Tosic, R. v. Coley, J. ( 2018 )

J-A16011-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
RUTH TOSIC, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
JAMES COLEY, BERYL COLEY,
CHRISTOPHER COLEY, HOME REAL
ESTATE & DEVELOPMENT COMPANY AND
CHARLES BUSSEY,
Appellees No. 3475 EDA 2017
Appeal from the Order Entered September 21, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 151203011
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 24, 2018
Appellant, Ruth Tosic, appeals from the September 21, 2017 order
granting summary judgment in favor of Appellees, James Coley and Beryl
Coley (collectively “the Coleys”), and dismissing all of her claims against the
Coleys with prejudice.1 After careful review, we affirm.
In its Pa.R.A.P. 1925(a) opinion, the trial court set forth the relevant
facts and procedural history of this matter as follows:
____________________________________________
1 The Coleys joined Home Real Estate & Development Company and Charles
Bussey (collectively “Additional Defendants”) as additional defendants in the
underlying negligence action; however, Additional Defendants are not parties
to the Coleys’ motion for summary judgment. Additional Defendants filed a
separate motion for summary judgment on May 25, 2017, which was denied
by the trial court on September 21, 2017.
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In January [of] 2014, [Appellant] was working as a certified
nurse [sic] aide. Her work included on-site home visits with
clients. On the morning of January 10[, 2014], she left her house
to conduct home visits. Weather and sidewalk conditions were
“slippery” at the time. She walked from her home to a bus stop,
and she was “slipping and sliding” on the sidewalk along the way.
She took the bus, walked to a coffee shop, and then walked to her
first client’s house, arriving at approximately 8:00 a.m. She had
had difficulty making her way there because the sidewalks were
slippery. She left her first client around 10:00 a.m. and headed
towards the subway, which she intended to take to her second
client visit. She walked through her first client’s neighborhood,
which was controlled by Philadelphia Housing Authority, and which
had treated its sidewalks for ice. However, when she reached
2301 North Park Street [(“the Property”)], the sidewalk had
apparently not been treated and was “covered” with ice. She
slipped and fell on the sidewalk in front of [the] [P]roperty,
injuring herself.
[The Property] was (and presumably still is) jointly owned
by [the Coleys], out-of-state landlords who leased units [located
on] the [P]roperty. The parties do not dispute that neither [the
Coleys] nor their agents had shoveled or treated the sidewalk for
ice or snow that morning. [Appellant] sued [the Coleys], alleging
“[n]egligence and [c]arelessness” for failing to timely inspect the
sidewalk, remove the icy condition, have a person on-site to
monitor and treat the sidewalk, and/or warn pedestrians of the icy
condition.
The Coley[s] … moved for summary judgment, arguing that
the uncontroverted evidence showed that the icy condition at the
time of the fall was due to the continuing freezing rain, and not to
a previous precipitation event that had resulted in ice formation
and/or accumulation. [The Coleys] asserted that, because the
freezing rain condition was ongoing at the time of the fall, [they]
did not have a duty to treat the sidewalk under the relevant
Philadelphia snow removal ordinance until after the precipitation
had ceased. Lastly, [the Coleys] contended that they were
entitled to summary judgment because [Appellant] had failed to
meet the requirements of the “hills and ridges” doctrine.
[Appellant] responded that [the Coleys] “breached their
duty as property owners by failing to either delegate the duties of
snow and ice removal to a third-party or to establish any sort of
plan or mechanism[,] which[] would be implemented in
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anticipation of wintry weather.” She also argued that “piles of
frozen snow and ice” remained in the walkway as a result of prior
snow-shoveling, and that these piles satisfied the requirements of
the “hills and ridges” doctrine. Lastly, she contended that [the
Coleys’] standard of care was established not by the city snow-
removal ordinance, but by the “unrebutted evidence of
neighboring landowner, the Philadelphia Housing Authority who
[sic] had treated [its] sidewalks with salt and/or chemical
compound, which demonstrates the type of plan or mechanism
that is required to be in place by landowners during an impending
forecast of wintry precipitation.”
The [c]ourt considered the motion, responses, and
evidence, and granted [the Coleys] summary judgment [on
September 21, 2017]. [Appellant] then brought the instant
appeal.
Trial Court Opinion (“TCO”), 2/21/18, 1-2 (citation to record and footnote
omitted).
Herein, Appellant raises the following issues for our review:
I. Whether the lower court committed an error of law or abuse
of discretion when it held that there was no genuine issue
of material fact to overcome [the Coleys’] Motion for
Summary Judgment?
II. Where the lower court committed an error of law or abuse
of discretion when it applied the “hills and ridges” doctrine
and failed to consider facts in evidence which support that
the ice formation on [the Property’s] sidewalk was not
created by an “entirely natural accumulation,” and thus is
an exception to the “hills and ridges” doctrine?
Appellant’s Brief at 4.
Our standard of review with respect to a trial court’s decision to grant
or deny 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.
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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, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a non-
moving party to adduce sufficient evidence on an issue essential
to his case and on which it 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.
Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citations
omitted).
