Personal Injury • Premises Liability

Bruno v. Stroud Mall Assoc., PICS Case No. 14-0127 (C.P. Monroe Dec. 19, 2013) Williamson, J. (9 pages).

When plaintiff alleges that a snow-covered path apparently used by other pedestrians was the only available safe alternative of travel across a shopping mall, a genuine issue of material fact exists as to defendant’s property possessor’s duty of care, precluding summary judgment. Denied.

Plaintiff Jocelyne Bruno brought suit against defendants arising from her alleged fall on a snow and ice-covered non-pedestrian access, landscaping area of a shopping mall operated by defendants.

Defendants brought a motion for summary judgment, contending that under Pennsylvania law they owed no duty to plaintiff to remove snow and ice from the non-pedestrian area where plaintiff allegedly fell. Defendants argued that it was not foreseeable that plaintiff would walk through the non-pedestrian area; moreover, defendants argued that plaintiff knowingly stepped onto snow on a landscaping area that had no pedestrian access, failing to observe an open and obvious hazard, and also failing to use an alternative means of access provided by defendants.

Plaintiff contended that a genuine issue of material fact existed, asserting that defendants knew or should have know that pedestrians would and did use the non-pedestrian area, as defendant provided no sidewalks in that area, and the only other option to traverse was a busy access roadway. Moreover, defendant did or should have observed that the snow and ice were dirt-covered and hard packed, evidencing common and recent pedestrian use.

The court noted that the standard of care owed by a possessor of land to invitees was established in Carrender v. Fitterer, where the court adopted the Restatement (Second) of Torts §§343 and 343A, holding that a possessor of land is not liable to invitees for harm caused by an activity or condition whose danger is known or obvious, unless the possessor should anticipate harm despite such knowledge or obviousness.

In denying defendants’ motion for summary judgment, the court held that a genuine issue of material fact existed in the instant case regarding whether defendants knew that pedestrians were traversing the area where plaintiff allegedly fell, and whether, by inference, the risk of harm was foreseeable to defendants by not clearing the area in question or providing an alternative safe route. Moreover, the court found another genuine issue of material fact as to whether the alternative means of access alleged by defendants to exist was in fact a safe route; or, put another way, whether the route taken by plaintiff was the safest route available to pedestrians.