J-S24031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LISA A. AND KEVIN BARRON IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
ALLIED PROPERTIES, INC. AND
COLONNADE, LLC, AND MAXWELL
TRUCKING & EXCAVATING
Appellees No. 1638 MDA 2015
Appeal from the Order Entered August 24, 2015
In the Court of Common Pleas of Centre County
Civil Division at No(s): 2013-03544
BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 23, 2016
Appellants, Lisa A. Barron and Kevin Barron, appeal from the order
entered in the Centre County Court of Common Pleas, granting summary
judgment in favor of Appellees, Allied Properties, Inc., Colonnade, LLC, and
Maxwell Trucking & Excavating. We affirm.
The relevant facts and procedural history of this case are as follows.
On the afternoon of October 29, 2011, Appellants and their son went to the
Dick’s Sporting Goods store located at the Colonnade shopping center in
State College, Pennsylvania, to purchase a jacket. A snowstorm had
occurred in the area earlier that day. Appellant Mr. Barron drove the
family’s minivan to the curb in front of the store, where Appellant Ms. Barron
and her son exited the vehicle. Appellant Ms. Barron followed her son
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around the minivan onto a snow-covered sidewalk that led to the store
entrance. While walking on the sidewalk, Appellant Ms. Barron slipped and
fell.
Appellants filed a complaint in negligence on September 9, 2013. On
July 20, 2015, Appellees Allied Properties, Inc., and Colonnade, LLC, filed a
motion for summary judgment. Appellee Maxwell Trucking & Excavating
filed a motion for summary judgment on July 21, 2015. The court granted
summary judgment in favor of all Appellees on August 25, 2015. Appellants
filed a timely notice of appeal on September 22, 2015. The court ordered
Appellants to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellants timely complied.
Appellants raise the following issues for our review:
DID THE HONORABLE TRIAL COURT ERR IN FINDING THAT
[APPELLEES] DID NOT OWE A DUTY TO [APPELLANT MS.
BARRON] TO PROTECT FROM A DANGEROUS CONDITION
BECAUSE THE ALLEGED DANGEROUS CONDITION WAS
OBVIOUS AND AS A RESULT [APPELLANT MS. BARRON]
ASSUMED THE RISK OF SAID CONDITION WHEN
TRAVERSING SAME?
DID THE HONORABLE TRIAL COURT ERR IN FINDING THAT
NO ACTUAL EVIDENCE WAS PRESENTED THAT SNOW AND
ICE HAD ACCUMULATED IN RIDGES OR ELEVATIONS AS
TO UNREASONABLY OBSTRUCT TRAVEL?
DID THE HONORABLE TRIAL COURT ERR BY FAILING TO
CONSIDER EVIDENCE THAT [APPELLEES] WERE AWARE OF
THE DANGEROUS CONDITIONS AND FAILED TO REMEDY
SAID CONDITIONS PRIOR TO [APPELLANT MS. BARRON’S]
FALL?
DID THE HONORABLE TRIAL COURT ERR IN GRANTING
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SUMMARY JUDGMENT AS A MATTER OF LAW AS THERE
EXIST[] GENUINE ISSUES OF MATERIAL FACT TO BE
DECIDED BY THE FACT-FINDER?
(Appellants’ Brief at 3).
In their issues combined, Appellants argue Appellees had a duty to
protect Appellant Ms. Barron from the alleged dangerous condition of snow
and ice on the shopping center property. Appellants contend the condition
was not open and obvious because part of the sidewalk was at an angle and
cuts in the sidewalk underneath the snow allowed ice to form. Appellants
assert the snow and ice had accumulated in ridges and elevations that
unreasonably obstructed travel. Appellants claim the court disregarded
photographic evidence showing a ramped area of the sidewalk and cuts in
the concrete, which would have allowed the natural creation of hills and
ridges of ice and snow. Appellants maintain Appellees had actual and
constructive notice of the alleged dangerous condition and failed to take
precautionary or remedial measures prior to Appellant Ms. Barron’s fall.
Appellants conclude the trial court erred in granting summary judgment
because genuine issues of material fact exist. We disagree.
Our standard of review with respect to a trial court’s grant of summary
judgment is as follows:
[W]e apply the same standard as the trial court, 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.
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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. All doubts as to the existence of a genuine issue
of a material fact must be resolved against the moving
party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause
of action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there is no
genuine issue of any material fact as to a necessary
element of the cause of action or defense, which could be
established by additional discovery or expert report and
the moving party is entitled to judgment as a matter of
law, summary judgment is appropriate. Thus, a record
that supports summary judgment either (1) shows the
material facts are undisputed or (2) contains insufficient
evidence of facts to make out a prima facie cause of action
or defense.
