J-S13027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARK SUPIK IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RICHARD R. LINGENFELTER T/D/B/A
SPIRIT OF THE NORTH CAMPGROUND
Appellee No. 1498 WDA 2014
Appeal from the Order August 11, 2014
In the Court of Common Pleas of Jefferson County
Civil Division at No(s): 68 C.D. 2012
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 07, 2015
Appellant, Mark Supik, appeals from the August 11, 2014 order
granting the motion for summary judgment filed by Appellee, Richard R.
Lingenfelter t/d/b/a Spirit of the North Campground (Lingenfelter). After
careful review, we affirm.
We summarize the relevant factual and procedural background of this
case as follows. Appellant leased a campsite lot at Spirit of the North
Campground (the Campground) from Lingenfelter. Appellant’s Complaint,
1/19/12, at 3, ¶ 3. At approximately 8:00 a.m. on the morning of January
23, 2010, Appellant left his trailer at the Campground to use the public
facilities. Id. at 4, ¶ 7, 8. The road toward the facilities was covered in
snow and ice. Id. at 4, ¶ 10. Appellant slipped and fell three times and
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claimed injuries to his head, neck, back, and wrist. Id. at 4, ¶ 13;
Lingenfelter’s Motion for Summary Judgment, 3/4/14, at Exhibit A (Answer
to Lingenfelter’s First Set of Interrogatories at 3-4, ¶ 19).
Almost two years later on January 19, 2012, Appellant filed a
complaint alleging negligence against Lingenfelter. Lingenfelter filed an
answer and new matter on February 23, 2012. On March 4, 2014, after
discovery had concluded, Lingenfelter filed a motion for summary
judgment.1 Appellant filed a response in opposition to Lingenfelter’s motion
for summary judgment on April 3, 2014 to which Lingenfelter responded on
April 10, 2014. The trial court conducted a hearing on the motion on July
21, 2014 and granted Lingenfelter’s motion for summary judgment on
August 11, 2014. Appellant filed a timely notice of appeal on September 10,
2014.2
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1
We note Lingenfelter filed his notice of service of discovery on March 1,
2012. Appellant failed to respond. Lingenfelter then filed a motion to
compel on May 22, 2012, which the trial court granted on the same day.
Appellant failed to comply with the order, and Lingenfelter filed a motion for
sanctions on July 12, 2012. Thereafter, Appellant responded to the
discovery request, and Lingenfelter withdrew his motion for sanctions on
August 31, 2012. A deposition of Appellant was ultimately conducted on
October 9, 2012. The docket does not reflect that Appellant sought any
discovery from Lingenfelter in this matter.
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. In its Rule 1925 opinion, the trial court relies on
its analysis in its August 11, 2014 opinion granting summary judgment.
Trial Court Opinion, 10/2/14.
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We first observe the required “statement of the question involved”
section is conspicuously absent from Appellant’s brief. See Appellant’s Brief
at 1-11; Pa.R.A.P. 2111(4) (requiring a “[s]tatement of the questions
involved” section to be included in each appellant’s brief); Pa.R.A.P. 2116
(requiring, in relevant part, “[t]he statement of the questions involved must
state concisely the issued to be resolved, expressed in the terms and
circumstances of the case but without unnecessary detail[]”). Despite this
blatant omission and noncompliance with our rules of appellate procedure,
Appellant’s “summary of the argument” section informs this Court that
Appellant challenges the entry of summary judgment because Appellant
believes “[t]he trial court ignored and discounted evidence that created an
issue of material fact.”3 Appellant’s Brief at 5. While we note, with strong
disapproval, this glaring defect in Appellant’s brief, it does not preclude
meaningful appellate review, so we proceed to examine Appellant’s claim.
