J-A23028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ADA AND CHARLES BENNICOFF, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LEHIGH COUNTY AGRIC. SOC. : No. 420 EDA 2017
Appeal from the Order Entered December 27, 2016
In the Court of Common Pleas of Lehigh County
Civil Division at No.: 2015-C-3346
BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD, J*
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 27, 2017
In this negligence action, Ada and Charles Bennicoff (“Appellants”),
wife and husband, appeal from the Order entered in the Lehigh County Court
of Common Pleas granting summary judgment in favor of Appellee, Lehigh
County Agricultural Sociey (“LCAS”). After careful review, we affirm.
On March 6, 2015, Appellants drove their truck to “Ag Hall” located in
the Agricultural Fairgrounds in Allentown owned by LCAS. Two days earlier
it had snowed, and there were patches of ice in the parking lot. Charles
avoided one portion of the parking lot covered in ice, and found a parking
spot in an area of the lot that was not icy. Charles immediately exited the
truck and walked toward the main building without incident ahead of his
wife. Ada exited the truck and took a few steps on dry pavement toward the
front of the car. When she got to the front of the truck, after 3-4 steps, Ada
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* Former Justice specially assigned to the Superior Court.
J-A23028-17
slipped and fell on a white-gray patch of ice, breaking a small bone in her
ankle.
On October 29, 2015, Appellants filed a Complaint against LCAS
alleging Negligence and Loss of Consortium. Appellants claimed that LCAS
left the icy parking lot untreated following inclement weather.
Discovery proceeded with interrogatories, and both Ada and Charles
attended depositions. In her deposition, Ada explained how she saw the
patch of ice before stepping onto it, but decided to walk on it anyway
because she “thought [she] wouldn’t fall.” R.R. at 91 (Ada Benicoff
Deposition, 4/25/16, at 47).
LCAS filed a Motion for Summary Judgment on September 21, 2016,
arguing that Appellants had failed to demonstrate a prima facie case of
negligence because there was no evidence that LCAS owed a duty to Ada.
Since Ada observed the ice and decided to step on it anyway, LCAS argued
that she assumed the risk of her actions because the danger was both
obvious and avoidable. LCAS further averred that the evidence showed that
Charles’ route constituted an “alternative path” that Ada did not use, so the
danger of the ice was clearly avoidable.
Appellants subsequently submitted an Affidavit by Ada, which stated,
in relevant part, that the truck was surrounded by ice in a way that Ada
could not avoid the ice to get into the building at Ag Hall. Ada specifically
claimed that there was no safe alternative route.
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On December 27, 2016, the trial court granted LCAS’s Motion for
Summary Judgment finding that the danger of slipping on the ice was
obvious, Ada was aware of the risk, and Ada assumed the risk when she
stepped onto the ice believing she would not fall. See Trial Court Opinion,
12/27/16, at 5-7. The trial court described how Ada’s Affidavit directly
contradicted her previous deposition testimony, and found that Ada’s
Affidavit was not credible. Id. at 5-6 n.1.
Appellants filed a timely Notice of Appeal. Appellants and the trial
court complied with Pa.R.A.P. 1925.
Appellants present four issues for our review:
I. Whether or not the [Ada’s] affidavit is contradicted by her
deposition testimony?
II. Whether or not there is even a scintilla of evidence that there
was an “alternate safe pathway[”] for [Ada] to take to go from
the parking lot to the building once she was out of the vehicle?
III. Whether or not testimony by [Ada] that she knowingly
stepped on ice is insufficient to prove obvious [sic] and
avoidability required for assumption of risk?
IV. Whether or not the “alternate path” is an articulation of
assumption of risk in “slip and fall” cases?
Appellants’ Brief at 3.
“Our scope of review of a trial court’s order granting or denying
summary judgment is plenary, and our standard of review is clear: the trial
court’s order will be reversed only where it is established that the court
committed an error of law or abused its discretion.” Englert v. Fazio
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Mechanical Services, Inc., 932 A.2d 122, 124 (Pa. Super. 2007) (citation
and quotation omitted). “To the extent that this Court must resolve a
question of law, we shall review the grant of summary judgment in the
context of the entire record.” Summers v. Certainteed Corp., 997 A.2d
1152, 1159 (Pa. 2010) (citation omitted).