Here, in granting the Coleys’ motion for summary judgment, the trial
court relied on the “hills and ridges” doctrine, “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.” Biernacki v. Presque Isle Condominiums Unit
Owners Ass’n, Inc., 828 A.2d 1114, 1116 (Pa. Super. 2003) (quoting Morin
v. Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1087 (Pa. Super. 1997)).
[T]he doctrine of hills and ridges provides 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 climactic conditions
in this hemisphere. Snow and ice upon a pavement create merely
transient danger, and the only duty upon the property owner or
tenant is to act within a reasonable time after notice to remove it
when it is in a dangerous condition.
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Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa. Super. 2006)
(quoting Harmotta v. Bender, 601 A.2d 837, 841 (Pa. Super. 1992)). We
have further stated:
[T]he “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 … the
protection afforded by the doctrine is predicated on the
assumption that these formations are natural phenomena
incidental to our climate.
Id. (emphasis in original) (internal citations and quotation marks omitted).
Additionally, the doctrine of “hills and ridges” will not prevent a plaintiff’s
recovery when the hazard is not the result of a general slippery condition
prevailing in the community, but of a localized patch of ice. Bacsick v.
Barnes, 341 A.2d 157, 160 (Pa. Super. 1975).
In order to recover for a fall on an ice or snow covered surface, a plaintiff
must demonstrate:
(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 traveling
thereon; (2) that the property owner had notice, either actual or
constructive, of the existence of such condition; [and] (3) that it
was the dangerous accumulation of snow and ice which caused
the plaintiff to fall.
Biernacki, 828 A.2d at 1117 (quoting Morin, 704 A.2d at 1088). “Absent
proof of all such facts, a plaintiff has no basis for recovery.” Rinaldi v.
Levine, 176 A.2d 623, 625 (Pa. Super. 1962) (emphasis in original).
Instantly, Appellant argues that “a genuine issue of material fact exists
as to whether the ice formation on the sidewalk in front of [the Coleys’]
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[P]roperty was entirely the result of natural accumulation or whether human
intervention was responsible for [the] ice formation.” Appellant’s Brief at 10.
Appellant further asserts that if it is determined that she fell on ice that was
not an “entirely natural condition[,]” then the “hills and ridges” doctrine should
not be applied. Id. at 17. After careful review, we conclude that the record
belies Appellant’s contention that a genuine issue of material fact exists, and
we uphold the trial court’s application of the “hills and ridges” doctrine in this
case.
In its opinion, the trial court summarized the following expert testimony
on which it based its decision:
[Appellant’s] and [the Coleys’] respective expert meteorologists
agree about all major factual issues in the case. [Appellant’s]
expert, Dick Mancini, opined that the most recent snowfall had
been on January 2nd-3rd, which left a six-inch snow accumulation
on the ground by the 4th. This was followed by a rise in
temperature on January 5th and 6th, along with rain that rapidly
deteriorated the snow-cover. Mr. Mancini stated[:] “The ground
accumulation was near zero by the 7th. There would have
remained piles of plowed/shoveled snow.” The temperature
dropped again on the 7th through the 9th, although without
accompanying precipitation. Regarding the specific date of the
incident, the 10th, Mr. Mancini opined that the first precipitation
event of the day “began near 7:30 a.m… in the form of freezing
rain with air temperatures of about 32 degrees. Due to the cold
antecedent temperatures, pavements/sidewalks would have
become icy almost immediately.” He specifically opined regarding
causation: “In summary, ‘black ice’ had started forming near, or
a short time after, 7:30 a.m., creating the slippery platform that
caused [Appellant] to slip and fall several hours later.” ... The
report does not contain any description of the black ice platform,
or of its depth, height, shape, etc.
Mr. Mancini’s statement, “There would have remained piles
of plowed/shoveled snow,” forms the crux of [Appellant’s]
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argument, as discussed more herein. The report does not make
any further mention of snow piles or ice formations that were left
over on the sidewalk surface from the January 2nd-3rd snowfall.
He does not state that any specific piles or formations existed, or
that any such piles had any causal relationship to the “slippery
platform of black ice” on which [Appellant] slipped.
[The Coleys’] meteorologist, Matthew Potter, also produced
an expert report. Mr. Potter agreed with Mr. Mancini’s assertion
that the ground accumulation prior to that morning’s freezing rain
was near zero, measuring it as “approximately a trace, less than
0.1 inches, of snow and sleet accumulated.” He [did] disagree
with Mr. Mancini regarding how much prior precipitation there had
been that morning: Mr. Mancini stated that precipitation “began
with” the freezing rain around 7:30 a.m., whereas Mr. Potter
stated that there had already been precipitation earlier that
morning, in the form of “scattered flurries and/or light snow” that
eventually mixed with rain and became freezing rain between
6:00 a.m. and 8:00 a.m. Mr. Potter also stated that “[l]ight rain
and pockets of freezing rain fell through the time of the incident,
10:15 a.m., and ended between 11:30 [a.m.] and 12 p.m.” He
averred, “Since the winter storm began, a trace, less than 0.1
inches, of snow and sleet fell, along with a trace to 0.10 inches of
ice accretion from the freezing rain. A Freezing Rain Advisory was
in effect.”
