February 1, 2004 - Condo Association Not Liable For Slip/Fall On Entry Porch In Limited Common Area

Stroudsburg - A Monroe County judge has dismissed a resident's slip-and-fall case against a condominium association, finding that the entry porch to the plaintiffs' condo unit is a limited common area and, as such, outside the control of condo management. But the court denied summary judgment to a snow-removal company responsible for placing cinders on the plaintiffs' entry porch, which allegedly caused the slip and fall.

In Kalpouzos v. Walnut Grove Condominium Association Inc., PICS Case No. 04-0101 [C.P. Monroe Nov. 12, 2003] Worthington, J. [18 pages], Common Pleas Judge Margherita Patti Worthington said that under the Walnut Grove Condominium Declaration, a limited common element is outside the control of the condo association. And even though the term "entry porch" is not defined as a "limited common element" in the condo declaration, it is cognizable as such under the Pennsylvania Condominium Act, she said.

"Because the Act includes the term 'porches' within its definition of limited common element, we find the entry porch where Plaintiff slipped and fell is a limited common element pursuant to Section 3202[4] of the Act," Worthington wrote. "Since the entry porch meets the requirements of Section 3202[4], it is not necessary that the Declaration specify that it is a limited common element assigned to unit 408."

The judge also rejected the plaintiffs' argument that the absence of the term "entry porch" from the condo declaration indicated Walnut Grove's wish to exempt out of the Condominium Act's definition of limited common element. The plaintiffs based this reasoning on Section 3103 of the act, which said the statute's definition of limited common element applies "unless specifically provided otherwise or unless the context clearly indicates otherwise."

Worthington said the use of the word "or" in this exception to the definition "makes it clear that the Act's definition of limited common element is designed to supplement what is contained in condominium declarations."

Worthington also disagreed with the plaintiffs' argument that Section 3.5 of the condo declaration is a definitional provision.

"Section 3.5 is clearly designed to allocate certain limited common elements and is not intended to be a definitional provision," Worthington said.

Turf Masters, the snow removal company, sought summary judgment based on a theory of the injured plaintiff's contributory negligence and the doctrine of assumption of the risk.

However, Worthington said, under the Comparative Negligence Act, a court finding the plaintiff contributorily negligent may only enter a compulsory nonsuit after the plaintiffs rest their case, but cannot enter summary judgment on that basis.

On the assumption of the risk issue, Worthington denied summary judgment, saying that the court was not prepared to say that a plaintiff knowingly assumed a risk by stepping out onto an entry porch on which cinders had been placed to reduce the dangers of ice.

The injured plaintiff, Cynthia Kalpouzos, claimed that she slipped on a cinder when she stepped outside her front door, causing her fall. And Worthington said the court cannot at this time bar her from seeking recovery.

"If anything it would seem that the presence of cinders should actually reduce the risk since they are designed to combat ice and snow accumulations," Worthington wrote. "Additionally, Turf cannot seriously argue that the presence of cinders on Plaintiffs' entry porch constitutes a dangerous condition, since they would be admitting that they intentionally created the dangerous condition."

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