Jon Campisi Feb. 7, 2014, 8:24am


A federal judge in Philadelphia has thrown out a premises liability action

that had been filed against a homeowners association by a woman who says she broke her ankle after slipping on black ice at the defendant’s property.

Anna Modica sued Maple Meadows Homeowners Association over a slip-and-fall incident that occurred during the early morning hours of Jan. 4, 2011, in which the woman, who was visiting her daughter at the Maple Meadows condominium complex in Conshohocken, Pa., alleged she became injured after falling on black ice.

The plaintiff claimed that she had been looking down for ice in the parking lot, but that she didn’t see any until after she fell to the ground.

A witness who inspected the area after the fall had not seen any salt, and photos taken two days after the incident showed a black ice patch at the location of Modica’s fall, records show.

In her complaint, Modica argued that Maple Meadows breached its duty to keep the premises safe.

The defendant moved for summary judgment on two grounds: the so-called “hills and ridges” doctrine and its lack of notice, either actual or constructive, of the ice upon which Modica allegedly fell.

In a Jan. 31 memorandum and order, U.S. District Judge Gene E.K. Pratter, sitting in the Eastern District of Pennsylvania, wrote that Modica had not carried her burden to articulate or identify evidence that the defendant had notice of the ice upon which she asserts she fell.

“Once Maple Meadows, in its present Motion for Summary Judgment, has pointed to evidence that it had no actual or constructive notice of the ice, Ms. Modica must then ‘rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings [or] legal memoranda,’” Pratter wrote. “But those parts of the record to which Ms. Modica points amount to mere conjecture and rhetorical supposition which ‘could not lead a rational trier of fact to find for [her], because she cannot establish that Maple Meadows had actual or constructive notice of the ice upon which she allegedly fell. The Motion for Summary Judgment must therefore be granted.”

The evidence to which the plaintiff pointed, the judge wrote, “does not support her argument that the black ice upon which [she] allegedly slipped was ‘known’ to Maple Meadows …”

Pratter wrote that Modica cannot succeed in establishing notice by claiming that Maple Meadows knew there were snow piles and knew that those piles would melt and refreeze causing dangerous conditions in the middle of the night.

The plaintiff’s fall occurred around 3 in the morning, her complaint shows.

To establish constructive notice, a plaintiff must produce evidence that the dangerous condition existed long enough such that, but for the exercise of reasonable diligence, the defendant would have discovered it, the judge noted in her memorandum.

The question under the first prong of the test, Pratter wrote, is one of actual timing, not one of knowledge.

“Ms. Modica cannot proceed under the first method because she has produced no evidence as to when ice in fact formed,” Pratter wrote. “To the contrary, Ms. Modica had been out earlier on the day before her fall, and returned just hours before the accident, at around 10:30 p.m., and she testified that she did not notice any areas of ice in the parking lot.

“The weather data itself does not provide sufficient indication as to when – or if – ice formed.”

Pratter also wrote that there was no evidence presented on the physical issue of the relationship of time, temperature and quantity of depth of layout of water, or of any chemical or other existing surface treatment of the parking lot, to persuade the court that even if there had or could have been melting and refreezing, that such changes likely occurred.

“In short, ‘[d]espite the meteorological evidence that the temperature had fallen below freezing in the hours before the accident, there was no evidence that ice had existed for any length of time before’ Ms. Modica fell on it,” the memorandum states.

Without any evidence that the black ice was observable for any significant length of time prior to the accident, a jury could not reasonably infer that the defendant had constructive notice of the hazardous condition, the judge noted.

“And without evidence of when – or if – ice actually formed on the spot on which she fell, Ms. Modica cannot show that the ice was there long enough to put Maple Meadows on constructive notice,” Pratter wrote.

The judge said what appears to be lurking in her argument was the notion that Maple Meadows should not be able to escape liability when it had failed to inspect the parking lot in the days after it had the lot plowed and salted.

Such a failure-to-inspect theory, however, is not viable under this case, the judge wrote, because it is incompatible with the “conceptual underpinnings of the constructive notice doctrine.”

“In fact,” Pratter wrote, “under the governing case law, such a theory would be tautological and would permit an end run on the general means of establishing constructive notice.

“To say that Maple Meadows had constructive notice because it would have seen ice if it had inspected, and therefore, that it should have inspected, for it if had, it would have had notice, is entirely circular reasoning.”

Pratter wrote that a defendant’s duty to inspect is subject to a reasonableness standard that informs the inquiry of whether the defendant has constructive notice.

“Constructive notice is an indirect means for imposing a duty to take reasonable steps to prevent foreseeable harm – constructive notice arises from, but does not impose, the duty to inspect,” the judge wrote.

The judge wrote that in this case, without evidence of when a dangerous condition developed, the plaintiff cannot show that the defendant would have discovered the condition even if it inspected.

In the end, the judge granted the defendant’s motion to dismiss.

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