J-A04028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT GUENTHER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ZAUCHA FAMILY LIMITED PARTNERS,
Appellee
v.
XTREME SNOW REMOVAL,
Appellee
No. 1025 WDA 2014
Appeal from the Judgment Entered May 23, 2014
In the Court of Common Pleas of Venango County
Civil Division at No(s): 2012-00172
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 1, 2015
Appellant, Robert Guenther, appeals from the judgment entered on
May 23, 2014. We affirm.
The factual background of this case is as follows. Zaucha Family
Limited Partners (“Zaucha”) owns the property in Franklin, Pennsylvania
where the relevant events occurred (“the Property”). Zaucha entered into
an oral contract with Xtreme Snow Removal and Ice Control (“Xtreme”) to
remove snow and ice from the Property. On February 16, 2010, Appellant
traveled to Dr. Donald Smith’s office, which was located on the Property.
Appellant was visiting Dr. Smith for follow-up care for a back and knee injury
* Retired Senior Judge assigned to the Superior Court
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he sustained earlier in the year. The day before the incident in question,
Appellant used a cane because he was unsure of walking on his injured
knee.
The weather conditions in Franklin on that date were not ideal. The
local schools had a two-hour delay because of dangerous road conditions.
Appellant’s testimony compared weather conditions in Franklin to those in
Siberia and his journey to the Property consisted of white-knuckle driving.
When Appellant arrived at the Property it was evident that the parking lot
had recently been plowed. Nonetheless, the parking lot was once again
covered with snow. The Property did not have a sidewalk. Dr. Smith’s office
was accessible via a ramp leading directly from the parking lot. Appellant
exited his vehicle and obtained his cane from the back seat of his car. He
proceeded to take baby-steps while steadying himself against his vehicle.
Appellant fell on smooth ice shortly after he quit steadying himself with his
vehicle. Appellant proceeded to stand up and continued to his appointment
with Dr. Smith. Appellant testified that although he did not fall again, the
parking lot was slippery over the remainder of his walk to Dr. Smith’s office.
The procedural history of this case is as follows. Appellant commenced
this action by filing a writ of summons on February 13, 2012. On April 23,
2012, Appellant filed his complaint naming Zaucha as the sole defendant.
On October 25, 2012, Zaucha joined Xtreme as an additional defendant. On
November 21, 2013, Xtreme filed a motion for summary judgment. On
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December 4, 2013, Zaucha filed a motion for summary judgment. On May
23, 2014, the trial court granted Zaucha’s and Xtreme’s motions for
summary judgment. This timely1 appeal followed.2
Appellant presents three issues for our review:
1. Whether the trial court failed to recognize that two viable
exceptions to the [h]ills and [r]idges [d]octrine, an isolated
ice patch and ice from a non-natural condition, created
genuine issues of material fact precluding summary judgment
and requiring determination by a fact finder[?]
2. Whether the trial court erred by concluding that [Appellant]
assumed the risk of slipping on ice, when this conclusion was
contrary to [Appellant]’s unequivocal testimony that he did
not see the ice since it was covered by snow and [was based
on the] trial court’s own factual and credibility determinations
about what contributed to the fall[?]
3. Whether the trial court erred by not holding that the defense
of assumption of risk was abrogated and abolished entirely, or
if not entirely, at least in this case involving multiple
[d]efendants, with the passage of the Comparative
Negligence Act[?]
Appellant’s Brief at 4.3
Appellant challenges the trial court’s grant of summary judgment.
This Court has explained:
Our scope of review of an order granting summary judgment is
plenary. We apply the same standard as the trial court,
1
The 30th day of the appeal period fell on Sunday, June 22, 2014. Sunday,
June 22 is excluded from the computation of time. See 1 Pa.C.S.A. § 1908.
Therefore, Appellant’s appeal filed on Monday, June 23, 2014, is timely.
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
3
We have re-numbered the issues for ease of disposition.
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reviewing all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record in
the light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must be
resolved against the moving party. Only where there is no
genuine issue as to any material fact and it is clear that the
moving party is entitled to a judgment as a matter of law will
summary judgment be entered.
Stein v. Magarity, 102 A.3d 1010, 1013 (Pa. Super. 2014) (internal
alterations and citation omitted).
“A plaintiff cannot survive summary judgment when mere speculation
would be required for the jury to find in plaintiff's favor.” Krauss v. Trane
U.S. Inc., 104 A.3d 556, 568 (Pa. Super. 2014) (citation omitted); see
InfoSAGE, Inc. v. Mellon Ventures, L.P., 896 A.2d 616, 626 (Pa. Super.
2006) (citation omitted) (“It is also well-settled that a court reviewing the
propriety of a summary judgment motion must be mindful that a jury may
not be permitted to reach its verdict on the basis of speculation or
conjecture.”); see also Fitzpatrick v. Natter, 961 A.2d 1229, 1242 (Pa.
