeck (Pa. Cmwlth. 2006)

  Multiple accidents on interstate as a Multiple accidents on interstate as a result of iceresult 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 level Doors start to open before floor level reachedreached

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 causesRuling out other responsible causes

Plaintiff's conduct - manual override Plaintiff's conduct - manual override or abuse of sensor elementsor abuse of sensor elements

Statute of Repose

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