Pa.R.C.P. No. 1035.2 provides that a party may move for summary
judgment, after the relevant pleadings are closed, whenever the record
clearly demonstrates that there is no genuine issue of any material fact as to
a necessary element of the cause of action or defense that could be
established by additional discovery or an expert report. See Pa.R.C.P. No.
1035.2(1)-(2). “[W]here the record clearly demonstrates that there is no
genuine issue of material fact[,] . . . the moving party is entitled to
judgment as a matter of law.” Summers, supra at 1159 (citation and
quotation omitted).
“When considering a motion for summary judgment, the trial court
must take all facts of record and reasonable inferences therefrom in a light
most favorable to the non-moving party.” Id. (citation omitted). “In so
doing, the trial court must resolve all doubts as to the existence of a genuine
issue of material fact against the moving party, and, thus, may only grant
summary judgment where the right to such judgment is clear and free from
all doubt.” Id. (citation and internal quotation marks omitted).
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To establish a prima facie case in a negligence action sufficient to
withstand a motion for summary judgment, “a plaintiff must establish (1)
that [she] was owed a duty of care, (2) that the duty was breached, (3) that
[she] was injured, and (4) that [her] injuries were proximately caused by
the breach of duty.” Summers v. Giant Food Stores, Inc., 743 A.2d 498,
506 (Pa. Super. 1999) (en banc) (citations omitted).
“The standard of care a possessor of land owes to one who enters
upon the land depends upon whether the person entering is a trespassor,
licensee, or invitee.” Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983).
“An invitee must demonstrate that the proprietor deviated from its duty of
reasonable care owed under the circumstances.” Campisi v. Acme Mkts.
Inc., 915 A.2d 117, 119 (Pa. Super. 2006) (citation omitted). “Thus, the
particular duty owed to a business invitee must be determined on a case-by-
case basis.” Id. See also Restatement (Second) of Torts §§ 343, 343A
cmt. e (1965).
“When an invitee enters business premises, discovers dangerous
conditions which are both obvious and avoidable, and nevertheless proceeds
voluntarily to encounter them, the doctrine of assumption of risk operates
merely as a counterpart to the possessor’s lack of duty to protect the invitee
from those risks.” Longwell v. Giordano, 57 A.3d 163, 167 (Pa. Super.
2012) (citation and quotation omitted). “By voluntarily proceeding to
encounter a known or obvious danger, the invitee is deemed to have agreed
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to accept the risk and to undertake to look out for himself.” Id. “It is
precisely because the invitee assumes the risk of injury from obvious and
avoidable dangers that the possessor owes the invitee no duty to take
measures to alleviate those dangers.” Id.
In their first issue, Appellants argue that the trial court “intentionally
ignored” Ada’s Affidavit after erroneously determining that her Affidavit
contradicted her deposition testimony. Appellants’ Brief at 11. After
asserting that the trial court failed to “show the contradiction between the
Affidavit and deposition testimony[,]” Appellants recite nine excerpts to
show the similarity of Ada’s Affidavit and deposition testimony. Id. at 11-
12. Appellants also claim that LCAS’s counsel failed to question Ada about
whether there was a safe alternate pathway across the parking lot to Ag
Hall. Id. at 12.
A trial court may disregard an affidavit filed in connection with a
motion for summary judgment when the affidavit is not “wholly credible.”
Gruenwald v. Advanced Computer Applications, Inc., 730 A.2d 1004,
1009 (Pa. Super. 1999). This Court has repeatedly declined to find an abuse
of discretion where a trial court discounts affidavits in which an opposing
party contradicts prior deposition testimony in an effort to overcome
summary judgment. See Stephens v. Paris Cleaners, Inc., 885 A.2d 59
(Pa. Super. 2005) (no abuse of discretion in grant of summary judgment
where trial court disregarded affidavit that contradicted earlier deposition
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testimony); Gruenwald, supra at 1009 (trial court may disregard affidavit
sworn in response to summary judgment motion when it directly contradicts
fact and court therefore finds it not wholly credible); Lucera v. Johns-
Manville Corp., 512 A.2d 661, 667 (Pa. Super. 1986) (no abuse of
discretion by trial court in disregarding affidavit where affidavit was not
“wholly credible”); Taylor v. Tukanowicz, 435 A.2d 181, 183-84 (Pa.
