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PA property owners: Beware of limitations to trivial defect defense

8/12/24

By: Meaghan Mahon

Although property owners have a duty to maintain their sidewalks in a safe condition, property owners are not responsible for trivial defects that exist in the sidewalk.  

Pennsylvania courts have held that an elevation, depression, or irregularity in a sidewalk, street, or highway may be so trivial that, as a matter of law, courts are bound to hold that there was no negligence in permitting such depression or irregularity to exist. Davis v. Potter, 340 Pa. 485, 17 A.2d 338 (1941); see Bosack v. Pittsburgh Railways Co., 410 Pa. 5 558, 189 A.2d 877 (1963). “No definite or mathematical rule can be laid down as to the depth or size of a sidewalk depression” to determine whether the defect is trivial as a matter of law. Breskin v. 535 Fifth Ave., 381 Pa. 461, 113 A.2d 316, 318 (1955). Rather, what constitutes a defect sufficient to render liability must be determined in the light of the character of the traffic for which the use of the street is intended, and, except where the defect is obviously trivial, that question must be submitted to the jury. Aloia v. City of Washington, 361 Pa. 620, 622-623, 65 A.2d 685, 686 (Pa. 1949). 

Property owners in Pennsylvania often rely on the trivial defect defense to resolve cases in their favor. While the defense is often successful, owners should be aware of the defense’s limitations. 

In a recent PA case, a Plaintiff sued a homeowner, claiming to trip and fall on an uneven sidewalk in front of a Defendant’s home. See Jennings v. Garner, No. CV 2021-CV-00391 (C.P. Lyc. Co. Feb. 2, 2024 Carlucci, J.). The Defendant sought summary judgment, arguing that the sidewalk defect was de minimus. Defendant attempted to set a bright line rule for what type of defect is trivial under the law. The Court of Common Pleas of Lycoming County denied the Motion for Summary Judgment because photos of the sidewalk revealed a two (2) inch defect in the sidewalk joint. The Court held that the question of whether the defect constitutes negligence is a material issue of fact. 

This holding could be a blow to Defendant property owners who rely upon trivial defect defenses. As the courts in Pennsylvania continue to develop limitations on the trivial defect defense, property owners should be cautious of any rulings that may require them to take action to avoid liability for trip and fall accidents on or near their property. We will be monitoring this action for any appeal.

Please do not hesitate to contact Meaghan Mahon at meaghan.mahon@fmglaw.com or your local FMG relationship partner to discuss this important opinion or for any related Tort questions.