J-A26037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHELLE HEISER, F/K/A MICHELLE : IN THE SUPERIOR COURT OF
VINCH : PENNSYLVANIA
:
:
v. :
:
:
LITTLE ENTERPRISES, L.P., A :
PENNSYLVANIA LIMITED : No. 440 WDA 2019
PARTNERSHIP :
:
:
v. :
:
:
JOHN CARRICK, D/B/A MJ'S :
LANDSCAPING :
:
:
APPEAL OF: MICHELLE HEISER :
Appeal from the Order Entered February 26, 2019
In the Court of Common Pleas of Cambria County Civil Division at No(s):
2015-2337
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED MARCH 31, 2020
Appellant, Michelle Heiser, appeals from the order entered on February
26, 2019, granting summary judgment in favor of Little Enterprises, L.P. (Little
Enterprises) and John Carrick, D/B/A MJ’s Landscaping (Carrick). Upon
review, we vacate the order granting summary judgment and remand for trial.
The trial court summarized the facts and procedural history of this case
as follows:
J-A26037-19
This case arises out of [an] alleged slip and fall that Appellant
suffered on February 6, 2014 at the DaVita Dialysis Center in the
parking lot of the Budfield Plaza in Johnston, Pennsylvania. On
that date, at approximately 4:15 a.m.[,] Appellant alleges she
slipped and fell in the parking lot while cleaning the snow off her
vehicle after her shift. Appellant claims that she slipped,
attempted to stand up, slipped again, and then proceeded to feel
through the snow around her until she felt the ice underneath of
her with her hand. It is undisputed that a snow storm occurred
on February 5, 2014 and continued throughout the morning of
February 6, 2014, such that there was an estimated four inches
of snow already covering the parking lot upon Appellant’s arrival
to work on the evening of February 5, 2014. Appellant believes
that approximately another six inches of snow fell throughout the
course of her shift at work that night. Appellant claims that Little
Enterprises [], as owner of the Budfield Plaza, is liable for
negligently maintaining the parking lot and for Appellant’s alleged
injuries that resulted from the fall. Little Enterprises [] joined as
an additional [d]efendant [] Carrick, as the snow and ice removal
contractor of the Budfield Plaza. Carrick was contracted by Little
Enterprises to make sure that the parking lot of the Plaza was
completely maintained before patients started arriving in the
morning. [Scott Little, the general partner of] Little Enterprises[,]
testified at [a] deposition that [Little Enterprises] monitored the
parking lot at all times during the winter months and that []
Carrick is there to clean the parking lot every morning before 4:00
a.m.
[] Little Enterprises filed a [m]otion for [s]ummary [j]udgment on
December 3, 2018. Subsequently, [] Carrick filed a [m]otion for
[s]ummary [j]udgment on January 22, 2019 and [o]ral
[a]rgument was held before the [c]ourt sitting en banc on
February 15, 2019. Subsequently, the Honorable Judge Norman
A. Krumenacker III and the Honorable Judge Patrick T. Kiniry
granted [] Little Enterprises[’] and [] Carrick’s [m]otions for
[s]ummary [j]udgment through an [o]pinion and [o]rder on
February 26, 2019. [Appellant] then filed a [n]otice of [a]ppeal
to [this] Court [] on March 21, 2019. [] Appellant filed her
[s]tatement of [errors] [c]omplained of on [a]ppeal [pursuant to
Pa.R.A.P. 1925(b)] on April 10, 2019. [The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on May 3, 2019.]
Trial Court Opinion, 5/3/2019, at 1-2.
-2-
J-A26037-19
On appeal, Appellant presents the following issues for our review:
I. Whether the [t]rial [c]ourt erred in granting [] [m]otion[s]
for [s]ummary [j]udgment [filed by Little Enterprises and
Carrick] when it capriciously disregarded evidence adduced
during discovery that the ice formation upon which
[Appellant] fell was not due entirely to a natural
accumulation, including, but not limited to, testimony that
the drains of the parking lot were covered by snow pushed
over them, pictures of pooled water and ice formations near
the drains due to inadequate drainage, testimony by the
snow plow operator that he did not pay attention to where
the drains were located when he plowed the snow, that the
ice formation was limited to a defined area near the drains,
and the expert report of Ronald Eck, a [p]rofessional
[e]ngineer?
II. Whether the [t]rial [c]ourt misapplied the standard of
review for summary judgment by not providing [Appellant]
the benefit of all reasonable inferences and resolving any
doubts in her favor?
III. Whether the [t]rial [c]ourt misapplied the "hills and ridges"
doctrine to this case to mean that a [p]laintiff cannot
recover if she falls during an active storm regardless of
whether the accumulation causing the fall was not of an
entirely natural origin?
Appellant’s Brief at 4-5.1
Appellant argues that the trial court erred in granting summary
judgment in favor of Little Enterprises and Carrick when it misapplied the hills
and ridges doctrine in this matter. Id. at 22-24. She maintains that the
doctrine of hills and ridges is only applicable when an icy condition is the result
of an entirely natural accumulation of snow and ice following a recent snowfall.
