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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NANCY ANN DEISSLER, ESTATE OF : IN THE SUPERIOR COURT OF
NANCY ANN DEISSLER, TIMOTHY : PENNSYLVANIA
DEISSLER :
:
Appellant :
:
:
v. :
: No. 912 EDA 2019
:
HOLY REDEEMER HEALTH SYSTEM, :
CREATIVE ESSENTIALS, LINGO :
GROUP, INC. :
Appeal from the Order Entered July 13, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2016-00472
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 05, 2019
Appellants, Nancy Ann Deissler,1 Timothy Deissler, and the Estate of
Nancy Ann Deissler, appeal from the July 13, 2018 Order entering summary
judgment in favor of Appellee, Holy Redeemer Health System in this premises
liability action. After careful review, we affirm.
The facts and procedural history, as gleaned the record, are as follows.
In the early afternoon hours of January 10, 2014, Mrs. Deissler, her daughter,
Meghan Deissler (“Meghan”), and her sister, Donna Schwab (“Ms. Schwab”),
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* Retired Senior Judge assigned to the Superior Court.
1Nancy Ann Deissler died on December 31, 2017, of causes unrelated to this
case. By praecipe filed on March 26, 2018, the court substituted Timothy
Deissler, as Administrator of the Estate of Nancy Ann Deissler, as a party.
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arrived at Holy Redeemer Hospital to visit Mrs. Deissler’s husband, Timothy
Deissler, a hospital patient. Ms. Schwab drove the women to the hospital and
a light rain was falling. The women entered the hospital using a ramp that
was clear of ice, snow, or any other obstructions.
Several hours later, at approximately 6:45 PM, the women left the
hospital using the same ramp. At that time, freezing rain and sleet were
falling, it was dark outside, and the ramp was dimly lit. Ms. Schwab and
Meghan left Mrs. Deissler at the top of the ramp to retrieve the car, but
returned to help her down the ramp. While Mrs. Deissler was waiting for
Meghan and Ms. Schwab to return, Mrs. Deissler looked at the ground and
realized that it was icy and slippery. When Meghan and Ms. Schwab returned
to help Mrs. Deissler down the ramp, Meghan warned Mrs. Deissler to be
careful because she had also noticed that the ramp was icy. None of the
women reported the ramp’s icy condition to Appellee before they attempted
to descend it.
Notwithstanding the icy condition of the ramp, Mrs. Deissler, following
behind Ms. Schwab and Meghan, proceeded down it for six or seven steps,
holding tightly onto a handrail on her right side, before she slipped and fell.
Mrs. Deissler fell backward and to the left, landing primarily on her left
shoulder. Mrs. Deissler injured her shoulder, necessitating surgery. Her
shoulder did not fully recover from the injury.
Mrs. Deissler did not know when during the time that she was inside the
hospital that the ice had formed on the ramp, and she did not report the
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presence of ice or the fact of her fall to anyone at the hospital that night. Mrs.
Deissler was aware that the hospital had other entrances that she could have
used, but she did not suggest to Ms. Schwab or Meghan that they use any of
them.
On January 8, 2016, Appellants initiated this action by filing a Praecipe
for Writ of Summons. On March 11, 2016, Appellants filed a “Complaint in
Trespass” raising Negligence and Loss of Consortium claims. On April 5, 2016,
Appellee filed an Answer and New Matter. Appellants filed a Reply to New
Matter on April 20, 2016.2
Following the close of discovery, on April 2, 2018, Appellee filed a Motion
for Summary Judgment asserting that Appellant could not prove that Holy
Redeemer breached a duty to her because, as she testified at her deposition,
the dangers associated with the allegedly icy exit ramp were “open and
obvious” to her. Motion, at ¶¶ 23-25. See also N.T. Mrs. Deissler Deposition,
12/28/17, at 42, 46. Appellee also argued that Appellants could not prove
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2 On August 2, 2016, Appellee filed a Joinder Complaint against Creative
Essentials asserting that Creative Essentials was responsible for snow and ice
removal on Appellee’s premises. Then, on October 6, 2016, Creative
Essentials filed a Complaint against Additional Defendant Lingo Group, Inc.
