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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHRISINE WAGNER and ROBERT : Civil Action No. 4:14-CV-00576

WAGNER, her husband, :

:

:

Plaintiffs, : (Judge Brann)

:

v. :

:

H.H. KNOEBEL SONS, INC. :

ET AL., :

:

Defendants. :

MEMORANDUM

February 17, 2016

Pending before this Court is a motion for summary judgment filed by 

Defendants H.H. Knoebel Sons, Inc., Knoebel Realty L.P., and Knoebel Realty 

Managers, LLC (hereinafter collectively “Defendants”), which seeks to dismiss all 

claims of a complaint filed by Plaintiffs Christine and Robert Wagner (collectively 

“the Wagners”). The matter has been fully briefed and is now ripe for disposition. 

In accordance with the following reasoning, Defendants’ motion for summary 

judgment is denied. 

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I. BACKGROUND

The Wagners’ complaint stems from a family visit to Knoebels Amusement 

Resort, Elysburg, Northumberland County, Pennsylvania (hereinafter “the Park”).

1

The Wagners, along with their three grandchildren, visited the Park on June 27, 

2012.2 While Ms. Wagner was walking on a path located between the Go-Karts 

and the Fandango rides, she suffered a fall after tripping over a tree root on the 

path.3 As a result, Ms. Wagner sustained a right knee sprain with bone contusion, 

right knee joint effusion, bone edema of the anterolateral tibial plateau of the right 

knee, aggravation of a pre-existing asymptomatic arthritic condition of the right 

knee, a laceration, cellulitis, and infection of the laceration to the right knee, and 

various other abrasions to her arms and left hand.4The instant litigation ensued. A 

motion for summary judgment was duly filed, timely briefed, and is now ripe for 

disposition.

II. LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.”5 A fact is “material” where it “might affect the outcome of the suit 

 

1 ECF No. 1 ¶ 14.

2

Id. at ¶ 14, 15.

3

Id. at 15.

4

Id. at 1 ¶ 22.

5

Fed. R. Civ. P. 56(a). 

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under the governing law.”6 A dispute is “genuine” where “the evidence is such 

that a reasonable jury,” giving credence to the evidence favoring the nonmovant 

and making all inferences in the nonmovant’s favor, “could return a verdict for the 

nonmoving party.”7

The burden of establishing the nonexistence of a “genuine issue” is on the 

party moving for summary judgment.8The moving party may satisfy this burden 

by either (i) submitting affirmative evidence that negates an essential element of 

the nonmoving party’s claim; or (ii) demonstrating to the Court that the nonmoving 

party’s evidence is insufficient to establish an essential element of the nonmoving 

party’s case.9 

Where the moving party’s motion is properly supported, the nonmoving 

party, to avoid summary judgment in his opponent’s favor, must answer by setting 

forth “genuine factual issues that properly can be resolved only by a finder of fact 

because they may reasonably be resolved in favor of either party.”10 For movants 

and nonmovants alike, the assertion “that a fact cannot be or is genuinely disputed 

must” be supported by “materials in the record” that go beyond mere allegations, 

or by “showing that the materials cited do not establish the absence or presence of 

 

6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

7

Id.

8

In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) 

(Brennan, J., dissenting)).

9

Id. at 331. 

10 Anderson, 477 U.S. at 250. 

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a genuine dispute, or that an adverse party cannot produce admissible evidence to 

support the fact.”11 

“When opposing summary judgment, the non-movant may not rest upon 

mere allegations, but rather must ‘identify those facts of record which would 

contradict the facts identified by the movant.’”12 Furthermore, “[i]f a party fails to 

properly support an assertion of fact or fails to properly address another party’s 

assertion of fact as required by Rule 56(c), the court may . . . consider the fact 

undisputed for purposes of the motion.”13 

In deciding the merits of a party’s motion for summary judgment, the 

Court’s role is not to evaluate the evidence and decide the truth of the matter, but 

to determine whether there is a genuine issue for trial.14 Credibility determinations 

are the province of the factfinder, not the district court.15 Although the Court may 

consider any materials in the record, it need only consider those materials cited.16

III. DISCUSSION

The Wagners’ complaint alleges two counts, one for negligence and one for 

loss of consortium. They claim that Defendants breached their duty of care to Ms. 

