Mertira, E. v. Camelback Lodge ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ELSA MERTIRA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CAMELBACK LODGE AND INDOOR : No. 1193 EDA 2022
WATERPARK AND CMBK RESORT :
OPERATIONS, LLC :
Appeal from the Order Entered March 31, 2022
In the Court of Common Pleas of Monroe County Civil Division at No(s):
002031-CV-2021
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
CONCURRING MEMORANDUM BY BOWES, J.: FILED JANUARY 24, 2023
I am constrained to concur in the Majority’s holding pursuant to the well-
entrenched line of cases in which “the appellate courts of this Commonwealth
have already applied the doctrine of hills and ridges to situations in which
business invitees have fallen on ice[-]covered private parking areas or walks.”
Wentz v. Pennswood Apartments, 518 A.2d 314, 316 (Pa.Super. 1986);
see also Wilson v. Howard Johnson Restaurant, 219 A.2d 676, 678 (Pa.
1966) (precluding liability where business invitee slipped and fell on an icy
sidewalk in the “parking area” of a restaurant operating during freezing rain
storm); Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1087
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* Former Justice specially assigned to the Superior Court.
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(Pa.Super. 1997) (holding summary judgment warranted against business
invitee who slipped and fell in the ice-covered parking lot of a hotel despite
evidence that business noticed the slippery conditions and unsuccessfully
attempted to treat the property with salt); Roland v. Kravoc, Inc., 513 A.2d
1029, 1032 (Pa.Super. 1986) (upholding summary judgment awarded against
business invitee who slipped and fell in shopping center parking lot since
“there were no ridges and elevations of ice that caused [defendant] to fall”).
To my mind, the result here is largely compelled by the uncontroverted
meteorological evidence in the certified record.1 See Amended Exhibit I to
Motion for Summary Judgment, 3/3/22, at 1-12. An expert report submitted
by Appellees indicates that, throughout the community, “[f]reezing rain fell
from approximately 3:30 PM through 8:00 PM EST with occasional freezing
rain, freezing drizzle and/or sleet falling from approximately 8:00 PM EST
through the end of the day.” Id. at 5. This conclusion is corroborated by the
depositions of Appellant, her family members, and Appellees’ representative,
which uniformly indicated that precipitation was still falling at the time of
Appellant’s unfortunate accident. See Motion for Summary Judgment,
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1 The fact that this case concerns conditions produced by natural precipitation
precludes application of several exceptions to the doctrine. Cf. Tonik v. Apex
Garages, Inc., 275 A.2d 296, 298 (Pa. 1971) (“Where . . . a specific, localized
patch of ice exists on a sidewalk otherwise free of ice and snow, the existence
of ‘hills and ridges’ need not be established.”); Harmotta v. Bender, 601
A.2d 837, 842 (Pa.Super. 1992) (“Nor is proof of hills and ridges required
where an icy condition is caused by the defendant’s neglect, as where a city
maintains a defective hydrant, water pipe, drain, or spigot.” (cleaned up)).
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2/14/22, at Exhibit F at 28 (deposition of Appellant); id. at Exhibit G at 27
(deposition of Appellant’s daughter Edita Mertira); id. at Exhibit H at 33
(deposition of Appellant’s daughter Alba Mertira); see also Response in
Opposition to Summary Judgment, 3/15/22, at Exhibit G at 30 (deposition of
Appellees’ representative Shawn Hilbert).
As the Majority has aptly noted, “a landowner has no duty to correct or
take reasonable measures with regard to storm-created snowy or icy
conditions until a reasonable time after the storm has passed.” Collins
v. Philadelphia Suburban Dev. Corp., 179 A.3d 69, 76 (Pa.Super. 2018)
(emphasis added); see also Biernacki v. Presque Isle Condominiums
Unit Owners Ass’n, Inc., 828 A.2d 1114, 1117 (Pa.Super. 2003) (holding it
was unreasonable to expect a landlord to clear a parking lot of accumulated
snow by the “early morning” after an overnight storm). Since natural
precipitation was still falling at the time of Appellant’s accident, Appellees were
not yet under a duty to address the slippery conditions.
Furthermore, while I generally disapprove of summary judgment
entered before the completion of all relevant discovery, Appellees’ arguable
practices in clearing snow and ice on their property are of no moment pursuant
to Morin, supra. Therein, a hotel was operating during a period of “freezing
precipitation” and took notice of “the icy and slippery condition of the parking
lot.” Id. at 1086-87. The hotel voluntarily treated certain areas of the ice-
slicked property with salt and sand, while leaving other portions of the parking
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lot unmitigated. Ultimately, the plaintiff slipped, fell, and injured herself on
an untreated patch. The trial court entered summary judgment in favor of
the hotel based upon the hills and ridges doctrine. This Court upheld the
ruling and concluded that a business that “voluntarily undertakes to salt and
sand an icy area where no duty exists” does not create a duty merely by doing
an incomplete job. Id. at 1088-89. Pursuant to Morin, any supplemental
evidence regarding Appellees’ regular practices in treating surfaces on its
property for ice and snow would not create a material issue of fact as a matter
of law.2 Id.; see also Collins, supra at 76 (indicating no duty upon property
owners to clear snow and ice produced by an ongoing storm).