Upon appellate review, we are not bound by the trial
court’s conclusions of law, but may reach our own
conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
To prevail in a negligence action, a plaintiff must establish the
defendant “owed a duty of care to the plaintiff, that duty was breached, the
breach resulted in the plaintiff’s injury, and the plaintiff suffered an actual
loss or damages.” Merlini ex rel. Merlini v. Gallitzin Water Authority,
602 Pa. 346, 354, 980 A.2d 502, 506 (2009). A land possessor is liable for
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physical harm caused to an invitee only if the following conditions are
satisfied:
[The land possessor] knows of or reasonably should have
known of the condition and the condition involves an
unreasonable risk of harm, he should expect that the
invitee[s] will not realize it or will fail to protect themselves
against it, and the party fails to exercise reasonable care
to protect the invitees against the danger.
Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719,
722 (Pa.Super. 1997), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997)
(citation omitted). The “mere existence of a harmful condition in a public
place of business, or the mere happening of an accident due to such a
condition is neither, in and of itself, evidence of a breach of the proprietor’s
duty of care to his invitees, nor raises a presumption of negligence.” Myers
v. Penn Traffic Co., 606 A.2d 926, 928 (Pa.Super. 1992) (en banc), appeal
denied, 533 Pa. 625, 620 A.2d 491 (1993).
“There is no absolute duty on the part of a landowner to keep his
premises and sidewalks free from snow and ice at all times.” Rinaldi v.
Levine, 406 Pa. 74, 78, 176 A.2d 623, 625 (1962). “There is no liability
created by a general slippery condition on sidewalks. It must appear that
there were dangerous conditions due to ridges or elevations which were
allowed to remain for an unreasonable length of time, or were created by
defendant’s antecedent negligence.” Id. This Court has summarized “the
doctrine of hills and ridges” as follows:
This doctrine provides that an owner or occupier of land is
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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
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; (3) that it was the dangerous
accumulation of snow and ice which caused the
plaintiff to fall.
Gilligan v. Villanova University, 584 A.2d 1005, 1007 (Pa.Super. 1991)
(citations omitted). “Absent proof of all such facts, [a] plaintiff has no basis
for recovery.” Rinaldi, supra at 79, 176 A.2d at 626 (emphasis in original).
Instantly, the court reasoned as follows:
The evidence in this case establishes that on the date and
at the time that [Appellant Ms. Barron] alleges that she
fell[,] there was a generally slippery condition throughout
the local community which was a direct result of natural
accumulation that occurred overnight and earlier that
same day. No actual evidence has been presented that
snow and ice had accumulated on the sidewalk in ridges or
elevations of such size and character as to unreasonably
obstruct travel. [Appellant] admits that the area in which
she allegedly fell consisted of only flat and level snow. The
scenario presented in this case, and the evidence in
support thereof, goes to the heart of the policy behind the
“hills and ridges” doctrine. The [c]ourt cannot require
[Appellees] to subscribe to the impossible burden that
their sidewalks always be free and clear of ice and snow
because of the climatic conditions in this hemisphere.
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(Trial Court Opinion, filed August 25, 2015, at 7-8.) The record supports the
court’s analysis. Evidence of a recent snowstorm established the existence
of generally slippery conditions in the community at the time of the incident.
Appellants were aware of the snowstorm and freshly fallen snow.
Appellants’ claim that hills and ridges of snow and/or ice had accumulated
on the sidewalk was negated by Appellant Ms. Barron’s own testimony 1 that
all she observed was three to five inches of “flat, level snow.” Appellant Ms.
Barron further testified that it “felt” like she had slipped on snow and ice but
gave no description of the alleged ice. Appellants’ photographic evidence
failed to create a genuine issue of material fact. The photographs did not
show the actual condition of the sidewalk and snow at the time Appellant Ms.
Barron fell. Rather, they showed the snow- and ice-free sidewalk eight
months after the incident. Therefore, the court properly determined
Appellants failed to produce sufficient evidence to satisfy the first prong of
the hills and ridges doctrine. See Gilligan, supra; Rinaldi, supra.
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1
We observe generally that the rule of Borough of Nanty-Glo v.
American Surety Co. of New York, 309 Pa. 236, 163 A. 523 (1932)
prohibits summary judgment “where the moving party relies exclusively on
oral testimony, either through testimonial affidavits or deposition testimony,
to establish the absence of a genuine issue of material fact except where
the moving party supports the motion by using admissions of the opposing
party or the opposing party’s own witness.” First Philson Bank, N.A. v.
Hartford Fire Ins. Co., 727 A.2d 584, 587 (Pa.Super. 1999) (emphasis
added). See also Lineberger v. Wyeth, 894 A.2d 141, 149 (Pa.Super.
2006) (stating appellant’s own witness’ deposition testimony can be used in
summary judgment proceedings under Nanty-Glo exception).
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Consequently, regardless of whether the allegedly hazardous condition was
open and obvious or Appellees had notice of it, Appellants are not entitled to
relief. See Rinaldi, supra; Gilligan, supra. Based on the foregoing, the
court properly entered summary judgment in favor of Appellees.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2016
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