Wagner, a business invitee, by failing to remove the protruding tree root or 

 

11 Fed. R. Civ. P. 56(c)(1); see also Anderson, 477 U.S. at 248–50.

12 Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003).

13 Fed. R. Civ. P. 56(e)(2).

14 Anderson, 477 U.S. at 249.

15 BWM, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

16 Fed. R. Civ. P. 56(c)(3).

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otherwise maintain the walkway where she fell in a safe condition or, alternatively,

by failing to give adequate warning of the unsafe condition. 

Defendants, conversely, argue that the Wagners’ complaint should be 

dismissed because Defendants are not liable for harm to invitees caused by an open 

or obvious condition on the land. They also argue that the law does not require an 

owner of premises to maintain sidewalks free of trivial defects. The Court will 

discuss each argument in turn.

A. The Condition Was Not Open and Obvious

To establish a claim for negligence in Pennsylvania, a plaintiff must 

establish 

(1) a duty or obligation recognized by the law, requiring the actor to 

conform to a certain standard of conduct for the protection of others 

against unreasonable risks; (2) a failure to conform to the standard 

required; (3) a causal connection between the conduct and the 

resulting injury; and (4) actual loss or damage resulting in harm to the 

interests of another.17

In premises liability cases, the applicable standard of care depends on 

whether the injured plaintiff is categorized as an invitee, a licensee, or trespasser 

on the property where he was injured.18 An invitee is either a public invitee, a 

person invited to enter as a member of the public for a purpose for which the land 

 

17 Vanchure v. Wegmans Food Markets, Inc., 2014 WL 1746844, *4 (M.D. Pa. May 1, 2014) (Caputo, J.) (citing 

Nw. Mut. Life Ins. Co. v. Babayan, 430 F.3d 121, 139 (3d Cir. 2005)).

18 Vanchure, 2014 WL 1746844 at *4 (citing Davies v. McDowell Nat'l Bank, 180 A.2d 21 (1962)).

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is held open to the public, or a business visitor, a person invited to enter for

business dealings with the possessor of the land.19A possessor of land generally has 

the duty to protect an invitee from foreseeable harm if he 1) knows, or would know 

if he exercised reasonable care, of a condition that involves an unreasonable risk of 

harm, 2) expects that the invitee will not discover or realize the danger or will fail 

to protect themselves against it, and 3) fails to exercise reasonable care to protect 

the invitee against the danger.20 Accordingly, a possessor of land will not be liable 

for harm caused by conditions he reasonably believes would be obvious to and 

discovered by the invitee.21

A danger is “obvious” when “both the condition and the risk are apparent to 

and would be recognized by a reasonable man, in the position of the visitor, 

exercising normal perception, intelligence, and judgment.”22 Whether a danger is 

obvious is usually a question of fact for a jury; where it is clear, however, that 

reasonable minds could not differ as to the conclusion, the question may be 

decided by the court.23

Defendants have adduced three cases in support of their contention that the 

protruding root was an open and obvious condition. First, they cite Villano v. 

 

19 Restatement (Second) of Torts § 332.

20 Carrander v. Fitterer, 469 A.2d 120, 123 (Pa. 1983).

21 Id. (citing Atkins v. Urban Redevelopment Auth. of Pittsburgh, 414 A.2d 100, 104 (Pa. 1980)).

22 Id. (citing Restatement (Second) of Torts § 343A cmt. b).

23 Id. (citing Restatement (Second) of Torts § 343A cmt. d.).

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Security Savings Association,

24 a case in which the plaintiff tripped and fell as he 

was walking up stairs to enter the defendant bank. The plaintiff’s view was 

partially obstructed by a column and the plaintiff was apparently distracted by a 

woman and failed to notice that the steps were uneven.25 The court held that the 

step was an obvious and known condition on the land.26

Defendants also cite Harbison v. JPS Getty, Inc.27 and Orlowski v. Magg’s

Inc.,

28 unpublished cases from the Courts of Common Pleas of Lancaster and 

Beaver Counties, respectively, in which plaintiffs were denied relief after 

sustaining injuries from tripping on steps. Both courts generally held that the steps 

were an obvious condition and that plaintiffs would have seen them had they been 

paying attention.

