Neifert, G. v. Speedway LLC and Tracey R. Correll ( 2017 )

J-A15044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GREGORY NEIFERT, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
SPEEDWAY LLC AND TRACEY R. :
CORRELL : No. 1891 MDA 2016
Appeal from the Order dated November 7, 2016
in the Court of Common Pleas of Berks County,
Civil Division, No(s): 15-3929
BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 14, 2017
Gregory Neifert (“Neifert”) appeals from the Order granting the Motion
for Summary Judgment filed by Speedway LLC (“Speedway”), and Tracey R.
Correll (“Correll”) (collectively, “Defendants”), and dismissing Neifert’s
Complaint, with prejudice. We affirm.
The trial court set forth the relevant history underlying this appeal as
follows:
Neifert[] allege[d] in his Complaint[, filed on January 2,
2014,1] that he slipped on ice and fell on the parking lot
[(hereinafter, “the parking lot”)] of [the predecessor corporation
of Speedway], Hess Corporation and Hess Mart, Inc. (hereinafter,
[“the] Store[”]), on December 7, 2012. [Neifert] sustained
injuries and lost consciousness for approximately five minutes.
He subsequently filed a negligence action against [the] Store and
its manager, [] Correll.
1
Defendants filed an Answer and New Matter to the Complaint on July 29,
2014. Neifert thereafter filed a Reply.
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Following the completion of discovery, [D]efendants filed a
Motion for Summary Judgment [on September 2, 2016.2] The
following evidence was obtained through discovery.
[Neifert] purchased a cup of tea at [the] Store on December
7, 2012, at 7:30 a.m. As he was returning to his truck, he fell [in
the parking lot] and struck his head. He does not remember
being in [the] Store and buying his drink.[3] …
It is undisputed that ice was on the ground near where
[Neifert] fell due to precipitation that froze on the ground. The
only employee at [the] Store during [Neifert’s] visit[, Heather
Knappenberger Pisarra (“Pisarra”),] had arrived for work just
before 7:00 a.m.[,] when there was a light mist. [Pisarra stated
that a]t the time of [her] arrival, the ground was wet, but there
was no ice or snow. No customers complained of any ice to
[Pisarra].
Shortly after [Neifert] had exited [the] Store, another
customer entered it and told [Pisarra] that someone had fallen on
the [parking] lot. [Pisarra] went outside and provided assistance
to [Neifert]. [Pisarra] also called 911 and [] Correll.
[] Correll was approximately one minute away from [the]
Store when she [] received [Pisarra’s] telephone call. [Correll]
arrived at [the] Store shortly thereafter and also helped [Neifert].
[Correll] looked around the [parking] lot and discovered that a
small portion of the ground had small, thin patches of black ice
from the ongoing misty rain. She then covered the patches with
ice melt.
2
Defendants asserted in their Motion for Summary Judgment that the “hills
and ridges” doctrine barred recovery by Neifert. Defendants alleged that
generally slippery weather conditions existed in the community on the day of
Neifert’s fall, and Defendants had no actual or constructive notice of the icy
condition that had caused Neifert’s injury. Neifert filed a Response to
Defendants’ Motion.
3
Neifert testified that he did not remember going to the Store on the morning
in question, the weather conditions at that time, or anything that transpired
after his fall. See N.T., 9/9/15, at 75, 80-81, 86. He stated that his head
injury caused him to have memory deficiencies, and his first memory after
the fall was several weeks later in the hospital. Id. at 75, 79, 111.
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The parties also took depositions of [] two EMS workers,
Scott Bernheiser [(“Bernheiser”)] and Carl Moyer [(“Moyer”)],
who [had] responded to the 911 call. [] Bernheiser described the
weather as a “kind of freak ice storm” that had begun after his
arrival for work at 7:00 a.m. [Bernheiser stated that there] was
still a light rain [occurring] when he had arrived at [the] Store.
He further testified that “everything was icy” on the [parking] lot
when he had arrived.
[] Moyer also testified that there had been black ice in the
area where [Neifert] had been. [] Moyer had to hold onto one of
the firefighters because the precipitation had caused some people
to slide as they were walking [on the parking lot].
[Neifert] testified that if he had known that there was a
possibility of ice and icy roads [on the day of the incident], he
would not have driven a rollback truck [(i.e., the type of tow truck
that he had driven on the morning in question)] because it does
not handle well on ice and snow.
