J-S20037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATRINA SOOHEY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SHEETZ, INC.,
Appellee No. 1407 WDA 2015
Appeal from the Order Entered August 18, 2015
in the Court of Common Pleas of Westmoreland County
Civil Division at No.: 1114 of 2015
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 29, 2016
Appellant, Katrina Soohey, appeals from the trial court’s order
sustaining the preliminary objections in the nature of a demurrer of
Appellee, Sheetz, Inc., and dismissing her complaint of negligence. We
affirm.
On March 4, 2015, Appellant filed a complaint, asserting a claim of
negligence against Appellee. The complaint avers that on the morning of
May 1, 2013, she entered a Sheetz, Inc. store on her way to school. While
carrying her wallet in her hands, she brewed a cup of cappuccino at the self-
serve machine, placed a lid on the hot cappuccino, and then carried it to the
cooler where she obtained a bottle of Gatorade and a glass bottle of
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*
Retired Senior Judge assigned to the Superior Court.
J-S20037-16
Starbucks coffee. She carried all of these items, including her wallet, in her
hands and arms. While reaching for a pack of pack of gum, the glass bottle
of Starbucks coffee and the hot cappuccino began to slide from her grasp.
The bottle of coffee crashed to the floor and the cappuccino spilled on her
left arm and breast causing scalding burning to her left breast. (See
Complaint, 3/04/15, at 2-3). Appellant alleges that Appellee is liable for this
harm because of its negligence in not providing a shopping basket to carry
multiple items (including at or near boiling temperature cappuccino) or a
place to put them, making customers carry hot beverages through the store,
and failure to warn of the danger of carrying hot beverages through the
store.1 (See Complaint, at 3-6).
On April 13, 2015, Appellee filed preliminary objections in the nature
of a demurrer to the complaint arguing that the trial court should dismiss it
because Appellant failed to “plead any legally cognizable duty owed to her
under Pennsylvania law.” (Preliminary Objections, 4/13/15, at 2). The trial
court heard oral argument on the objections on July 22, 2015. On August
18, 2015, it entered an order, which found that “in the exercise of due care,
[Appellant] could have avoided the harm that was caused by her carrying
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1
Although Appellant states that she alleged fourteen “separate detailed
allegations of negligence,” a review of her complaint reveals fourteen often
repetitive underdeveloped statements, which, at best, allege the three
allegations of negligence stated above. (Appellant’s Brief, at 1; see
Complaint, at 3-6).
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too many items at once, including her own wallet, and tucking a cup of hot
coffee between her forearm and chest.” (Order, 8/18/15, at 3). The count
concluded that it “[could not] find that [Appellant’s] harm was foreseeable,
or that [Appellee] had a duty to prevent said harm in this matter as the
alleged ‘condition’ was open and obvious to [Appellant] and all other
business invitees on the premise” and therefore sustained Appellee’s
objections and dismissed the complaint. (Id. at 4). This timely appeal
followed.2
Appellant raises two questions on appeal:
I.: [Whether] the [trial] court improperly refuse[d] to
acknowledge the specific allegations of negligence contained in
Appellant’s complaint?
II.: [Whether] the [trial] court err[ed] in concluding Appellant
was required to plead a defect in the land that created the
unreasonable risk of harm?
(Appellant’s Brief, at vi).
Our standard of review of a trial court order sustaining preliminary
objections in the nature of a demurrer is well settled.
A preliminary objection in the nature of a demurrer is
properly granted where the contested pleading is legally
insufficient. Preliminary objections in the nature of a demurrer
require the court to resolve the issues solely on the basis of the
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2
Appellant filed a timely notice of appeal on September 14, 2015. The trial
court did not direct Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On October 2, 2015, it
entered an order pursuant to Rule 1925(a), which adopted the reasoning in
its August 18, 2015 order. See Pa.R.A.P. 1925(a).
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pleadings; no testimony or other evidence outside of the
complaint may be considered to dispose of the legal issues
presented by the demurrer. All material facts set forth in the
pleading and all inferences reasonably deducible therefrom must
be admitted as true.
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine the
averments in the complaint, together with the documents and
exhibits attached thereto, in order to evaluate the sufficiency of
the facts averred. The impetus of our inquiry is to determine the
legal sufficiency of the complaint and whether the pleading
would permit recovery if ultimately proven. This Court will
reverse the trial court’s decision regarding preliminary objections
only where there has been an error of law or abuse of discretion.
When sustaining the trial court’s ruling will result in the denial of
claim or a dismissal of suit, preliminary objections will be
sustained only where the case i[s] free and clear of doubt.
Thus, the question presented by the demurrer is whether,
on the facts averred, the law says with certainty that no
recovery is possible. Where a doubt exists as to whether a
demurrer should be sustained, this doubt should be resolved in
favor of overruling it.
Barton v. Lowe’s Home Centers, Inc., 124 A.3d 349, 354 (Pa. Super.
2015) (citation omitted).
In her first issue, Appellant claims that the trial court erred in refusing
to acknowledge the specific allegations of negligence in her complaint. (See
Appellant’s Brief, at 4-5). Appellant cites no relevant case law, but argues
that the trial court erred by not accepting her allegation that the
temperature of her cappuccino was in excess of industry standards and
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therefore, she adequately pleaded a claim of negligence.3 (See id.). We
disagree.
“To prevail in a negligence action, the plaintiff must show that the
defendant had a duty to conform to a certain standard of conduct, that the
defendant breached that duty, that such breach caused the injury in
question, and actual loss or damage.” Barton, supra at 359 (citation
omitted).