The Wagners, conversely, cite Lauffer v. Sheetz, Inc.,

29 contending that other 

Pennsylvania courts have found that the obviousness of a potential hazard is a 

question of fact rendering summary judgment inappropriate. The plaintiff in 

Lauffer suffered serious injuries to his testicles and scrotum when, after holding the 

door of an entering patron, he turned to proceed to exit the defendant’s gas station 

minimart and collided with a 30 inch pipe batten.

30 Like the plaintiff in Lauffer, 

 

24 407 A.2d 440, 441 (Pa. Super. Ct. 1979).

25 Id.

26 Id. at 443.

27 (PICS 12-0074) (Lancaster Cnty. C.P. Dec. 22, 2011).

28 (PICS 09-1822)(Beaver Cnty. C.P. Oct. 27, 2009).

29 2000 WL 33158596 (Westmoreland Cnty. C.P. July 10, 2000).

30 Id.

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who was distracted by holding the door open for a fellow patron, the Wagners

argue that Defendants should have anticipated that their patrons could be distracted 

by the amusement park attractions or watching cavorting children, making hazards 

more difficult to observe. 

The cases cited by the parties are all easily distinguishable from the case at 

hand. Defendants’ cases all involve stairs and the Wagners’ case involves a lengthy

pipe batten. Other cases with facts more synonymous to the facts in the instant 

matter provide more helpful guidance. 

For example, the Superior Court of Pennsylvania in Donlin v. J.J. Newberry 

Co.31 denied summary judgment when the plaintiff sustained injuries after tripping 

on a metal strip protruding from a sidewalk outside of a shopping mall.

Alternatively, the plaintiff in Ehrlich v. Cruz32 sustained injuries when he tripped 

on a crack in a sidewalk. The Superior Court held that the crack in the sidewalk 

was open and obvious because the plaintiff was very familiar with the sidewalk 

and was further aware that a man in a wheelchair had previously fallen and that the 

plaintiff’s sister-in-law had twisted her ankle in the same area of the sidewalk.

In the case at bar, Defendants argue that Ms. Wagner testified that she was 

“familiar” with the area because she had “been there in the past.”33 That said, Ms. 

Wagner was likely not as familiar with the area of the Park where the tree root was 

 

31 466 A.2d 174, 176 (Pa. Super. Ct. 1983).

32 2013 WL 11251560 (Pa. Super. Ct. Oct. 7, 2013). 

33 ECF No. 27 at 8.

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protruding as was the plaintiff in Cruz, who resided in apartments near the 

sidewalk where the injury occurred.

The Wagners also argue that Defendants knew and anticipated that the 

protruding root could be dangerous to patrons frequenting the Park because a Park 

employee testified that Defendants identified several other protruding tree roots in 

the Park and painted them yellow “because [they are] a potential trip-and-fall 

hazard.”34 They argue that Defendants would not have painted protruding roots 

yellow to notify patrons of the danger if they were open and obvious.

This Court agrees that whether the protruding tree root was an open and 

obvious condition is an issue of fact for the jury. The Wagners produced several 

photographs of the root which show that the root is grey in color, like the ground 

around it.35 Furthermore, Defendants actions in painting other protruding roots 

yellow for easy identification suggests that the roots may be not be as open and 

obvious as Defendants claim.36

 

34 ECF No. 32 at 9 (citing ECF No. 31-1 at 44, ¶8-9).

35 See ECF No. 31 at Exhibits 2-9.

36 Defendants argue that evidence that they painted other tree roots yellow to prevent accidents is “similar to a 

subsequent remedial measure or dissimilar prior accidents type argument.” ECF No. 37 at 3. Rule 407 of the Federal 

Rules of Evidence provides that “[w]hen measures are taken that would have made an earlier injury or harm less 

likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable, conduct, . . . or 

a need for a warning or instruction . . . But the court may admit this evidence for another purpose. . .” Fed. R. Evi. 