2008) (ellipsis omitted) (The jury “may not be permitted to reach its verdict
merely on the basis of speculation or conjecture, but there must be evidence
upon which logically its conclusion may be based.”).
The hills and ridges
doctrine provides that an owner or occupier of land is not liable
for general slippery conditions, for to require that one’s walks be
always free of ice and snow would be to impose an impossible
burden in view of the climatic conditions in this hemisphere.
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
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dangerous condition. In order to recover for a fall on an ice-or
snow-covered sidewalk, a plaintiff must 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; and (3) that it was the
dangerous accumulation of snow and ice which caused the
plaintiff to fall.
Gilligan v. Villanova Univ., 584 A.2d 1005, 1007 (Pa. Super. 1991)
(citations omitted; paragraph break omitted). There are several exceptions
to the hills and ridges doctrine. As relevant to this case, the “doctrine may
be applied only in cases where the snow and ice complained of are the result
of an entirely natural accumulation, following a recent snowfall. . . . [T]he
protection afforded by the doctrine is predicated on the assumption that
these formations are natural phenomena incidental to our climate[.]”
Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa. Super. 2006)
(citations, internal quotations marks, and alterations omitted).
Appellant argues that the hills and ridges doctrine was inapplicable to
this case for two reasons. First, Appellant contends that “there was no
evidence that the entire parking lot was ice covered or that the there was
any sort of community wide ice storm or freezing precipitation falling in the
hours or days preceding the fall.” Appellant’s Brief at 18 (emphasis
removed). Appellant’s argument is phrased in such a manner as to make it
impossible for the hills and ridges doctrine to apply. Under Appellant’s
construction of the hills and ridges doctrine, the entire parking lot would
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have to be covered in ice for the hills and ridges doctrine to apply. The hills
and ridges doctrine, however, applies when snow or icy conditions are
prevalent in the community.
To that end, Appellant’s own testimony indicates that snow and icy
conditions were prevalent throughout the community. Specifically, he
testified that local school districts had a two-hour delay because of
dangerous road conditions. See N.T., 10/31/13, at 43-44. He testified that
the road conditions were like “Siberia.” Id. at 39. He also testified that
after he fell and continued his walk to Dr. Smith’s office, the parking lot was
slippery. Id. at 56. This was because, despite recent plowing,
approximately one and one-half inches of snow had accumulated on the
parking lot. Id. at 48. Appellant does not cite to any portion of the record
to indicate that snow and icy conditions were not generally prevalent in the
community. Instead, the only evidence of record, Appellant’s deposition
testimony, is that the snow and icy conditions were generally prevalent in
the area. Accordingly, the trial court correctly held there was no material
issue of fact regarding this prong of the hills and ridges doctrine.
Appellant next contends that the unnatural condition exception to the
hills and ridges doctrine applies in this case. Specifically, he contends that a
pile of plowed snow melted the weekend before the incident. He theorizes
that runoff from this snow pile then refroze and caused the icy conditions in
the parking lot. Thus, according to Appellant, the icy conditions resulted
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from the melting of the unnatural pile of snow caused by snow plowing.
There is, however, no evidence of record that supports such a contention.
Instead, Appellant’s argument is mere speculation, unsupported by the
record.
At his deposition, Appellant testified as follows:
And I’m guessing that we can I think we had sunny days. And
I’m guessing maybe some snow melted and then that snow
melted and then that snow froze that melted. Then that snow
on top of it accumulated and that had the ice underneath the
snow. That’s my only evaluation of why that was slippery there.
***
And I’m guessing from the melting snow from that pile might
have ran down from that.
N.T., 10/31/13, at 54-55 (emphasis added). A speculative qualifier
preceded every substantive statement in this portion of Appellant’s
deposition. Taken as a whole, it is obvious that Appellant’s theory was mere
speculation. Appellant did not testify that runoff from the snow pile caused
the ice. Appellant likewise did not attach any other evidence to his response
in opposition to the summary judgment motions which raised a factual issue
regarding the unnatural formation of ice. Instead, the only evidence of
record supports the conclusion that the ice was a result of a natural
occurrence. See Beck v. Holly Tree Homeowners Ass'n, 689 F. Supp. 2d
756, 765 (E.D. Pa. 2010), citing Casey v. Singer, 93 A.2d 470, 472 (Pa.
1953) (“[T]he melting and refreezing of snow and ice cover is a natural cycle
associated with temperature change.”). Accordingly, we conclude that the
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trial court properly held that the hills and ridges doctrine applied and that
Appellant did not present any material issues of fact. Therefore, the trial
court properly granted Zaucha and Xtreme summary judgment based on the
hills and ridges doctrine.
As we conclude that the trial court properly granted Zaucha and
Xtreme summary judgment based on the hills and ridges doctrine, we
decline to address Appellant’s other two issues raised on appeal.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2015
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