See Green v. Green, 69 A.3d 282, 285 n. 2 (Pa. Super. 2013) (observing if
an appellant’s nonconformance with the rules of appellate procedure does
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3
Appellant’s Rule 1925(b) statement preserved challenges to the trial
court’s grant of summary judgment. Specifically, Appellant averred that the
trial court misapplied the summary judgment standard and the hills and
ridges doctrine and erred in granting the motion for summary judgment
against “the weight and sufficiency of the evidence presented at the
hearing.” Appellant’s Rule 1925(b) Statement, 9/30/2014.
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not hinder review of the issues or prejudice the parties, this Court will
address the merits of the appeal).4
Our standard of review of an order granting summary judgment is well
settled. Our task is “to determine whether the trial court abused its
discretion or committed an error of law[,] and our scope of review is
plenary.” Rodriguez v. Kravco Simon Co.,--- A.3d ---, 2015 WL 720553,
at *1 (Pa. Super. 2015) (citation omitted).
In evaluating the trial court’s decision to enter
summary judgment, we focus on the legal standard
articulated in the summary judgment rule. Pa.R.C.P.
1035.2. The rule states that where there is no
genuine issue of material fact and the moving party
is entitled to relief as a matter of law, summary
judgment may be entered. When the non-moving
party bears the burden of proof on an issue, he may
not merely rely on his pleadings or answers in order
to survive summary judgment. Failure of a non-
moving party to adduce sufficient evidence on an
issue essential to his case and on which [he] bears
the burden of proof … establishes the entitlement of
the moving party to judgment as a matter of law.
Lastly, we will review 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.
Cigna Corp. v. Executive Risk Indem., Inc., --- A.3d ---, 2015 WL
836933, at *3 (Pa. Super. 2015) (citation omitted). “[O]ur responsibility as
an appellate court is to determine whether the record either establishes that
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4
We note Lingenfelter responded to the substance of Appellant’s argument
and did not contend this defect in Appellant’s brief resulted in prejudice.
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the material facts are undisputed or contains insufficient evidence of facts to
make out a prima facie cause of action, such that there is no issue to be
decided by the fact-finder.” Reinoso v. Heritage Warminster SPE LLC, --
- A.3d ---, 2015 WL 161934 at *3 (en banc) (citation omitted).
Consequently, if the record contains evidence that would allow a fact-finder
to return a verdict in favor of the non-movant, then summary judgment is
not proper. Id.
Appellant challenges the trial court’s finding that no genuine issue of
material fact existed. Appellant’s Brief at 8. Specifically, the trial court
found Appellant’s falls resulted from the generally icy conditions on the flat
surfaces at the Campground. Trial Court Opinion, 8/11/14, at 4. Therefore,
the trial court reasoned, the hills and ridges doctrine protected Lingenfelter
from liability because Appellant was unable to establish his falls were a
result of an unreasonable accumulation of snow or ice in ridges or
elevations. Id. Appellant contends that the trial court’s application of the
hills and ridges doctrine is inapplicable and that issues of fact remain.
Appellant’s Brief at 8. Appellant advances the following argument.
The existence of the photographs [taken at
Campground] depicting the character of the ridges
and calling into question whether the hills and ridges
doctrine applies, as well as testimony from
[A]ppellant concerning the cause of his slip, when
taken in the light most favorable to the non-moving
party[,] create several issues of material fact that
must be left to the jury.
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Id. Lingenfelter responds by asserting that, “[Appellant’s] evidence of
generally slippery conditions and icy roadways covered by fresh snow are
not sufficient to establish liability[.]” Lingenfelter’s Brief at 8. Further,
“[t]here is nothing of record by which it can be inferred that there was
anything more than a natural accumulation of snow/ice on the road and
steps.” Id. at 11.
We now turn to an examination of the hills and ridges doctrine to
determine if the trial court erred in applying it to the facts of the instant
case. The hills and ridges doctrine is a “long standing and well entrenched
legal principle ….” Biernacki v. Presque Isle Condominiums Unit
Owners Ass’n, Inc., 828 A.2d 1114, 1116 (Pa. Super. 2003) (internal
quotation marks and citation omitted).
[T]he doctrine of hills and ridges 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 the 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 dangerous condition.
Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa. Super. 2006)
(citation omitted). Further, in order to recover for a fall on an ice or snow
covered surface, a plaintiff must demonstrate the following.
(1) [T]hat the snow and ice had accumulated on the
sidewalk in ridges or elevations of such size and
character as to unreasonably obstruct travel and
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constitute a danger to pedestrians traveling thereon;
(2) that the property owner had notice, either actual
or constructive, of the existence of such condition;
(3) that it was the dangerous accumulation of snow
and ice which caused the plaintiff to fall.
Biernacki, supra at 1117 (citation omitted).
Instantly, the trial court explained its rationale in light of the evidence
of record as follows.
In his answers to interrogatories and
[deposition] testimony, [Appellant] described
generally icy conditions across the hard surfaces at
the Campground. He also noted that all the areas
were snow-covered and that more sleet and snow
had fallen the night before his accident. Nowhere
did he describe ridges and elevations of snow and
ice, however, nor did anyone else on his behalf.
The photographs do not suggest that
Lingenfelter allowed ice and snow to unreasonably
accumulate in ridges or elevations, either. As Photos
One through Three depict, the buildup [of snow]
near where [Appellant] fell cannot reasonably be
characterized as anything more than mild, and Photo
Four does not cast doubt on that characterization.
Rather, it was shot from a different angle from which
relative elevations could not be determined, whereas
the other photographs plainly depicted that the
vertical difference between the road surface and the
tops of the snow banks was minimal. No reasonable
jury could conclude otherwise.
Assuming, however, that a reasonable jury
could agree that the photographs depicted
unacceptable ridges or elevations, Lingenfelter would
still be entitled to summary judgment based on
[Appellant’s] failure to produce evidence tending to
show that they were the cause of his fall. Most
clearly describing the mechanics of it, he specified
only that he “slipped and fell on the steps while
dislodging a chunk of ice from the restrooms,” and
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that he “stopped there [at the bottom of the steps
…], and there was a piece of ice right there,
probably.” The latter statement, insofar as it
described causation, was merely conjecture, and
neither lent itself to the reasonable inference that an
unreasonable accumulation of ice and snow at the
bottom of the steps precipitated his fall.
Because [Appellant] is unable as a matter of
law to establish liability against Lingenfelter, [],
[Lingenfelter] is entitled to summary judgment in
this case.
Trial Court Opinion, 8/11/14, at 4 (citations omitted).
We agree with the trial court that Appellant failed to demonstrate that
the snow and ice had accumulated in ridges or elevations such that it
unreasonably obstructed travel and constituted a danger to pedestrians, and
Appellant failed to produce evidence that a dangerous accumulation of snow
or ice caused him to fall. See Biernacki, supra.
In response to Lingenfelter’s interrogatories, Appellant recounts the
events leading to his falls.
[Appellant], on the morning of January 23, 2010[,]
was traveling from his campsite to the facility
designated by the [C]ampground as the restroom
area. To use the restrooms, [Appellant] had to cross
open land and a roadway, each of which had fresh
snow on top of old ice. [Appellant] slipped and fell
on the ice going to the restroom, injuring his elbow,
back and head.
…
On the way out of the restroom facility, and while
exercising care on the snow and ice covered steps,
[Appellant] slipped and fell on the steps while
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dislodging a chunk of ice from the roof of the
restrooms. …
Lingenfelter’s Motion for Summary Judgment, 3/4/14, at Exhibit A (Answer
to Lingenfelter’s First Set of Interrogatories at 3-4, ¶ 19).5 In response to
an inquiry about the weather conditions at the time of the incident, Appellant
reported there were “[s]cattered snow showers, though not at the time of
injury. Some blowing snow. Lighting was daylight during partly cloudy
day.” Id. at 4, ¶ 21. Further, Appellant testified regarding his falls at his
deposition as follows.
[Attorney for Lingenfelter]:
Q. What were the weather conditions like when you
drove up to the [C]ampground prior to your fall?