____________________________________________
1 Because these arguments are interrelated, challenging the grant of summary
judgment and the application of the doctrine of hills and ridges, we address
all of Appellant’s claims together.
-3-
J-A26037-19
Id. at 22. Here, Appellant claims that she presented evidence that the
conditions that led to her slip and fall were caused by the negligence of Little
Enterprises and Carrick and, thus, prohibited the application of the hills and
ridges doctrine. Id. at 25. In sum, Appellant posits:
A genuine issue of material fact exists as to whether or not the ice
upon which [] Appellant slipped was of an entirely natural
accumulation or whether there was sufficient human interaction
by [Little Enterprises and Carrick] to prohibit application of the
‘hills and ridges’ doctrine and thus the entry of summary judgment
by the trial court against [] Appellant.
First and foremost, [] Appellant adduced testimony and evidence
concerning [] large walls of snow and ice that were created by
[Carrick’s] snow plow [] at the edge of the parking lot which
impeded the parking lot’s drainage system. Secondly, the trial
court’s decision disregards evidence adduced of inadequate
drainage and defects in the parking lot [surface] itself which
caused water to pool at the edge of the parking lot in the vicinity
in which [] Appellant slip[ped] and fell. Thirdly, the trial court’s
decision disregards the expert report of [] Appellant’s engineer,
Dr. Ronald W. Eck, P.E., Ph.D, who opines that human interaction,
namely, the condition of the parking lot, the manner in which it
was treated, and the lack of adequate drainage contributed to the
accumulation of ice at the edge of the parking lot. Lastly, the
lower court’s decision disregards [Carrick’s] testimony [] that he
treated the parking lot prior to [] Appellant’s fall and evidence that
such treatment was negligently performed.
Id. at 25-26. As such, Appellant argues, “[a] reasonable inference from the
facts established by the record is that the snow pushed to the lower edge of
the parking lot by [] Carrick would mound and obstruct already defectively
graded drains causing water to pool and freeze when temperatures dropped
below freezing.” Id. at 28. Accordingly, Appellant claims that because there
-4-
J-A26037-19
were genuine issues of material fact, it was improper for the trial court to
grant summary judgment.
Our Supreme Court has stated:
Our review on an appeal from the grant of a motion for summary
judgment is well-settled. A reviewing court may disturb the order
of the trial court only where it is established that the court
committed an error of law or abused its discretion. As with all
questions of law, our review is plenary.
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. Where the non-moving party bears the burden
of proof on an issue, [s]he may not merely rely on [her] pleadings
or answers in order to survive summary judgment. Failure of a
non-moving party to adduce sufficient evidence on an issue
essential to [her] case and on which [she] bears the burden of
proof establishes the entitlement of the moving party to judgment
as a matter of law. Lastly, we will 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.
Murphy v. Duquesne University of the Holy Ghost, 777 A.2d 418, 429
(Pa. 2001) (citations, quotations, and ellipses omitted).
This Court has previously determined:
The doctrine [of hills and ridges], as defined and applied by the
courts of Pennsylvania, is a refinement or clarification of the duty
owed by a possessor of land and is applicable to a single type of
dangerous condition, i.e., ice and snow covered walks. The rule
holds 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 this hemisphere. In order to recover
for a fall on an ice or snow covered sidewalk, a plaintiff must prove
-5-
J-A26037-19
(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. Absent
proof of all such facts, plaintiff has no basis for recovery.
Wentz v. Pennswood Apartments, 518 A.2d 314, 316 (Pa. Super. 1986)
(internal citations omitted).
“In Pennsylvania, as a general rule, there is no liability created by a
general slippery condition on the 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.” Bacsick v. Barnes, 341 A.2d 157, 160 (Pa. Super. 1975) (en
banc) (citation omitted; emphasis supplied). “The hills and ridges doctrine
may be applied only in cases where the snow and ice complained of are the
result of an entirely natural accumulation, following a recent snowfall, as we
reiterated that the protection afforded by the doctrine is predicated on the
assumption that these formations are natural phenomena incidental to our
climate.” Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa.
Super. 2006) (internal quotations and citations omitted; emphasis in original).
Moreover,
[The] general hills and ridges rule is subject to a number of
significant exceptions. Thus, proof of hills and ridges is not
required when the hazard is not the result of a general slippery
condition prevailing in the community, but of a localized patch of
ice. Nor is proof of hills and ridges required when an icy condition
-6-
J-A26037-19
is caused by the defendant's neglect, as where a city maintains a
defective hydrant, water pipe, drain, or spigot.
Bacsick, 341 A.2d at 160.
Upon review of the record, in this case, in response to the motions for
summary judgment, Appellant relied upon an expert report from Ronald W.
