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Sidewalk Similar in Color to Lower Sidewalk = Dangerous Condition? (PA)

April 6, 2019

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<p style="text-align: justify;">In <a href=""><em>Slappy-Sutton,</em> et al. v. Speedway <em>LLC</em></a>, the District Court for the Eastern District of Pennsylvania entered summary judgment in favor of defendant, Speedway LLC and the plaintiffs appealed. The Third Circuit reversed the district court’s entry of summary judgment finding that there were genuine disputes of material fact.</p>
<p style="text-align: justify;">Plaintiff, Slappy-Sutton went inside Speedway convenience store to purchase snacks. After exiting the store, he crossed the sidewalk, but failed to perceive the drop-down to the ground below, and he fell. According to plaintiff, the end of the sidewalk was imperceptible due to a one-foot-wide concrete apron that was nearly identical in color to and abutted the sidewalk. Plaintiff alleged suffered physical, economical, and emotional damages in state court.</p>
<p style="text-align: justify;">Following discovery, the district court granted Speedway’s motion for summary judgment, finding that the similarity in color between the sidewalk and concrete apron did not create a dangerous condition, and that, if it did create a dangerous condition, it was open and obvious, such that Speedway was not liable for Plaintiff’s injuries. Plaintiff appealed arguing that a dispute of material fact exists as to whether the sidewalk was a dangerous condition, and, if it was, whether it was open and obvious.</p>
<p style="text-align: justify;">Based on the Third Circuit’s review of the record, the court agreed with the plaintiff. For example, plaintiff testified that, in his experience, a sidewalk’s end is usually perceptible because it either clearly contrasts with the pavement below or is marked with paint, and that he had never seen a sidewalk like Speedway’s. Also, plaintiff was prepared to introduce expert testimony to support his contention that the sidewalk’s condition was dangerous if the case went to trial.  According to the Court, reasonable minds could differ on the issue of whether the sidewalk was dangerous and whether the condition was open and obvious; thus this was a question of fact for the jury.  Thanks to Melisa Buchowiec for her contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.</p>


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