Super. 1981) (“Entry of summary judgment is proper where . . . the
evidence relied upon by the plaintiff is inherently incredible.”).
In this case, Ada stated in her deposition that she observed the patch
of ice while standing on dry pavement and then proceeded to step onto the
ice because she “thought [she] wouldn’t fall.” R.R. at 91 (Ada Benicoff
Deposition, 4/25/16, at 47). Ada also stated that Charles parked the truck
in an area that was not covered in ice. Despite this clear testimony, along
with Charles’ testimony that he parked on dry pavement and had no trouble
walking to Ag Hall, Ada’s subsequent Affidavit directly contradicted this
critical testimony by claiming that there was no alternative safe pathway to
Ag Hall because “the entire area that encircled the truck was covered with
ice.” R.R. at 71 (Ada Benicoff Affidavit, dated 10/3/16, at ¶9). We agree
with the trial court that Ada’s Affidavit contradicted her deposition.
Accordingly, the court was within its discretion to disregard Ada’s
inconsistent Affidavit. Thus, we conclude that there is no merit to
Appellants’ contention.
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In their second issue, Appellants aver that LCAS “did not meet the
threshold of ‘avoidability’ necessary” because there was not “even a scintilla
of evidence that there was an alternate safe pathway” for Ada to walk to Ag
Hall. Appellants’ Brief at 12, 17.
Contrary to the averment, Ada could have avoided the ice patch and
chose instead to step on it. The undisputed evidence showed that Charles
exited the truck and walked toward the entrance to Ag Hall without incident.
Ada also exited the truck where there was no ice or slippery condition and
took three to four steps on dry pavement without incident. See Trial Court
Op., dated 12/27/16, at 6. As she stated in her deposition, she clearly
observed the ice, appreciated the risks of stepping on it, and nonetheless
chose to walk on it when she could have taken an alternate path, either by
following Charles or choosing to step around the obvious ice patch. She,
thus, assumed the known risk when she clearly could have avoided it. See
Ott v. Unclaimed Freight Co., 577 A.2d 894 (Pa. Super. 1990) (holding
that the plaintiff had assumed risk of crossing the icy parking lot where an
alternative route was available and plaintiff admitted the path across the ice
was shorter). This issue is without merit.
In their third issue, Appellants generally contend that “[m]erely
stepping on ice is insufficient to apply the assumption of risk doctrine.”
Appellants’ Brief at 19.
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Appellants’ misleading and general assertion omits key facts upon
which the trial court relied in properly applying the assumption of risk
doctrine to the instant facts. The record shows, as stated supra, that not
only did Ada observe and identify the icy parking lot conditions, but Ada also
specifically observed and identified the specific patch of ice upon which she
stepped before slipping. Ada testified that she decided to walk on the ice
anyway because she “thought [she] wouldn’t fall.” R.R. at 91 (Ada Benicoff
Deposition, 4/25/16, at 47). She, thus, assumed the risk. Appellants are
not entitled to relief with regard to this claim of error.1
In their fourth issue, Appellants essentially rehash their second issue
by stating that “[t]here is no evidence of a safe pathway which would have
taken [Ada] from the parking area to the Sportsman Show.” Appellants’
Brief at 20. We disagree, and need not repeat our analysis of that issue. To
the extent the framing of the question suggests an alternate legal theory,
Appellants do not develop this or any other legal theory in any meaningful
way in their Brief. As a result, Appellants’ claim is unreviewable and, thus,
waived. See Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. Super.
2013) (“It is a well settled principle of appellate jurisprudence that
undeveloped claims are waived and unreviewable on appeal.”).
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1 Appellants cite several cases but do not attempt to explain how their cited
cases support their argument. See Pa.R.A.P. 2119(a) (The argument shall
include “discussion and citation of authorities”).
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In sum, the trial court did not err as a matter of law or abuse its
discretion in granting LCAS’s Motion for Summary Judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2017
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