On January 25, 2018, all parties stipulated to the discontinuance of the claims
against Lingo Group, Inc.
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that Appellee had notice of the allegedly dangerous condition.3 N.T. Hearing,
6/19/18, at 8-9.
On May 1, 2018, Appellants filed an Answer to Appellee’s Motion for
Summary Judgment, alleging that the deposition testimony “clearly
indicate[s] that there are factual issues in this case.” Answer, 5/1/19, at 5
(unpaginated).
The court held a hearing on Appellee’s Motion. On July 13, 2018, the
trial court entered summary judgment in favor of Appellee. The court
concluded that there were no material facts in dispute and that Appellee was
entitled to judgment as a matter of law, explaining its conclusions as follows:
1. Ms. Deissler’s own admissions establish as a matter of law
that the icy condition of the ramp was “obvious” to her and was
actually “discovered” by her;
2. Further there is no evidence that the alleged dangerous
condition had existed for a sufficient time to place [Appellee] in
actual or constructive notice of the condition; and
3. [] Ms. Deissler could have chosen to leave the hospital by a
different exit but chose not to.
Trial Ct. Order, 7/13/18, at n1.
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3 Appellee further asserted that, because the weather event that caused the
allegedly slippery condition was ongoing at the time of Mrs. Deissler’s fall, the
“hills and ridges” doctrine also precluded Appellants’ recovery. Motion at ¶¶
31-32. The “hills and ridges” doctrine is not relevant to this Appeal.
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This timely appeal followed.4 Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Did the lower court commit errors in [granting] the Motion for
Summary Judgment of [Appellee] in violation of Pa.R.C.P. 1035
including ignoring depositions of important witnesses,
[Appellants’] expert opinions and official weather documents
supporting [Appellants’] case, reaching erroneous factual
conclusions to which there was contradictory deposition
testimony and not recognizing that [Appellant Mrs. Deissler]
was a disabled person with brain damage with short term
memory thereby depriving [Appellants] of the right of trial by
jury when there are genuine issues of material fact?
2. Did the lower court commit error in not finding that [Appellee]
was negligent in failing to provide [Appellant Mrs. Deissler] the
highest degree of care as a business visitor using the handicap
equipped ramp at Holy Redeemer Hospital on January 10,
2014?
Appellants’ Brief at 4.
In both of their issues, Appellants challenge the propriety of the court’s
Order granting summary judgment in favor of Appellee. Appellants argue that
the court erred in focusing only on the deposition testimony provided by Mrs.
Deissler and her daughter to conclude that no genuine issues of material fact
existed. Appellants’ Brief at 17. Appellants also argue that the trial court
failed to “recognize the duty” owed by Appellee to Mrs. Deissler, and
summarily conclude that Appellee “did not provide the high level of care
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4 The July 13, 2018 Order was an interlocutory order as it did not dispose of
all claims and of all parties. Pa.R.A.P. 341. On February 19, 2019, the trial
court granted Creative Essential’s Motion for Judgment on the Pleadings, thus
disposing of all outstanding claims and rendering the July 13, 2018 Order final
for purposes of appeal.
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required by law.” Id. at 21, 24-25. They claim that Appellee had sufficient
time to inspect the condition of the ramp, but negligently failed to do so. Id.
at 23-24. They also contend that Mrs. Deissler’s testimony that she was aware
of other exit ramps is of no consequence because there was no testimony
presented regarding the safety of the alternate ramps. Id. at 21-22.
Our Supreme Court has clarified our role as the appellate court as
follows:
On appellate review [ ], an appellate court may reverse a grant of
summary judgment if there has been an error of law or an abuse
of discretion. But the issue as to whether there are no genuine
issues as to any material fact presents a question of law, and
therefore, on that question our standard of review is de novo. This
means we need not defer to the determinations made by the lower
tribunals. 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) (citations
and quotation omitted).
A trial court may grant summary judgment “only in those cases where
the record clearly demonstrates that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law.” Id.
(citation and quotation omitted); see also Pa.R.C.P. 1035.2(1). “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.” Summers, supra at 1159 (citation omitted). “In so
doing, the trial court must resolve all doubts as to the existence of a genuine
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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).