[Appellant]:
A. There was a little snow; snowing a little bit.
Q. And tell me about what you remember of the
weather from the time that you got to your trailer
until the time of your fall.
A. It was snowing lightly, and it was icy and that,
and that’s it. It was just snowing lightly.
Q. You said it was icy?
A. I said snowing lightly, and underneath the snow
there was ice.
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5
Appellant’s answer to Lingenfelter’s first set of interrogatories does not
contain pagination. For ease of reference, we have assigned each page a
corresponding page number.
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Q. And was there ice when you got to the
[C]ampground?
A. Huh-uh (no). It was cold.
Q. So how long were you at the trailer prior to your
fall?
A. A day, a day before or so.
…
Q. So tell me about your trip from your cabin,
across the turf, to the time you fell.
A. Okay. Everything was all good in the hood till I
got to the road to go to the trailer, and it was all ice.
I was walking slow, and I fell twice before I got
there. I had to crawl. And then I went up in there,
and then coming down, I slipped, and then I got
hurt.
Id. at Exhibit B (N.T., 10/9/12, at 25-26, 31).
The record clearly demonstrates that conditions at the Campground
were icy because of recent snowfall and that Appellant’s falls occurred while
walking on flat, snow and ice covered surfaces.6 While the photographs
relied on by Appellant suggest a slight buildup of snow in the area where
Appellant contends he fell for the third time, nowhere in his complaint
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6
To the extent Appellant attempts to argue the motion for summary
judgment was improper because discovery had not concluded, we find this
claim meritless and unsupported by the record. Appellant’s Brief at 8. As
noted, Lingenfelter sought discovery several times from Appellant before
Appellant complied with the orders of the trial court. Moreover, at no time
from the filing of the complaint onward did Appellant seek any formal
discovery from Lingenfelter. See Appellant’s Brief at 8.
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against Lingenfelter, his answer to interrogatories, or in his deposition
testimony, does he attribute his fall to an unreasonable accumulation of ice
or snow in ridges or elevations obstructing his travel. See id. at Exhibit B
(Photographs One through Four); see generally Appellant’s Complaint,
1/19/12, 3-6; Lingenfelter’s Motion for Summary Judgment, 3/4/14, at
Exhibit A (Answer to Lingenfelter’s First Set of Interrogatories at 1-5); id. at
Exhibit B (N.T., 10/9/12, at 3-51).7 Rather, Appellant consistently
maintained that the surface of the road and stairs were generally slippery
and icy. Moreover, Appellant unequivocally stated his third fall occurred as
he was coming down the stairs. Lingenfelter’s Motion for Summary
Judgment, 3/4/14, at Exhibit B (N.T., 10/9/12, at 31). A reasonable fact-
finder, therefore, could not conclude any accumulation of snow in the area
surrounding the base of the stairs obstructed his path down the stairs. See
Reinoso, supra; Biernacki, supra. Nor does Appellant contend, at any
time, that his two falls preceding his entry into the facilities, which occurred
on the road, were the result of snow or ice accumulation in ridges or
elevations.
Based on the foregoing and our review of all the evidence of record,
we conclude Appellant has failed to adduce sufficient evidence on an issue
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7
Appellant testified his girlfriend took these photographs of the area right
after the incident occurred. Lingenfelter’s Motion for Summary Judgment,
3/4/14, at Exhibit B (N.T., 10/9/12, at 39).
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essential to his case on which he bore the burden of proof. See Cigna
Corp., supra. In particular, viewing the evidence in the light most
favorable to Appellant, he has failed to adduce evidence that there was an
unreasonable accumulation of ice or snow that unreasonably obstructed his
travel or constituted a danger to pedestrians or that the possible buildup of
snow was the cause of his falls. See id.; see Biernacki, supra.
Accordingly, the trial court did not err in granting summary judgment in
favor of Lingenfelter, and the August 11, 2014 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2015
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Supik, M. v. Lingenfelter, R.
Combined Opinion