PENNSYLVANIA RECORD

A judge has disagreed with an argument by Hess Corp. in a negligence

action that a hazardous condition at one of its gas stations that caused an elderly woman to become injured was trivial, and not actionable as a matter of law.

U.S. District Judge R. Barclay Surrick, of the Eastern District of Pennsylvania, issued a ruling last week denying a bid for summary judgment by Hess, which is being sued by Mary Mieloch over injuries the then-81-year-old says she sustained on Dec. 8, 2010, at a defendant-owned gas station on the 6300 block of Oxford Avenue in Northeast Philadelphia.

The plaintiff’s complaint says the woman sustained injuries to her jaw, teeth, face, hands and knees after, while walking to a kiosk to pre-pay for her gas, she tripped on an uneven surface in an area where the asphalt meets a concrete pad on which the gas pumps are located.

Mieloch, a frequent customer who has been going to that gas station for about a decade, claims that she didn’t notice the defect in the ground on that December day until she fell.

The plaintiff originally filed suit in Philadelphia’s Common Pleas Court but the defense removed the action to federal court in late December 2012, records show.

In its motion for summary judgment, which was filed this past December, attorneys for Hess argued that the negligence claim fails because the condition in the gas station parking lot was de mimimus, or trivial.

The plaintiff counter-argued that the change in elevation between the asphalt and concrete pad is not so obviously trivial and that her claim should be allowed to proceed to a jury.

Among other things, Surrick, the judge assigned to the case, noted that in its argument, Hess ignored Pennsylvania Supreme Court guidance that there is “no definite or mathematical rule” for determining whether a defect is trivial.

“Each case must be examined based on the facts presented and upon all of the surrounding circumstances,” Surrick wrote. “We reject Defendant’s invitation to apply a numerical delineation between defects that qualify as trivial and those that do not. The case law does not support this approach.”

Surrick wrote that even if he did accept the defendant’s argument that defects less than two inches are categorically trivial, a factual dispute still exists as to the actual depth of the depression at the parking lot.

“Accepting Plaintiff’s version of the facts, the change in elevation between the asphalt and the concrete pad was at least two inches, if not more,” Surrick wrote. “This undermines Defendant’s entire premise for summary judgment.”

The judge wrote that after reviewing the evidence by the parties, which included nine photographs and the transcript of the plaintiff’s deposition, “we are unable to conclude as a matter of law that the defect at the Hess parking lot is obviously trivial.”

“The change in elevation between the asphalt and the concrete pad is somewhere between 1.5 inches and over three inches, which although not significant, is certainly not trifling,” Surrick wrote. “Moreover, the elevated portion of the concrete pad over which Plaintiff tripped and fell is located in between the gas pumps and the payment kiosk, an area that customers are required to walk through because of Hess’ practice of requiring customers to pre-pay for fuel.”

Under the circumstances, Surrick wrote, the court could not grant the defense summary judgment at this juncture, since the question of whether the condition in the parking lot constituted a trivial defect is best left for a jury to decide.