“Pennsylvania law places the burden on the plaintiff to establish the
existence of negligence on the part of the defendant by proving four elements:
(1) a duty or obligation recognized by law; (2) a breach of that duty; (2) a
causal connection between the conduct and the resulting injury; and (4) actual
damages.” Estate of Swift v. Northeastern Hosp. of Philadelphia, 690
A.2d 719, 722 (Pa. Super. 1997).
The parties do not dispute that Mrs. Deissler was a business invitee on
Appellee’s premises. Thus, we keep in mind the well-settled law regarding
the obligations of a landowner to business invitees.
“Pennsylvania courts long have recognized that a land owner owes a
duty of care to business invitees to keep the premises safe.” Reinoso v.
Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa. Super. 2015) (en
banc). “Possessors of land owe a duty to protect invitees from foreseeable
harm.” Id. at 85 (citing Restatement (Second) of Torts (“Restatement”), §§
341A, 343, and 343A).
However, “[a] possessor of land is not liable to his invitees for physical
harm caused to them by any activity or condition on the land whose danger
is known or obvious to [the invitee], unless the possessor should
anticipate the harm despite such knowledge or obviousness.” Restatement §
343A (emphasis added). “For a danger to be ‘known,’ it must ‘not only be
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known to exist, but … also be recognized that it is dangerous and the
probability and gravity of the threatened harm must be appreciated.’”
Carrender v. Fitterer, 469 A.2d 120, 124 (Pa. 1983) (quoting Restatement
§ 343A, comment b).
In Carrender, our Supreme Court set aside the verdict in favor of the
plaintiff who fell at an icy parking space where she could have chosen to park
in an ice-free space. The Court explained:
Possessors of land owe a duty to protect invitees from foreseeable
harm. Restatement [] §§ 341A, 343 & 343A. With respect to
conditions on the land which are known to or discoverable by the
possessor, the possessor is subject to liability 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 of harm to such invitee, 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.”
Restatement [] § 343. Thus, as is made clear by section 343A of
the Restatement,
“[a] possessor of land is not liable to his invitees for physical
harm caused to them by any activity or condition on the land
whose danger is known or obvious to them, unless the
possessor should anticipate the harm despite such
knowledge or obviousness.”
Restatement [] § 343A.
469 A.2d at 123.
Thus, to survive Appellee’s Motion for Summary Judgment, Appellant
had the burden to prove that: (1) Appellee knew, or by the exercise of
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reasonable care could have discovered, the allegedly icy handicap ramp and
realize that it presented an unreasonable risk of harm to Mrs. Deissler; (2)
Appellee should have expected that Mrs. Deissler would not discover the
allegedly icy ramp, or fail to protect herself against it; and (3) Appellee failed
to exercise reasonable care to protect Mrs. Deissler against the allegedly icy
ramp.
The trial court explained its decision to grant summary judgment in
favor of Appellee as follows:
In the present case, Ms. Deissler’s own admissions establish as a
matter of law that the icy condition of the ramp was “obvious” to
her and was actually “discovered” by her. Further, there is no
evidence that the alleged dangerous condition had existed for a
sufficient time to place Holy Redeemer on actual or constructive
notice of the condition. Finally, Ms. Deissler could have chosen to
leave the hospital by a different exit but chose not do so.
Accordingly, under the facts of record, even when construed in the
light most favorable to [Appellants, Appellee] was entitled to
judgment as a matter of law.
Trial Ct. Op. at 4
Our review of the evidence confirms that Mrs. Deissler testified that she
was aware of the icy condition of the ramp, both because of her own
observation of it and because she was warned of its presence by her daughter
and sister. Accordingly, the record clearly demonstrates that, because Mrs.
Deissler admitted that she was aware that the ramp was icy, Appellants did
not present a genuine issue of material fact as to whether Appellee breached
its duty to Mrs. Deissler as Appellee’s business invitee. Mrs. Deissler’s
admitted knowledge of the condition precluded Appellee’s liability for her
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injuries, and entitled Appellee to judgment as a matter of law in this
negligence action.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/19
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