407. In the instant matter, had Defendants painted the root in question yellow after Ms. Wagner’s accident, that 

measure would not be admissible to prove negligence or a need for a warning. Defendants’ act of painting other 

similar tree roots yellow, however, can be admissible to prove that Defendants had notice that protruding tree roots 

posed a hazard to Park patrons.

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B. Trivial Defect

A possessor of land has a duty to keep his sidewalks in a “reasonably safe 

condition for travel by the public.”37 Whether the duty has been complied with is 

determined on a “case-by-case basis by looking at all of the surrounding 

circumstances.”38 A defect may be so trivial that courts are bound, as a matter of 

law, to find no negligence in allowing the trivial defect to exist.39

Property owners, however, are not responsible for trivial sidewalk defects.

40

“‘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.”

41 “Thus, if the defect is not obviously trivial, the question of negligence must 

be submitted to a jury.”42

Defendants cite to four cases in which defects ranging from one-and-a-half 

to four inches were found to be trivial. The Wagners similarly cite eleven cases in 

which the court found defects that were not clearly trivial. Some of the defects in 

the Wagners’ cited cases were as small as 7/16 to 3/4 of an inch or one inch.

43

 

 

37 Mull v. Ickes, 994 A.2d 1137, 1140 (Pa. Super. Ct. 2010) (citing Peair v. Home Ass'n of Enola Legion No. 

751, A.2d 665, 667 (Pa. Super. Ct. 1981)).

38 Mull, 994 A.2d at 1140 (citing McGlinn v. City of Philadelphia, 186 A. 747, 748 (Pa. 1936)).

39 Mull, 994 A.2d at 1140 (citing Davis v. Potter, 17 A.2d 338 (1941); Bosack v. Pittsburgh Railways Co., 189 

A.2d 877 (1963); Harrison v. City of Pittsburgh, 44 A.2d 273, 274 (1945)). 

40 Mull, 994 A.2d at 1140.

41 Id. (quoting Breskin v. 535 Fifth Ave., 113 A.2d 316, 318 (1955)).

42 Id. (citing Breskin, 113 A.2d at 318).

43 See ECF No. 32 at 13 (citing Ozer v. Metromedia Restaurant Group, Steak & Ale of Pennsylvania, Inc., 2005 WL 

525400 at *8 (E.D. Pa. March 7, 2005); Melchiorre v. Lords Valley Xtra Mart, 13 A.3d 973 (Pa. Super. Ct. 2010)).

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In the matter at hand, even the size of the defect is disputed. Defendants 

claim the tree root is approximately one inch at its highest point and “a few inches 

wide.” The Wagners, alternatively, claim that the root is 1.75 inches high and 

thirty-one inches long. Defendants argue that the Wagners’ measurements are 

misleading because the photographs show them measuring the height of the root on 

the opposite direction from which Ms. Wagner tripped. Furthermore, as 

Defendants point out, Ms. Wagner was unable to state which part of the tree root 

actually caused her fall during her deposition.

44

Defendants also assert that the root is located “near the edge next to a fence 

and a root of the tree in an area not typically traversed.”

45 The Wagners claim that 

the root is “in the middle of [the] walkway where the blacktopped area ends.”46

The actual location of the tree root remains unclear to the Court despite a review of 

submitted photographs.

There are clearly issues of fact in this case that must be submitted to a jury. 

The height of the protruding tree root at the point Ms. Wagner caught her foot,

whether the tree root is in the middle of the walkway or in an area not typically 

traversed, and whether, looking at all the evidence, the tree root was a trivial defect 

are all issues of fact that this Court cannot decide as a matter of law at this point in 

the litigation.

 

44 ECF No. 

45 ECF No. 27 at 10.

46 ECF No. 32 at 14.

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IV. CONCLUSION

Consequently, and in accordance with the foregoing reasoning, Defendants’

motion for summary judgment is denied.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

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