Rinaldi v. Levine

• Decision Date: 02 January 1962
• Citation: Rinaldi v. Levine, 176 A.2d 623, 406 Pa. 74 (Pa. 1962)
• Parties: Fred RINALDI v. Milton LEVINE and Ruth Levine, Appellants.
• Court: Pennsylvania Supreme Court

176 A.2d 623

406 Pa. 74

Fred RINALDI v. Milton LEVINE and Ruth Levine, Appellants.

Supreme Court of Pennsylvania.

January 2, 1962.

Michael A. Foley, Philadelphia, for appellants.

David Cohen, Hugh M. Odza, Philadelphia, for appellee.

Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN and ALPERN, JJ.

JONES Justice.

Fred Rinaldi [Rinaldi], enroute to his home at approximately 11:15 p. m on January 15, 1957, fell on a sidewalk owned and maintained by Dr. Milton Levine and his wife, Ruth Levine, [Levines] and situated at the southeast corner of 27th and Tasker Streets, Philadelphia. Alleging that his fall and the ensuing injuries were caused by hills and ridges of ice which had been permitted to accumulate on the sidewalk through Levines' negligence, Rinaldi instituted a trespass action against Levines in Court of Common Pleas No 5 of Philadelphia. After a trial before Judge Joseph Sloane and a jury, Rinaldi obtained a verdict of $10,000 against Levines. Levines' motions for judgment n. o. v. and a new trial were denied and judgment was entered on the verdict. From the entry of that judgment, this appeal was taken.

This appeal presents, two issues: (1) should the court below have entered judgment n. o. v? (2) if not, should a new trial have been granted?

Resolution of first issue depends upon an examination of the record to ascertain whether there was sufficient evidence to impale Levines with negligent conduct. In such examination and evaluation of this record we are bound, under our long established and salutary rule, to consider the evidence and all reasonable inferences arising therefrom in the light most favorable to Rinaldi. Ason v. Leonhart, 402 Pa. 312, 165 A.2d 625; Henderson v. Zubik, 390 Pa. 521, 136 A.2d 124. ^[1]

Rinaldi testified that, on the evening of the day prior to the accident--January 14, 1957--as he was returning home from work, he noticed that the sidewalk on the 27th Street side of Levines' premises had not been cleared of snow. Jay Snyderman, a witness for Rinaldi, testified that, about eight or nine hours prior to the accident--between 2:00 p. m. and 3:00 p. m.,--'that particular pavement, on that side of Tasker Street, and completely around the corner, was very hilly and lumpy and icy all the way around the whole property', that it 'looked like it hadn't been cleaned at all', that it 'was particularly icy there' [at the corner of 27th Street], that 'the pavement right in front of the office was extremely hilly and lumpy and very treacherous' and that he almost slipped. Such was the testimony as to the condition of the sidewalk prior to the accident.

As to the exact manner of the happening of the accident, Rinaldi was the sole witness. According to Rinaldi, he alighted from a trackless trolley bus at 27th and Tasker Streets at about 11:15 p. m. and it was then snowing; he noted as he went upon the curb at the southeast corner 'All fresh snow there'; when in front of the entrance to the office [Dr. Levine's office] he 'could feel my leg step on a piece of ice there, a ridge of ice or something'; he twisted his leg and went over on his hip; he described the condition of the ground where he fell as being 'bumps here, bumps there, right in front of where I fell'; he noted that it was a 'clean sheet of snow, and different places you could see where it was tramped on, and it was rather hard there'. Rinaldi made no attempt to describe, as to size and character either the 'bumps', 'the piece of ice' or the 'ridge of ice' and, under his own testimony, he stepped either on a 'piece of ice' or 'a ridge of ice' or 'something'.

The official records of the Weather Bureau indicated that snow had fallen from the evening of January 13 until approximately 8:00 a. m. on January 14 and that it started to snow again between 4:00 and 5:00 p. m. on January 15 and continued to snow until after the accident.

In Pennsylvania, an abutting property owner is primarily liable for the removal of ice and snow upon the sidewalk, Solinsky v. City of Wilkes-Barre, 375 Pa. 87, 93, 99 A.2d 570; Vinnacombe v. Philadelphia (and American Stores Co.), 297 Pa. 564, 147 A. 826; Beebe et al. v. City of Philadelphia, 312 Pa. 214, 216, 167 A. 570. However the law, wisely, does not require that such abutting owner keep the sidewalk free from snow and ice at all times: to hold otherwise would require the impossible in view of the climatic conditions. Whitton v. H. A. Gable Co., 331 Pa. 429, 431, 200 A. 644, 645, clearly expresses the quantum of duty imposed on the abutting owner: 'There is no absolute duty on the part of a landowner to keep his premises and sidewalks free from snow and ice at all times. These formations are natural phenomena incidental to our climate. See Goodman v. Corn Exchange National Bank & Trust Co. et al., 331 Pa. 587, 200 A. 642 * * *; Thomas v. City of New Castle, 96 Pa.Super. 251, 253; Bailey v. Oil City et al., 305 Pa. 325, 328, 157 A. 486, 80 A.L.R. 1148; Kohler et ux. v. Penn Township, 305 Pa. 330, 332, 157 A. 681; Beebe et al v. Philadelphia, 312 Pa. 214, 167 A. 570. Snow and ice upon a pavement create merely transient danger and the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove it when it is in a dangerous condition. See Philadelphia v. Bergdoll, 252 Pa. 545, 551, 97 A. 736, Ann. Cas.1918C, 1141; Goodman v. Corn Exchange National Bank & Trust Co. et al., supra. There is no liability created by a general slippery condition on sidewalks. It must appear that there were dangerous conditions due to ridges or elevations which were allowed to remain for an unreasonable length of time, or were created by defendant's antecedent negligence.' See also Ross et al. v. Pennsylvania R. Co., 355 Pa. 119, 121, 49 A.2d 370; Bowser et ux. v. Kuhn et ux., 160 Pa.Super. 31, 33, 49 A.2d 852.

Where a property owner is charged with negligence in permitting the accumulation of snow or ice on his sidewalk, the proof necessary to sustain such a charge has been clearly defined by our decisional law. It is encumbent upon a plaintiff in such situation to prove: (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Absent proof of all such facts, plaintiff has no basis for recovery. See Miller v. City Ice & Fuel Co., 363 Pa. 182, 184, 69 A.2d 140; Milburn v. Knights of Columbus Home Association, 167 Pa.Super. 509, 511, 76 A.2d 466.

Moreover, the burden is upon a plaintiff to prove not only that there was an accumulation of snow and ice on the sidewalk but that such accumulation, whether in the form of ridges or other...