A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land, if
but only if, he:
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves
an unreasonable risk to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them
against the danger.
It does not follow . . . however, that the proprietor of a store is
an insurer of its patrons. Neither the mere existence of a
harmful condition in a store nor the mere happening of an
accident due to such a condition evidences a breach of the
proprietor’s duty of care or raises a presumption of negligence.
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3
We note that in support of this contention, Appellant cites to Restatement
Second of Torts § 286, which describes negligence per se liability based
upon violation of a statute. However, she never alleges that any statute or
regulation was violated to form a basis for negligence per se. (See
Appellant’s Brief, at 4-5). Furthermore, although she cites two cases where
this Court affirmed admitting OSHA regulations as a standard of care, they
are not relevant here where she has not alleged an OSHA violation. (See id.
at 5; Complaint, at 3-6); see also Occupational Health and Safety Act of
1970 (OSHA), 29 U.S.C. §§ 651-78.
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Neve v. Insalaco’s, 771 A.2d 786, 790 (Pa. Super. 2001) (citations
omitted).
Here, Appellant has not shown and we do not discern that the trial
court committed an error of law or abused its discretion in finding that the
complaint failed to plead that Appellee owed a duty to Appellant. (See
Order, 8/18/15, at 3-4); Barton, supra at 354, 359. Upon review of the
pleadings and the trial court’s order, it is apparent that the trial court
accepted as true all material facts set forth in the complaint and all of the
reasonably deductible inferences from those facts. See id. at 354. We note
that while the trial court was bound to accept Appellant’s well pleaded
factual allegations, the court was not bound to accept her conclusion of law
that Appellee therefore had a duty to her and breached that duty. See id.
at 359; see also Whitmer v. Bell Telephone Co. of Pennsylvania, 522
A.2d 584, 586 n.3 (Pa. Super. 1987) (reasoning that while a trial court is
bound to accept as true allegation in complaint, it is not bound to accept
conclusion of law). Accordingly, Appellant’s first issue does not merit relief.
In her second issue, Appellant claims “the [trial] [c]ourt has confused
immunity afforded governmental units under statutory law with the
[c]ommon [l]aw negligence” and argues that the trial court erred by
requiring her to plead a defect in the land in order to show that Appellee
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created an unreasonable risk of harm. (See Appellant’s Brief, at 6).4 We
disagree.
Preliminarily, we note that Appellant has failed to develop this
argument. Her brief includes one paragraph of argument in support of this
contention, which lacks legal analysis and citation to relevant case law.
(See id.). Accordingly, she has waived this issue. See Pa.R.A.P. 2119(b).
Moreover, even if she had not waived this issue, her claim that the trial court
required her to plead a defect in the land itself in order to establish a claim
of negligence is belied by the record.
Possessors of land are subject to liability for conditions that are known
to the possessor only where the possessor “should expect that [invitees] will
not discover or realize the danger, or will fail to protect themselves against
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4
We note that Appellant has misquoted the trial court’s order, which reads:
In the present matter, the harm Plaintiff suffered was not
due to a condition on the land that created an unreasonable risk
of harm, for example, a wet floor or an icy sidewalk, but was
allegedly caused by the lack of the availability of a shopping
basket in which Plaintiff could have placed her purchases to
conveniently carry them.
(Order, 8/18/15, at 3). The paragraph continues:
Plaintiff does not plead any known or obvious condition or defect
with the land itself, other than the failure of Defendant to
provide a shopping basket for customers who want to make
multiple purchases. . . .
(Id.).
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it[.]” Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983) (quoting
Restatement Second of Torts § 343(b)). Additionally,
The possessor of the land may reasonably assume that [an
invitee] will protect himself by the exercise of ordinary care, or
that he will voluntarily assume the risk of harm if he does not
succeed in doing so. Reasonable care on the part of the
possessor therefore does not ordinarily require precautions, or
even warning, against dangers which are known to the visitor, or
so obvious to him that he may be expected to discover them.
Restatement Second of Torts § 343A, comment e.
Here, the trial court cited Restatement Second of Torts § 343 to
describe the duty a landowner owes an invitee and explained that under
Carrender, the duty is only owed where the harm is foreseeable. (See
Order, 8/18/15, at 2-3). The trial court never sets forth any requirement
that a duty only arises from a defect in the land. (See id. at 2-4). In
considering Appellant’s argument, the trial court reasoned “a plaintiff does
not lose her own duty to act with ordinary care in conducting her business
when she sets foot on another’s land.” (Id. at 3). It then found
the lack of shopping baskets in this case was a known and
obvious aspect of the convenience store, and that, in the
exercise of due care, [Appellant] could have avoided the harm
that was caused by her carrying too many items at once,
including her own wallet, and tucking a cup of hot coffee
between her forearm and chest.
(Id.). Finally, the court concluded that it “[could not] find that [Appellant’s]
harm was foreseeable, or that [Appellee] had a duty to prevent said harm in
this matter as the alleged ‘condition’ was open and obvious to [Appellant]
and all other business invitees on the premise.” (Id. at 4).
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We discern no error of law or abuse of discretion in the trial court’s
reasoning or conclusion that Appellant has failed to show that the harm was
foreseeable, or that Appellee had a duty to protect her from such harm.
See Barton, supra at 354; Neve, supra at 790. Accordingly, Appellant’s
second issue would not merit relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2016
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