According to [historical records, which Defendants had
attached as exhibits to their Motion for Summary Judgment, 4]
there was no precipitation on December 6, 2012, the day before
the accident. On December 7, 2012, t]here was a light rain that
began falling at approximately 6:54 a.m.[,] when the temperature
was 32 degrees Fahrenheit. It was still raining at 7:54 a.m.[,]
when the temperature was 33.1 degrees Fahrenheit.
Trial Court Opinion, 1/9/17, at 1-3 (footnotes added).5
4
The records submitted by Defendants appear to be printouts from a website
(Defendants identify it as Weather Underground), which apparently archives
historical weather records. Neither party produced an expert report
concerning the weather on December 7, 2012.
5
We additionally note that Ronald Landis (“Landis”), a work friend of
Neifert’s, testified that, though Landis was located several miles away from
the Store at the time of Neifert’s fall, Landis remembered that there was “a
freezing rain event” that morning, which caused “icy conditions everywhere.”
N.T., 7/28/16, at 22, 24.
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Following a hearing on Defendants’ Motion for Summary Judgment on
November 7, 2016, the trial court entered an Order that same date granting
the Motion and dismissing Neifert’s Complaint, with prejudice. Neifert timely
filed a Notice of Appeal, after which the trial court ordered him to file a
Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
Neifert timely filed a Concise Statement. The trial court then issued a
Pa.R.A.P. 1925(a) Opinion. Therein, the trial court agreed with Defendants
that the “hills and ridges” doctrine applied to this case and precluded recovery
by Neifert.
Neifert now presents the following issues for our review:
1. Whether the trial court erred in granting Defendants’ summary
judgment [M]otion when there were disputed issues of
material fact concerning the weather conditions/source of the
icy patch at issue at the time of [Neifert’s] fall?
2. Whether the trial court erred in granting Defendants’ summary
judgment [M]otion when there are disputed issues of material
fact and [] Defendants had actual/constructive notice of the
ice?
Brief for Appellant at 4.
“Our scope of review of a trial court’s order granting or denying
summary judgment is plenary[.]” Krapf v. St. Luke’s Hosp., 4 A.3d 642,
649 (Pa. Super. 2010). We may not disturb the order of the trial court unless
it committed an error of law or abused its discretion. Coleman v. Wyeth
Pharms., Inc., 6 A.3d 502, 509 (Pa. Super. 2010).
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
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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. … Failure of a non-moving party to adduce
sufficient evidence on an issue essential to his case and on which
he bears the burden of proof establishes the entitlement of the
moving party to judgment as a matter of law. Lastly, we will
review 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.
Id. (citation omitted); see also Lineberger v. Wyeth, 894 A.2d 141, 146
(Pa. Super. 2006) (stating that “a record that supports summary judgment
will either (1) show the material facts are undisputed[;] or (2) contain
insufficient evidence of facts to make out a prima facie cause of action or
defense and, therefore, there is no issue to be submitted to the jury.”);
Overly v. Kass, 554 A.2d 970, 972 (Pa. Super. 1989) (stating that a court
ruling upon a motion for summary judgment must ignore controverted facts
contained in the pleadings and restrict its review to material filed in support
of and in opposition to a motion for summary judgment and to those
allegations in pleadings that are uncontroverted).
For a party to prevail in a negligence action, a plaintiff must prove that
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 Auth., 980
A.2d 502, 506 (Pa. 2009). A land possessor is subject to liability for physical
harm caused to an invitee only if the following conditions are satisfied:
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[the land possessor] knows of or reasonably should have known
of the condition and the condition involves an unreasonable risk
of harm, [the possessor] should expect that the invitee[s] will
not realize it or will fail to protect themselves against it, and the
[possessor] fails to exercise reasonable care to protect the
invitees against the danger.
Estate of Swift v. Ne. Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super.
1997) (citation omitted). Moreover, 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) (citation omitted).
“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. These formations
are natural phenomena incidental to our climate.” Rinaldi v. Levine, 176
A.2d 623, 625 (Pa. 1962) (citation omitted). Rather, “[i]t must appea[r] 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:
The “hills and ridges” doctrine is a long standing and well
entrenched legal principle that protects an owner or occupier of
land from liability for generally slippery conditions resulting from
ice and snow where the owner has not permitted the ice and snow
to unreasonably accumulate in ridges or elevations.
***
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In order to recover for a fall on an ice or snow covered surface, []
a plaintiff is required to 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.
Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1087, 1088 (Pa.
Super. 1997) (emphasis added, citation and paragraph break omitted).
Accordingly, “a prerequisite to the application of the ‘hills and ridges’ doctrine
is a finding of generally slippery conditions[,] as opposed to isolated icy
patches.” Id.; see also Tonik v. Apex Garages, Inc., 275 A.2d 296, 298
(Pa. 1971) (stating that “[p]roof of ‘hills and ridges’ is necessary only when it
appears that the accident occurred at a time when general slippery conditions
prevailed in the community[.]”).
In his first issue, Neifert argues that the trial court committed legal
error in entering summary judgment against him because there were
disputed issues of material fact regarding (1) the weather conditions prior to
Neifert’s fall; and (2) the source of the ice upon which he fell. See Brief for
Appellant at 9-14; see also id. at 13 (asserting that “[t]he trial court … made
a factual conclusion regarding the weather conditions[,] when the record
evidence contains material facts in dispute regarding same. Such a decision
is reserved for a jury.”). Neifert argues that, contrary to the trial court’s
finding, “there is no evidence of generally slippery conditions” existing in the
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community on the date in question, and therefore, the hills and ridges
doctrine does not insulate Defendants from liability. Id. at 13. According to
Neifert,
each witness testified [in depositions] as to different weather
conditions [on the date of the incident,] and not one witness was
able to reference any temporal nexus needed to show that there
were [generally] slippery conditions at the time of the incident,
that the isolated patch at issue was caused by a recent weather
event[,] or why there w[ere] no icy conditions on other parts of
the [parking lot] – all dispositive issues for Defendants to be
successful with their argument.
Id. at 9-10; see also id. at 10-12, 14 (pointing to the deposition testimony
of Correll, Pisarra, Bernheiser and Moyer, and asserting that these witnesses
gave different accounts regarding the weather conditions on the day of
Neifert’s fall);6 id. at 13 (noting Neifert’s deposition testimony that, although
he did not remember the weather conditions on the day of his fall, he would
not have driven his “rollback truck” had the weather been icy that day, due to
the vehicle’s poor performance in such conditions, which, Defendants urge,
“corrobotate[s] that there were no slippery conditions [on] the morning of the
fall.”).
We have reviewed the relevant testimony of the witnesses to which
Neifert points, see id. at 10-14, in support of his claim that there was a
6
We observe that the citations to the Reproduced Record that Neifert sets
forth in his brief do not correspond with the testimony to which he refers,
which significantly complicates our review.
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factual dispute as to whether generally slippery conditions existed in the
community on the day of his fall. The record evidence, viewed in a light most
favorable to Neifert, supports the trial court’s following analysis of this
matter:
No one disputes the fact that some kind of precipitation occurred
in the morning of December 7, 2012. Some witnesses described
it as icy rain, and others called it a light mist; however, no one
controverted the fact that the precipitation froze when it hit the
ground. The pertinent issue is the state of the parking lot, not
the exact state of the precipitation. No one disputes that it had
been raining. Therefore, the state of the precipitation is not a
material fact because it is quite clear that the general community
experienced icy conditions.
Trial Court Opinion, 1/9/17, at 4-5. Viewing the uncontroverted record
evidence in the light most favorable to Neifert, we conclude that there is no
genuine dispute that Neifert’s fall occurred at a time when general slippery
conditions prevailed in the community.
Moreover, contrary to Neifert’s claim, there was also no testimony or
evidence presented that Neifert fell on a specific localized patch of ice. In
addressing this claim, the trial court stated as follows:
[Neifert] next argues that [the trial] court erred in granting
[D]efendants’ summary judgment [M]otion because [Neifert] fell
on an isolated patch of ice, thus, negating the “hills and ridges”
doctrine. … [Neifert] misconstrues the applicability of the
doctrine of hills and ridges. It is applicable where ice is the
result of a natural accumulation and there are general slippery
conditions in the community. It does not maintain that the
whole property must be one big sheet of ice. Furthermore, [] in
the instant case, there had to have existed more than one small
isolated patch of ice because [] Moyer saw people sliding
elsewhere on the [parking] lot. Water freezes at 32 degrees
Fahrenheit. It was raining, and the water froze on the ground.
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Trial Court Opinion, 1/9/17, at 5 (paragraph break omitted); see also N.T.
