PENNSYLVANIA RECORD

A three-judge state appellate court panel has ruled that a Philadelphia Common

Pleas Court judge was wrong to grant summary judgment to the City of Philadelphia in a premises liability action filed by a woman who injured herself after falling on damaged concrete.

Commonwealth Court Judge Patricia A. McCullough, who penned the Nov. 20 opinion in Dolores Shaw v. Thomas Jefferson University and City of Philadelphia, wrote that the trial court should not have granted summary judgment to the city based on what is known as the “coordinate jurisdiction rule.”

The record shows that Philadelphia Common Pleas Court Judge Susan I. Schulman granted summary judgment in favor of the city on Oct. 11, 2012.

Attorney William T. Lawson, III filed suit in Common Pleas Court in early February 2010 on behalf of Shaw, a New Jersey woman who says she injured herself after falling on depressed sidewalk on the 1000 block of Walnut Street in downtown Philadelphia.

The negligence suit alleged that the defective sidewalk and otherwise unsafe condition caused the plaintiff’s fall.

In answer to the suit, city lawyers maintained that it had governmental immunity, and that the university was primarily liable for the damages.

The city subsequently sought contribution and indemnity from the university, according to the record.

The court docket in the case shows that Philadelphia Common Pleas Court Judge Allan Tereshko granted summary judgment to the university in late January 2011.

In its motion seeking judgment, the university claimed it was not negligent because the sidewalk defect was trivial, and that it didn’t have actual or constructive notice of the defect.

Shaw initially appealed to the Superior Court, but that body quashed the appeal as interlocutory because the city remained a defendant.

In its motion for summary judgment, the city argued that judgment should be granted for the same reasons it was granted to the university, and also because the “coordinate rule” says that the city would only be held secondarily liable in the case.

The city also asserted that Shaw failed to allege the city had actual or constructive notice of the sidewalk defect.

The trial court ended up granting summary judgment to the city because an “equal tribunal had granted summary judgment to the primarily responsible party and, under the coordinate jurisdiction rule, the claims against the City must be dismissed,” the Commonwealth Court ruling states.

In her appeal to Commonwealth Court, Shaw argued that the trial judge erred in granting summary judgment by determining that the defect in the sidewalk was trivial and not a question for the jury.

Shaw also argued that if the grant of summary judgment to the university was in error then the grant of summary judgment to the city was also in error, and that the city’s motion for summary judgment should have been independently reviewed regardless of the coordinate jurisdiction rule.

The Commonwealth Court judges agreed with Shaw’s assertion that summary judgment should not have been granted because there is no “bright-line rule for a court to use in determining whether a sidewalk defect is obviously trivial.

“In this case, we agree,” the appellate judges wrote. “Our Supreme Court has consistently held as a matter of law that defendants are not liable for negligence when a sidewalk defect is obviously trivial.”

The high court has stated that “questions of whether a sidewalk defect is trivial and whether a defendant has been negligent in allowing the defect to remain should be submitted to the jury when there are genuine issues of material fact based on the circumstances, the panel noted.

The Commonwealth Court judges determined that the sidewalk defect in this case was “not so obviously trivial” that summary judgment should have been granted to the defendants.

The panel went on to write that the trial court judge was wrong to grant summary judgment to the city because the same was afforded to the university.

The judges wrote that the granting of summary judgment to the university was in error because the sidewalk defect was not obviously trivial as a matter of law.

“Because the City was granted summary judgment based only on the coordinate jurisdiction rule, and because the University, as the primarily liable party, had been dismissed from the case, there is no longer any basis for the grant of summary judgment to the City,” the ruling states. “Thus, the questions of the City’s negligence and liability are also for the jury to decide.”

The appellate panel remanded the case to Philadelphia.

McCullough was joined in the decision by Judges K. Kevin Brobson and Rochelle S. Friedman.