PATLA Premises Liability April 13, 2007 Philadelphia Lawyer - Joel D. Feldman Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. 1900 Delancey Place Philadelphia, PA 19103 (215) 735-3716 jfeldman @anapolschwartz.com

Types of Premises Accident Cases Slips, Trips, Falls and Elevators Recreation Cases Security Issues Liquor Liability/Dram Shop Work Place Safety

Slips, Trips, Falls and Elevators

Recreation Cases

Security Issues

Liquor Liability/Dram Shop

Work Place Safety

Investigation Plaintiff's interview Preservation of evidence Surveillance On-site inspection Expert

Plaintiff's interview

Preservation of evidence

Surveillance

On-site inspection

Expert

Potential Defendants Property owner Facilities manager Independent contractor /service contractor Manufacturer and installer elevator cases General and sub-contractors work place safety cases

Property owner

Facilities manager

Independent contractor /service contractor

Manufacturer and installer

elevator cases

General and sub-contractors

work place safety cases

Depositions Corporate designee Videotape deposition of defendants

Corporate designee

Videotape deposition of defendants

Law and Practice Pointers Outdoor Cases snow and ice defective walking surfaces miscellaneous Indoor Cases Governmental Entities

Outdoor Cases

snow and ice

defective walking surfaces

miscellaneous

Indoor Cases

Governmental Entities

Plaintiff's "Burden" Beyond Breach and Causation Plaintiff's Description of Condition Notice Mechanism of Fall Is Injury Medically Consistent? Plaintiff's Conduct Consistency of "Factual Scenarios"

Beyond Breach and Causation

Plaintiff's Description of Condition

Notice

Mechanism of Fall

Is Injury Medically Consistent?

Plaintiff's Conduct

Consistency of "Factual Scenarios"

Status of Injured Person Trespasser Licensee Invitee - Business or Social

Trespasser

Licensee

Invitee - Business or Social

Licensee Does possessor know or have reason to know of condition? Does condition involve an unreasonable risk of harm to those who will not discover condition? Fails to exercise reasonable care to cure or warn Restatement (Second) of Torts §342

Does possessor know or have reason to know of condition?

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

Fails to exercise reasonable care to cure or warn

Restatement (Second) of Torts §342

Ziack v. Inez Conocchia , Court of Common Pleas of Allegheny County, July 2006 Plaintiff admitted knew of change in elevation Plaintiff saw change in elevation before stepped over it Appreciation of what? Defect or seriousness of potential injury? Was status of plaintiff really determinative?

Plaintiff admitted knew of change in elevation

Plaintiff saw change in elevation before stepped over it

Appreciation of what?

Defect or seriousness of potential injury?

Was status of plaintiff really determinative?

Snow and Ice Cases Hills and Ridges Applicable Hills and Ridges Not Applicable

Hills and Ridges Applicable

Hills and Ridges Not Applicable

Hills and Ridges Doctrine Snow/Ice accumulated in ridges or elevations Size and character to unreasonably obstruct travel and pose danger Actual or constructive notice Causation

Snow/Ice accumulated in ridges or elevations

Size and character to unreasonably obstruct travel and pose danger

Actual or constructive notice

Causation

What are Generally Slippery Conditions? Surrounding areas also icy? Other sidewalks, parking lots free of ice and snow Roads and driving conditions Isolated patches

Surrounding areas also icy?

Other sidewalks, parking lots free of ice and snow

Roads and driving conditions

Isolated patches

Rozelle v. Becker Associates , Court of Common Pleas Columbia Cnty, June 2005 How to establish generally slippery conditions Presence of defendant's snow crews working at time of accident (Restatement (Second) of Torts §323

How to establish generally slippery conditions

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

Herbst v. Inven Associates , Court of Common Pleas of Dauphin County, 1998 Where did the sheet of ice come from? Overnight sudden formation or continual condition Generally slippery condition is fact issue

Where did the sheet of ice come from?

Overnight sudden formation or continual condition

Generally slippery condition is fact issue

Oliveri v. Kavanagh , Court of Common Pleas of Northampton County, 2005 Plaintiff's testimony - snow storm that day, no snow visible or any accumulation of snow and ice on sidewalk where fell Black ice

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

Black ice

Hills and Ridges What's a plaintiff to say? Hills and ridges Ridges and elevations Peaks and valleys Humps and hillocks Size and character What works What doesn't

What's a plaintiff to say?

Hills and ridges

Ridges and elevations

Peaks and valleys

Humps and hillocks

Size and character

What works

What doesn't

Isolated Patches of Ice Once establish isolated patch of ice - are you there? Peachey v. Walmart , Court of Common Please of Cumberland County, 2005 Where did the ice come from? Plaintiff's burden

Once establish isolated patch of ice - are you there?

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

Where did the ice come from?

Plaintiff's burden

Restatement (Second) of Torts §323 Landowner undertakes to clear away ice and snow Ferencz v. Milie , (Pa. 1987) Snow plowed, refroze, causing plaintiff's fall Harvey v. Rouse Chamberlain , (Pa. Super. 2006) Defendants plowed the road and subsequent thereto black ice formed Were conditions the result of an entirely natural accumulation?