Eck, Ph.D., dated January 18, 2019. In making his assessment, Dr. Eck relied
upon photographs and video of the site, a site-grading plan, the various
pleadings filed in this matter, all of the deposition testimony taken, pedestrian
safety literature, and a personal site visit approximately 14 months after the
alleged accident. In rendering his opinion, Dr. Eck further relied upon
photographs that he took while visiting the scene. Dr. Eck opined that settled
and depressed areas around the parking lot drains and plowed snow blocking
drainage inlets caused meltwater to pool on the surface of the edge of the
parking lot which then froze causing the conditions that led to Appellant’s fall.
Dr. Eck opined that such a condition constituted an unnatural accumulation of
ice.
Our Supreme Court has held:
It has long been Pennsylvania law that, while conclusions recorded
by experts may be disputed, the credibility and weight attributed
to those conclusions are not proper considerations at summary
judgment; rather, such determinations reside in the sole province
of the trier of fact[.] Accordingly, trial judges are required to pay
deference to the conclusions of those who are in the best position
to evaluate the merits of scientific theory and technique when
ruling on the admissibility of scientific proof.
At the summary judgment stage, a trial court is required to take
all facts of record, and all reasonable inferences therefrom, in a
light most favorable to the non-moving party. This clearly includes
-7-
J-A26037-19
all expert testimony and reports submitted by the non-moving
party or provided during discovery; and, so long as the
conclusions contained within those reports are sufficiently
supported, the trial judge cannot sua sponte assail them in an
order and opinion granting summary judgment. Contrarily, the
trial judge must defer to those conclusions, and should those
conclusions be disputed, resolution of that dispute must be left to
the trier of fact.
Summers v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010) (internal
citations and quotations omitted).
In this case, the trial court issued two opinions2 and neither opinion
addressed Dr. Eck’s report. Instead, the en banc trial court concluded:
[T]he facts are undisputed that [Appellant] fell during an active
snowstorm. [Appellant] admitted that it was snowing when she
arrived at work the prior evening, and that the snow continued to
fall throughout the course of her shift at work. Furthermore, there
is no evidence in the record to support the theory that the ice on
which [Appellant] fell was not due to natural accumulation, and
likewise no evidence to support the claim that the drainage of the
parking lot was in some way defective. In this situation, the
snowstorm was still active and the parking lot had yet to be
cleared by Carrick for the arrival of the morning patients.
Therefore, because there was no evidence to show that [] Carrick
neglected to care for the parking lot as he did on a normal basis
during a snowstorm, summary judgment is appropriate.
Trial Court Opinion, 3/26/2019, at 5-6. The Rule 1925 opinion reached the
same conclusion. See Trial Court Opinion, 5/3/2019, at 4.
Upon review, we conclude that the trial court erred as a matter of law
in granting the motions for summary judgment based upon the doctrine of
____________________________________________
2 As previously mentioned, the trial court, sitting en banc with Judges Norman
A. Krumenacker and Patrick T. Kiniry, issued a decision regarding the motions
for summary judgment on February 26, 2019. Judge Kiniry subsequently filed
a decision pursuant to Pa.R.A.P. 1925 on May 3, 2019.
-8-
J-A26037-19
hills and ridges. As previously stated, the doctrine of hills and ridges is not
an absolute bar to recovery merely because an alleged injury occurs during a
snowstorm. There is still potential liability when the icy condition is created
by a defendant's antecedent negligence, such as improper maintenance of
drainage systems. In this case, Appellant presented an expert report from
Dr. Eck wherein he opined that there were defects around the parking lot
drains,3 and that plowed snow further blocked the drains, causing water to
pool and then freeze before the snow had fallen. This is a question of fact for
a jury to consider.4 Viewing the evidence in the light most favorable to
Appellant, as our standard of review requires, the trial court was simply not
permitted to disregard Appellant’s expert evidence and instead rely exclusively
____________________________________________
3 We briefly note that it is reasonable to infer that Little Enterprises would
have had notice of the drainage conditions since undisputed evidence
indicated that the parking lot’s condition was unchanged for some time.
4 Moreover, in her deposition, Appellant stated that she slipped and fell twice
in an area near the parking lot drains, but was able to traverse the rest of the
parking lot without incident. She claimed that she did not want to fall again,
so she crawled around and felt “slick and smooth” ice underneath the
approximately 10 inches of snow that had fallen. Appellant’s Deposition,
12/15/2016, at 30-31. Appellant stated that once she felt pavement
underneath her, she stood up. Id. at 31. Moreover, in response to the
motions for summary judgment, Appellant also attached an affidavit from
herself. Therein, she claims that she “observed a snow/ice mound that was
approximately three (3) feet in height which ran the entire length of the lower
edge of the parking lot [and] covered the drains that are located [there].”
Appellant’s Affidavit, 2/11/2019, at ¶¶ 2-3. Appellant claims that she slipped
on smooth ice that was underneath the accumulation of new precipitation and
posits that parking lot drains were negligently maintained. This evidence
further creates an issue of material fact.
-9-
J-A26037-19
upon the doctrine of hills and ridges to grant summary judgment in this
matter.
Order vacated. Case remanded for trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2020
- 10 -