Nonetheless, I must express my concern regarding the continued
application of this doctrine to business invitees like Appellant. Indeed, my
review of relevant case law has revealed a persistent uneasiness with respect
to this specific issue amongst my fellow appellate jurists. See Wilson, supra
at 679 (Roberts, J.; concurring) (declining to approve extension of the “ridged
ice rule” to business invitees); Morin, supra at 1089-90 (Olszewski, J.;
concurring) (objecting to the continue application of the doctrine to business
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2 The alacrity with which Appellees were able to respond to Appellant’s
accident and treat the surrounding surfaces to permit an ambulance to access
the scene seems fairly definitive regarding Appellees’ ability to rapidly respond
to problematic winter weather on its property. See Response in Opposition
to Summary Judgment, 3/15/22, at Exhibit G at 67-70. Indeed, Appellees’
representative reported observing such treatments taking place “at all hours
of the day and night” on the grounds of the resort. Id. at 51.
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invitees, noting: “I see no reason to shield private business owners from
liability where an injured business invitee proves a business owner’s failure to
exercise reasonable care.”).
As Judge Olszewski aptly wrote, the doctrine of hills and ridges was
originally devised “to protect municipalities from unreasonable exposure to
liability for injuries caused by climactic conditions.” Morin, supra at 1089
(citing Kohler v. Penn. Tp., 157 A. 681 (Pa. 1931)). Due to the “practical
difficulty of maintaining vast areas of public land, it is sound policy to limit the
liability of those responsible for the maintenance of such land.” Id. However,
“[i]n contrast, private business owners do not encounter the same practical
difficulty maintaining their land.” Id. (emphasis added).
Furthermore, private property owners typically owe a maximal duty of
care to invitees. As this Court recently reiterated, “[t]he duty of care owed to
a business invitee . . . is the highest duty owed to any entrant upon land. The
landowner must protect an invitee not only against known dangers, but also
against those which might be discovered with reasonable care.”
Shellenberger v. Kreider Farms, ___ A.3d ___, 2023 WL 29338 at *6
(Pa.Super. Jan. 4, 2023) (cleaned up). Moreover, such individuals enter a
landowner’s premises “with implied assurance of preparation and reasonable
care for [her] protection and safety while [she] is there.” Treadyway v.
Ebert Motor Co., 436 A.2d 994, 999 (Pa.Super. 1981). Finally, it is also well-
established that “[i]n determining the extent of preparation to which an invitee
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is entitled to expect to be made for his protection, the nature of the land and
the purposes for which it is used are of great importance.” Id.From the certified record, it seems undisputed that Appellees operate a
private business that is particularly susceptible to, and largely dependent
upon, inclement winter weather occurring upon its property. Thus, it would
seem reasonable and prudent to expect them to take some additional,
affirmative effort to shield its patrons from such foreseeable hazards. Instead,
application of the instant doctrine has evolved to such a point that our
precedent incentivizes property owners like Appellees to take no action to
protect their patrons until compelled to do so by necessity.3
Overall, private businesses in Pennsylvania are empowered to remain
open for business to all potential invitees irrespective of potentially dangerous
winter weather conditions. During such inclement time periods, businesses
are not required to take any ameliorative actions until a “reasonable” time
after natural precipitation ends. See Collins, supra at 76. Furthermore,
businesses may not be held liable for incomplete or lacking attempts at
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3 Indeed, current Pennsylvania law provides that private property owners who
choose to respond quickly to accumulations of snow and ice upon their
property may interfere with natural processes of precipitation and freezing,
thereby exempting them from the protections of the hills and ridges doctrine.
See Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 527 (Pa.Super.
2006) (concluding that the doctrine was inapplicable where formation of black
ice on a roadway was “influenced by human intervention,” i.e., early-morning
snow plowing undertaken in response to an overnight snow). Thus, private
property owners are not only exempted from swift action in this specific
context, they are arguably encouraged to rest upon their laurels.
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treating slick surfaces during the same period of time. See Morin, supra at
1088-89. Despite the axiomatic, heightened duty of care applicable to
business invitees, when the snow begins to fall, Pennsylvania law largely
leaves such individuals out in the cold. While I join my past brethren in
questioning the continued wisdom of this legal paradigm, I am constrained to
agree that it controls the result of the instant case.
Based on the foregoing, I reluctantly concur.
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