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The “Trivial Defects” Rule Can Be a Starting Point for a Business Owner's Defense in a Slip and Fall Claim

by:Ryan Mick

Proving Negligence in Slip and Fall Cases

“Slip and fall” is a term used to describe a personal injury action against land owners when a person slips or trips on their property and sustains injuries.  These types of personal injury claims are commonly asserted against owners of restaurants and retail stores.  Under Pennsylvania law, customers, also know as “business invitees,” are owed the highest duty of care. 

A business owner must take all reasonable precautions to ensure that a customer does not injure him or herself while frequenting the owner’s business.  In order for a business owner to be liable, a plaintiff who has slipped or who has fallen must prove that business owner was negligent.  The heart of a plaintiff’s case will be demonstrating:

1)      A “defective condition existed that presented an unreasonable risk of harm” to the plaintiff;  and

2)      The business owner had notice or should have had notice of this defective condition. 

In a recent unpublished opinion, Ford v. Red Robin Int’l, Inc., Pa. Super. Unpub. LEXIS 3191, the Pennsylvania Superior Court upheld the Westmoreland County Court of Common Pleas’ decision to dismiss the plaintiff’s slip and fall claim because the “defective” condition was “trivial” and did not present an unreasonable risk of harm to the plaintiff.  This holding presents a business owner with a viable defense to the first element of a slip and fall claim, the defective condition.

Can A Puddle Present Unreasonable Risk of Harm?

In Red Robin, the plaintiff and her husband went to Red Robin for dinner.  As the plaintiff was walking across the parking lot to the restaurant, she stepped into a puddle where the curb and the sidewalk met.  The plaintiff continued to the restaurant without incident.  After dinner, the Plaintiff exited the restaurant and stepped into the same puddle but this time she fell and sustained injuries.  

The plaintiff brought suit against Red Robin arguing that Red Robin was negligent for failing to fix the “defective condition” created by the puddle.  To prove that the puddle was a “defective condition,” the plaintiff argued that the puddle was two inches deep and a rock in the puddle caused her to lose her balance and fall.  Red Robin filed a Motion for Summary Judgment arguing, among other things, that the defective condition was “trivial” and that as a matter of law, a business owner could not be responsible for such a common irregularity.  The Court of Common Pleas of Westmoreland County granted Red Robin’s Motion and dismissed the plaintiff’s claim.

The Trivial Defects Rule

On appeal, the Superior Court of Pennsylvania affirmed the Court of Common Pleas’ decision to grant summary judgment.  In affirming its decision, the Superior Court pointed to the “trivial defects” rule.  The “trivial defects” rule is intended to “avoid imposing liability on property owners for ‘common and usual’ imperfections.”   The Superior Court relied upon its reasoning in Mull v. Ickes, a 2010 case regarding a slip and fall claim.  Mull stood for the proposition that “an elevation, depression, or irregularity in a sidewalk or in a 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.”  The Superior Court noted there is no mathematical or concrete rule to determine if a defect is “trivial.”  Each case must be assessed according to its circumstances.

The plaintiff’s only evidence for a “defective condition” was that the puddle was two inches deep and that a small piece of rock or gravel existed in the shallow puddle.  The plaintiff also presented no evidence to counter Red Robin’s expert report asserting that no defective condition existed.  Applying the “trivial defect rule” as established in Mull, the Superior Court affirmed the Court of Common Pleas’ decision that the plaintiff’s evidence was insufficient to establish a “defective condition.”  According to the Superior Court, the Court of Common Pleas was correct in finding that the puddle constituted a “trivial defect” and that it did not present an unreasonable risk of harm to the plaintiff.   As such, the Superior Court upheld the lower court’s order granting Red Robin’s Motion for Summary Judgment.

Building a Defense When “Trivial” Conditions Are Present

In slip and fall cases, prudent counsel should look to the conditions which allegedly caused the plaintiff’s fall and injury. Counsel should first evaluate whether the condition was a “usual or common irregularity.”  While there is no hard and fast rule for determining common irregularities, generally rocks, pebbles, slight indentions, or small cracks in sidewalks are considered to be “trivial.”  Red Robinshows that Pennsylvania courts are willing to entertain this argument when presented with “defects” as described above, and that this argument can withstand appellate scrutiny.  Although the “trivial defects” rule is applied on a case by case basis, it serves a good starting point for building a business owner’s defense to a slip and fall claim.   If this argument is successful, a court will dismiss the plaintiff’s claim and the business owner will not have to further engage in costly litigation.


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