Mr. Potter agreed that “the ice on the sidewalk [Appellant]
slipped and fell on was from the ongoing winter storm on January
10, 2014. Our review of Mr. Potter’s report reveals no mention of
snow piles or banks, from shoveling/plowing or any other activity.
TCO at 4-6 (citations to record omitted) (emphasis in original).
Furthermore, Appellant stated in her deposition that,
the sidewalk where she fell was “covered with” “smooth” ice.
When pressed, she specifically stated that the sidewalk was
“covered with ice” and differentiated this from localized ice
“patches.” She also testified, “I laid there and waited for
somebody. I couldn’t get up…. There was ice all around me. I
really physically tried to get up, but I couldn’t.” She was able to
get up after “ten minutes or longer” when a passerby eventually
assisted her. [Appellant] did not produce any evidence that
specifically averred she fell on a patch of ice. She also specifically
testified that there was no snow on the ground, only ice. Our
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review of her deposition testimony shows no mention whatsoever
of snow piles or banks caused by plowing or shoveling. We also
fail to find any statements in her deposition about anyone
shoveling in the neighborhood in the week prior.
Id. at 6 (citations to record omitted).
In light of the evidence of record, the trial court provided the following
rationale for its decision:
[Appellant] relies exclusively on Mr. Mancini’s statement,
“There would have remained piles of plowed/shoveled snow,” in
conjunction with his statements about the fluctuating
temperatures in the preceding days, to assert that [Appellant]
must have slipped on a pile of shoveled snow that must have
existed from the prior snowfall, because the temperature changes
must have caused the piles to melt and then re-freeze, and thus
a re-frozen patch must have been responsible for [Appellant’s]
fall. We found this factual assertion to be an unsupported
extrapolation from the plain language of Mr. Mancini’s report, as
Mr. Mancini did not at any time opine on the effects of the
fluctuating temperatures on the piles of snow that may or may not
have been present on the sidewalk at the time. [Appellant] did
not testify that any such pile existed or that she slipped on any
such accumulation.
[Appellant’s] deposition testimony, [Appellant’s] expert
meteorologist report, and [the Coleys’] expert meteorologist
report all agree that [Appellant] slipped on a flat surface of black
ice formed by the freezing rain that was ongoing at the time of
the incident. Both experts opine that the leftover accumulation
from the prior January 2nd-3rd winter storm was “near zero” or
“less than 0.1 inches.” Our review of [Appellant’s] deposition does
not show any discussion of snow piles or banks, or any assertions
that people in her client’s neighborhood had shoveled snow since
the prior storm, or that any such piles were present on the
sidewalk. Both experts specify that the ice on which [Appellant]
slipped had been formed sometime that morning, which
contradicts [Appellant’s] assertion that the ice had formed a few
days prior. Mr. Mancini does not specifically opine about the
measure of ice accretion that would have formed by 10:15 a.m.,
as his only measurement is his statements regarding accretions
prior to January 8th; however, Mr. Potter opines that accretion at
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the time of the incident measured 0.1 inches or less. Both agree
that a Freezing Rain Advisory was in effect at the time.
Based on the above, we found that [Appellant] fell due to a
“generally icy condition.” We did not find any evidence in the
record that the ice was anything other than a “natural”
accumulation, as the evidence showed it was created by the
ongoing freezing rain. We found no evidence of “human
intervention” from plowing or shoveling. See Harvey …, 901 A.2d
[at] 527 … (holding that the doctrine did not apply when there
was “undisputed evidence” that plowing had occurred between the
cessation of snowfall and the accident, and holding that the black
ice therefore “could not have been the result of an entirely natural
accumulation”). Because of this finding, the “hills and ridges
doctrine” applies.
When the doctrine applies, a plaintiff is required to show
that the defendant had “unreasonably allowed” an accumulation
to form in ridges or elevations that unreasonably and dangerously
obstructed the plaintiff’s path, and that such an accumulation
caused her fall. [Appellant] has adduced no evidence that the ice
had existed for any significant period of time, since the freezing
rain was ongoing at the time of her fall. [Appellant] also adduced
no evidence that [the Coleys] had notice of the icy condition and
failed to remove it. Thus, we found that [the Coleys] were entitled
to summary judgment as a matter of law.
Id. at 7-8. (citations to record omitted) (emphasis added).
After careful review, we agree with the trial court that the record
contains no evidence that Appellant slipped on anything other than a natural
accumulation of ice. Moreover, we agree that Appellant has failed to establish
that there was any ridge or elevation that would unreasonably obstruct travel.
In fact, as noted by the trial court, supra, Appellant herself testified that the
sidewalk where she fell was covered with smooth ice. Appellant’s own
testimony only further supports the finding that she fell due to “generally icy
conditions.”
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For the reasons stated above, we conclude that Appellant failed to
establish a genuine issue of material fact. Accordingly, we discern no error of
law or abuse of discretion by the trial court, and we affirm the order granting
the Coleys’ motion for summary judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/18
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