(Neifert deposition), 9/9/15, at 75, 80-81 (wherein Neifert stated that he did
not remember anything on the day of his injury, including the condition of the
parking lot or the slippery condition that caused him to fall). Viewing the
evidence in the light most favorable to Neifert, we agree with the trial court’s
determination that there is no genuine factual dispute in this regard.
Finally, the trial court correctly found that the uncontradicted facts show
that Neifert failed to produce any evidence that ice had accumulated on the
parking lot in ridges or elevations that unreasonably obstructed his travel and
constituted a danger. See Trial Court Opinion, 1/9/17, at 7; see also
Wilson v. Howard Johnson Rest., 219 A.2d 676, 678 (Pa. 1966) (where
the plaintiff truck driver had slipped on a sheet of smooth, wet ice in the
parking lot of defendant restaurant, holding that defendant was insulated
from liability by the hills and ridges doctrine, where the plaintiff’s own
testimony established that “the cause of his fall was wet, slippery ice, devoid
of any obstructions or ridges or elevations allowed to remain for an
unreasonable length of time”).
In his second issue, Neifert contends that the trial court erred in
entering summary judgment against him, where there existed a genuine issue
of material fact as to whether Defendants had actual and/or constructive
notice of the icy condition upon which he fell. Brief for Appellant at 16, 19;
see also Morin, supra (stating that, in order to recover for a fall on an ice-
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or snow-covered surface, a plaintiff must prove that the property owner had
actual or constructive notice of the existence of such condition). Neifert
asserts that “the testimony confirms that the icy conditions would have
existed for several hours before [Neifert] fell; that [the Store] employees
would have walked through the parking lot before [Neifert’s] fall[;] and[,] as
such, Defendants had actual or constructive notice of the [dangerous]
condition.” Brief for Appellant at 19. According to Neifert,
[v]iewing the facts in a light most favorable to [Neifert] as the
non-moving party, if there were general icy conditions, as []
Defendants are arguing, then [] Defendants removed that ice
from other parts of [the parking lot,] with the exception of the
[area in which Neifert] f[e]ll. Or the ice at issue came from
something other than precipitation. Either way, it is an issue of
fact for the jury to decide, not the trial court[.]
Id. at 18.
In its Opinion, the trial court addressed Neifert’s claim as follows:
There is absolutely no evidence that [D]efendants knew about the
slippery conditions prior to [Neifert’s] accident. Moreover, even
[Neifert] had not realized that the [parking] lot was icy[, i.e.,
when he had traversed it to enter the Store to purchase his tea].
Presumably, he entered and exited [the] Store on the same
general path. He had no trouble traveling to the Store. The ice
evidently developed rather rapidly between the time of [Neifert’s]
arrival and departure.
Trial Court Opinion, 1/9/17, at 6; see also id. at 7 (stating that “[n]o one
ever told [Pisarra,] who was working at the time [of Neifert’s fall,] that the
[parking] lot was icy. It had not been icy when [Pisarra] had arrived [at the
Store] approximately thirty minutes earlier.”); id. (finding that “[D]efendants
acted within a reasonable time after receiving notice of [the] condition [of the
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parking lot]. The formation of the ice, [Neifert’s] fall, [the Store’s] knowledge
of the accident, and the ice removal[,] occurred within thirty minutes”).
Our review discloses that the trial court’s above analysis is supported by
the uncontroverted facts of record, and we agree with its determination that
there is no disputed issue of material fact in this regard. See id. at 6, 7; see
also Estate of Swift, 690 A.2d at 722 (holding that, although the
plaintiffs/appellants had presented evidence that the decedent’s fall was
caused by water on the floor, the plaintiffs/appellants could not establish a
breach of duty because they failed to produce evidence showing that the
defendant hospital had notice of the condition, how the water arrived on the
floor, and how long the condition existed; thus, summary judgment was
proper). Moreover, viewing the record evidence in the light most favorable to
Neifert, there is no support for his controverted supposition that “Defendants
[had] removed [] ice from other parts of [the parking lot,] with the exception
of the [area in which Neifert fell, o]r the ice at issue came from something
other than precipitation.” Brief for Appellant at 18; see also Overly, supra.
Finally, Neifert failed to adduce any evidence to substantiate his claim that
the ice that formed on the parking lot was caused by a source other than the
precipitation that fell on the morning of December 7, 2012, which all of the
witnesses attested to.
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Based upon the foregoing, we conclude that the trial court properly
applied the hills and ridges doctrine and granted Defendants’ Motion for
Summary Judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2017
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