Pittsburgh partner Miles A. Kirshner represented the property owner defendant in Ziacik v. Connocchia, which arose from a trip and fall on an uneven residential sidewalk. Plaintiff acknowledged that the condition in question was open and apparent and seen by her prior to her fall. The trial court held that the plaintiff pedestrian was a licensee on the defendant’s premises, and therefore applied Restatement (Second) of Torts §342 in granting summary judgment to the defendant. The court focused on the difference between the duties owed to a licensee and an invitee, and decided this case because of the absence of proof that the alleged defect was latent.
Plaintiff filed an appeal to the Superior Court of Pennsylvania contending both an error of law in application of §342, and that “modern concepts of comparative negligence and assumption of the risk” call for a change in Pennsylvania law that would make the property owner a virtual guarantor with respect to injuries that might occur on her premises. In a Memorandum issued March 28, 2007, the Superior Court affirmed summary judgment, finding the application of §342 to have been proper, and refusing to change the law as demanded by the plaintiff/appellant. Superior Court of No. 918 WDA 2006 (non-precedential).