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Kaplan v. Exxon Corp.

September 25, 1997

AARON KAPLAN; JUDITH KAPLAN

v.

EXXON CORPORATION

v.

JAMES J. ANDERSON CONSTRUCTION CO., INC.; JAMES D. MORRISSEY, INC., THIRD PARTY DEFENDANTS

JUDITH KAPLAN AND AARON KAPLAN, APPELLANTS AT NO. 96-1495

EXXON CORPORATION, APPELLANT AT NO. 96-1519



On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civil Action No. 95-cv-01942)

Before: BECKER and SCIRICA, Circuit Judges and SCHWARZER, District Judge *fn*

SCIRICA, Circuit Judge.

Filed September 25, 1997

(Filed September 25, 1997)

OPINION OF THE COURT

In this slip and fall case alleging negligence for failing to clear snow and ice from a sidewalk, the district court granted summary judgment to defendants, holding plaintiff assumed the risk of injury. Plaintiff appeals. We will reverse and remand.

I.

On March 13, 1993, Philadelphia was hit with a major snow storm. Levick Street in Northeast Philadelphia was plowed, creating mounds of snow along the border of the street and sidewalk that remained for days. On the morning of March 22, 1993, plaintiff Judith Kaplan (age 30) and three others were waiting at a bus stop on the Levick Street sidewalk, near the intersection with Oxford Avenue, in order to catch SEPTA's route 26 bus. As the bus pulled up to its designated stop, a snow mound approximately three to four feet high stood between the passengers and the bus. It appears the snow mound began on the sidewalk and extended two or three feet into the street.

The passengers decided to climb the mound to board the bus. A 63 year old woman boarded with obvious difficulty, being helped by two men to traverse the slope. After the older woman successfully negotiated the snow mound, one of the men turned to warn Kaplan that the mound was "icy." Kaplan tried to climb the mound, but when she reached the top of the slope she slipped and fell and broke her tibia and fibula.

There was another route to the bus, although it was longer and involved walking in the street. The snow mound extended along the street, but there was a gap next to a fire hydrant located less than a block away. Much of the sidewalk was clear of snow and ice. Therefore, the snow mound could have been avoided by walking a distance along the sidewalk to the fire hydrant, entering Levick street at that point, and then walking back up the street to the bus.

Kaplan filed this personal injury suit in the Court of Common Pleas for Philadelphia County against defendant Exxon Corporation, which owns the property adjacent to the sidewalk where she fell. She alleges her injuries were caused by Exxon's negligent failure to keep the sidewalk free of ice and snow. Kaplan's husband also sued for loss of consortium. Exxon removed the case to federal court and joined as third party defendants James J. Anderson Construction Co., Inc. and James D. Morrissey, Inc., allegedly the owners and operators of the snow plows that plowed Levick Street.

Exxon filed for summary judgment on two grounds: (i) that Kaplan assumed the risk of walking across the snow mound; and (ii) that Kaplan slipped on the street, not the sidewalk. The district court granted Exxon's motion on the first ground, finding Kaplan voluntarily confronted a known and obvious danger when she climbed the mound of ice and snow. The court denied Exxon's motion on the second ground, finding an issue of fact on the location of the snow mound. The district court then granted summary judgment in favor of the third-party defendants "upon ...


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