Trial News

Whether the similarity in color between a sidewalk outside a convenience store and a concrete apron covering a trench next to the sidewalk constituted a dangerous condition is a jury question, the Third Circuit has ruled. The court reversed summary judgment for the defendant, finding that a genuine dispute of material fact  existed as to whether the similar color constituted a dangerous condition and if so, whether it was an open and obvious condition that would release the defendant from liability for the plaintiff’s injuries. (Slappy-Sutton v. Speedway LLC, 2019 WL 1332334 (3d Cir. Mar. 25, 2019).)

Rod Slappy-Sutton was leaving the Speedway convenience store in Pennsylvania one evening after refueling his car and purchasing some snacks. As he stepped off the sidewalk, he did not notice a large drop down to the ground. He fell and suffered injuries. He claimed that the drop from the edge of the sidewalk was imperceptible because a one-foot-wide concrete apron had been installed that was the same color as the sidewalk itself. The defendant had installed the apron to fill in a trench that had been dug during upgrades to an underground gas tank monitoring system. Before the apron was installed, the parking lot asphalt—which was a different color—abutted the sidewalk.

The plaintiff sued the convenience store in the Eastern District of Pennsylvania, alleging that the similar color of the sidewalk and concrete apron created a dangerous condition. The defendant moved for summary judgment, arguing that the concrete apron was an open and obvious condition. The district court granted summary judgment, and the plaintiff appealed.

The Third Circuit reversed, concluding that a genuine dispute of material fact existed as to whether the concrete apron was a dangerous condition, and if so, whether it was open and obvious. Pennsylvania law, relying on The Restatement (Second) of Torts §343, provides that landowners or operators are liable for an invitee’s injuries from a foreseeable harm when they knew about or reasonably should have known about a condition that created an unreasonable risk of harm and should not have expected the invitee to discover the danger and exercise reasonable care to protect against it. Whether a property condition was dangerous and open and obvious are questions for a jury to answer.

Despite the parties’ disagreement about the characterization of the sidewalk, the district court found that there was no genuine dispute of material fact because the plaintiff had stepped up onto the sidewalk when he arrived at the defendant’s property without issue and should have noticed the sidewalk’s condition at that time. But the Third Circuit disagreed—it held  that the plaintiff had raised sufficient questions about his understanding of the sidewalk’s condition and provided evidence that could allow a jury could find in his favor. For example, he stated that the end of a sidewalk is typically marked with paint or clearly contrasts in color with the pavement below. He also testified that the color similarity between the sidewalk and concrete apron led him to believe the sidewalk was wider. The plaintiff also planned to introduce an expert at trial to testify about the sidewalk’s dangerous condition, and surveillance camera footage and photographs taken of the sidewalk that supported his position that the appearance of the sidewalk varied depending on lighting conditions and the angle from which it is approached. Considering all of this, the court concluded that “reasonable minds could differ, and as a result, these are ‘questions of fact for the jury.’”

Philadelphia attorney John Fox, who represented the plaintiff, said, “The district court erred when it held that no defect existed. It erroneously relied on authorities from other jurisdictions, particularly Mississippi, whose law on ‘open and obvious’ defects the Fifth Circuit had declared to be in hopeless disarray. Numerous Pennsylvania decisions have held that even garden-variety curbs, slopes, stairs, and the like can contain latent defects that a reasonable patron might not perceive.”