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The Pennsylvania Supreme Court is set to decide whether liability should extend to a contractor for creating a dangerous condition on land that was discoverable by a subsequent owner or user of the land.

The justices granted allocatur Aug. 8 in Davis v. NVR, agreeing to review a Superior Court decision from January that upheld an Allegheny County judge’s summary judgment ruling in favor of four contractor defendants in a slip-and-fall case.

The unanimous three-judge Superior Court panel ruled in a Jan. 31 memorandum opinion that NVR Inc., Meritage Group, R.F. Mitall & Associates and Stroschein Road Associates could not be held liable for ice on a sidewalk in a residential development they had a hand in planning and building.

Senior Judge Eugene B. Strassburger III, writing for the panel, said the Superior Court was constrained by its own 2012 decision in Longwell v. Giordano, which Strassburger also penned.

In Longwell, the court had found that a contractor—C.J. Long—who paved an apartment complex’s driveway could not be held liable for a tenant’s injuries incurred when he fell off a seven- or eight-inch drop at the edge of the driveway. The court did, however, allow the suit to proceed against the apartment complex’s landlords.

The Longwell court, citing its own 2009 ruling in Gresik v. PA Partners and that court’s embrace of Section 385 of the Restatement (Second) of Torts, found that a contractor can only be held liable for creating a dangerous condition on land if that condition was unlikely to be discovered by the possessor.

The Gresik court had expressly declined to follow the Commonwealth Court’s reasoning in the 1993 case Gilbert v. Consolidated Rail Corp., which had said that “comment (c) [of Section 385 of the Restatement (Second) of Torts] provides for potential liability to third persons and the possessor of the property when the condition may be considered a latent defect.”

“Applying our reasoning in Gresik to the instant case, it cannot be said that C.J. Long made the area of the drop-off dangerous in a way that the [landlords] were unlikely to discover,” the Longwell court ruled.

Strassburger said the panel in Davis had no power to overturn the Longwell panel’s decision, even if it wanted to.

But Strassburger added in a footnote, “The author of this memorandum, also the author of Longwell, does not agree with plaintiff that Longwell was wrongly decided.”

Therefore, the court ruled that plaintiff Dr. Helen Davis could not sue the contractor defendants for designing and building a sidewalk that passed through a wetlands area and periodically was covered with water that froze in the winter.

“Here, there was no question of material fact precluding entry of judgment as a matter of law: the condition of water covering the sidewalk in the wetlands area was one likely to be discovered by the possessor and, indeed, was known by the possessor long before plaintiff’s injury,” Strassburger said.

Strassburger was joined in the Davis opinion by Judges Anne E. Lazarus and Carl A. Solano.

“It’s clear that there is one rule in the Commonwealth Court and another rule in the Superior Court,” counsel for Davis, James Cole of Cole & Hens-Greco in Pittsburgh, said. “And I will make a prediction and that is that the Supreme Court will resolve that conflict and I hope it’s in favor of Dr. Davis.”

R.F. Mitall’s attorney, Douglas C. LaSota of Marshall Dennehey Warner Coleman & Goggin in Pittsburgh, declined to comment.

Meritage was represented by Bradley Linsenmeyer. Linsenmeyer is listed on the docket as being with Robb Leonard Mulvihill in Pittsburgh but has since left the firm. Updated contact information for Linsenmeyer could not be located.

NVR was represented by Kathleen A. Gallagher of Cipriani & Werner in Pittsburgh, who declined to comment.

The Pennsylvania Supreme Court is set to decide whether liability should extend to a contractor for creating a dangerous condition on land that was discoverable by a subsequent owner or user of the land.

The justices granted allocatur Aug. 8 in Davis v. NVR, agreeing to review a Superior Court decision from January that upheld an Allegheny County judge’s summary judgment ruling in favor of four contractor defendants in a slip-and-fall case.

The unanimous three-judge Superior Court panel ruled in a Jan. 31 memorandum opinion that NVR Inc. , Meritage Group, R.F. Mitall & Associates and Stroschein Road Associates could not be held liable for ice on a sidewalk in a residential development they had a hand in planning and building.

Senior Judge Eugene B. Strassburger III, writing for the panel, said the Superior Court was constrained by its own 2012 decision in Longwell v. Giordano, which Strassburger also penned.

In Longwell, the court had found that a contractor—C.J. Long—who paved an apartment complex’s driveway could not be held liable for a tenant’s injuries incurred when he fell off a seven- or eight-inch drop at the edge of the driveway. The court did, however, allow the suit to proceed against the apartment complex’s landlords.

The Longwell court, citing its own 2009 ruling in Gresik v. PA Partners and that court’s embrace of Section 385 of the Restatement (Second) of Torts, found that a contractor can only be held liable for creating a dangerous condition on land if that condition was unlikely to be discovered by the possessor.

The Gresik court had expressly declined to follow the Commonwealth Court’s reasoning in the 1993 case Gilbert v. Consolidated Rail Corp., which had said that “comment (c) [of Section 385 of the Restatement (Second) of Torts] provides for potential liability to third persons and the possessor of the property when the condition may be considered a latent defect.”

“Applying our reasoning in Gresik to the instant case, it cannot be said that C.J. Long made the area of the drop-off dangerous in a way that the [landlords] were unlikely to discover,” the Longwell court ruled.

Strassburger said the panel in Davis had no power to overturn the Longwell panel’s decision, even if it wanted to.

But Strassburger added in a footnote, “The author of this memorandum, also the author of Longwell, does not agree with plaintiff that Longwell was wrongly decided.”

Therefore, the court ruled that plaintiff Dr. Helen Davis could not sue the contractor defendants for designing and building a sidewalk that passed through a wetlands area and periodically was covered with water that froze in the winter.

“Here, there was no question of material fact precluding entry of judgment as a matter of law: the condition of water covering the sidewalk in the wetlands area was one likely to be discovered by the possessor and, indeed, was known by the possessor long before plaintiff’s injury,” Strassburger said.

Strassburger was joined in the Davis opinion by Judges Anne E. Lazarus and Carl A. Solano.

“It’s clear that there is one rule in the Commonwealth Court and another rule in the Superior Court,” counsel for Davis, James Cole of Cole & Hens-Greco in Pittsburgh, said. “And I will make a prediction and that is that the Supreme Court will resolve that conflict and I hope it’s in favor of Dr. Davis.”

R.F. Mitall’s attorney, Douglas C. LaSota of Marshall Dennehey Warner Coleman & Goggin in Pittsburgh, declined to comment.

Meritage was represented by Bradley Linsenmeyer. Linsenmeyer is listed on the docket as being with Robb Leonard Mulvihill in Pittsburgh but has since left the firm. Updated contact information for Linsenmeyer could not be located.

NVR was represented by Kathleen A. Gallagher of Cipriani & Werner in Pittsburgh, who declined to comment.