Landowner undertakes to clear away ice and snow

Ferencz v. Milie , (Pa. 1987)

Snow plowed, refroze, causing plaintiff's fall

Harvey v. Rouse Chamberlain , (Pa. Super. 2006)

Defendants plowed the road and subsequent thereto black ice formed

Were conditions the result of an entirely natural accumulation?

Ice and Snow ~ Practice Pointers Plaintiff should not admit generally slippery conditions existed Plaintiff prepared to establish isolated patch of ice Source of ice, i.e., from natural or artificial condition §323 Restatement (Second) of Torts

Plaintiff should not admit generally slippery conditions existed

Plaintiff prepared to establish isolated patch of ice

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

§323 Restatement (Second) of Torts

Natural Accumulation v. Man - Made Condition Topography, depressions, gutters and Downspouts and outdoor structures

Topography, depressions, gutters and

Downspouts and outdoor structures

Non - Ice Slips, Trips, & Falls

Steps and Ramps Irregular risers or treads Unexpected single step

Irregular risers or treads

Unexpected single step

Commercial Properties Source - defendant or third party?

Source - defendant or third party?

Conditions Created by Defendant - Notice is Presumed Faulty freezers Vegetable misters Leaking roof Poor cleanup

Faulty freezers

Vegetable misters

Leaking roof

Poor cleanup

Conditions not Created by Defendant Source of foreign substance - unknown? How does one prove notice?

Source of foreign substance - unknown?

How does one prove notice?

Time Shopping carts Footprints Drying around edges Plaintiff's experience with mopped floors - drying rates

Shopping carts

Footprints

Drying around edges

Plaintiff's experience with mopped floors - drying rates

Campizi v. Acme Markets (Pa. Super. 2006) Blind Acme employee's cane Rounding corner of parallel aisles Duty to warn invitees of risk posed by disabled employee with cane

Blind Acme employee's cane

Rounding corner of parallel aisles

Duty to warn invitees of risk posed by disabled employee with cane

Restatement (Second) of Torts §343A Known and Obvious Dangers Plaintiff's Duty v. Defendant's Duty Control of Employee?

Known and Obvious Dangers

Plaintiff's Duty v. Defendant's Duty

Control of Employee?

Campbell v. Etiak (Pa. Super. 2006) Chicken teriyaki lodged in throat No restaurant employee trained in Heimlich maneuver What duty of care owed?

Chicken teriyaki lodged in throat

No restaurant employee trained in Heimlich maneuver

What duty of care owed?

Governmental Entities Commonwealth Local Agencies

Commonwealth

Local Agencies

Sidewalks – Dangerous Conditions Of 42 Pa. C.S.A. §8522 42 Pa. C.S.A. §8542

42 Pa. C.S.A. §8522

42 Pa. C.S.A. §8542

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

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

Real Property Commonwealth Agencies - "Dangerous Condition Of“ Local Agencies - "Care, Custody or Control"

Commonwealth Agencies - "Dangerous Condition Of“

Local Agencies - "Care, Custody or Control"

City-Owned Sidewalks Reid v. City Sidewalk Under "Care, Custody, Control and Possession" Primary v. Secondary Liability No Actual Defect in Sidewalk Sidewalk v. Real Property Exception

Reid v. City

Sidewalk Under "Care, Custody, Control and Possession"

Primary v. Secondary Liability

No Actual Defect in Sidewalk

Sidewalk v. Real Property Exception

Real Property/Fixture LoFurno (Pa. Cmwlth. 2006) Sander bolted to floor and connected to dust collection system Moved occasionally for cleaning Intent

LoFurno (Pa. Cmwlth. 2006)

Sander bolted to floor and connected to dust collection system

Moved occasionally for cleaning

Intent

Daubenspeck (Pa. Cmwlth. 2006) Multiple accidents on interstate as a result of ice State police presence State police v. PennDOT

Multiple accidents on interstate as a result of ice

State police presence

State police v. PennDOT

Elevator Cases Misleveling Door strikes Yo-yo effect Stuck between floors

Misleveling

Door strikes

Yo-yo effect

Stuck between floors

Misleveling - Trips & Falls Doors start to open before floor level reached Elevator stops

Doors start to open before floor level reached

Elevator stops

Door Strikes Door reopening devices Mechanical optical - visible or infrared Fail safe"

Door reopening devices

Mechanical optical - visible or infrared

Fail safe"

Legal Considerations Duty of care Invitee Strict liability

Duty of care

Invitee

Strict liability

Res Ipsa Loquitor Restatement (Second) of Torts §328(d) Ruling out other responsible causes Plaintiff's conduct - manual override or abuse of sensor elements

Restatement (Second) of Torts §328(d)

Ruling out other responsible causes

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

Statute of Repose 42 Pa. C.S.A. §5536 - 12 years

42 Pa. C.S.A. §5536 - 12 years