Lopez, M. v. Albright College ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
MALTA LOPEZ, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ALBRIGHT COLLEGE, :
:
Appellee : No. 528 MDA 2019
Appeal from the Order Entered February 22, 2019
in the Court of Common Pleas of Berks County
Civil Division at No(s): 17-19359
BEFORE: LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 04, 2019
Malta Lopez appeals from the judgment entered on February 22, 2019,
which granted summary judgment in favor of Albright College (Albright) in
this slip and fall case. After review, we reverse the order granting summary
judgment.
We glean the following relevant factual and procedural history from
the record. A major snow storm, calling for up to three feet of snow, was
predicted to begin during the overnight hours of March 13-14, 2017, in
Reading, Berks County, Pennsylvania, where the parties are located. Light
snow started about 9:00 p.m. on March 13, 2017, with accumulation starting
around 11:30 p.m. that night. Overnight it changed to heavy snowfall such
that areas where snow had been removed became re-covered with snow
within the hour. Around 9:00 a.m. on March 14, 2017, the snow changed to
* Retired Senior Judge appointed to the Superior Court.
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freezing rain and sleet, and then changed back to snow around noon on that
day, making for icy conditions.
Between March 13 and March 14, 2017, the total snowfall was
between 16 and 18 inches, which compacted down to 12 to 14 inches due to
rain, sleet, and freezing rain. On March 13, 2017, Albright preemptively
decided to close the following day, March 14, 2017, due to inclement
weather. Albright operated on a two-hour delay on March 15, 2017.
According to Lopez, she fell at about 7:45 p.m. on March 15, 2017, on
the sidewalk of 13th Street near Albright’s athletic center. On October 31,
2017, Lopez filed a civil complaint against Albright, complaining her fall was
due to Albright’s negligence. After the pleadings closed, the parties
conducted discovery, which included the depositions of Lopez, Steve Yascoe,
a public safety officer and shuttle driver for Albright, and Rick O’Leary,
Albright’s Grounds Manager.
Lopez testified during her deposition that her daughter had a work
shift at the local supermarket from 4:00 to 8:00 p.m. on March 15, 2017,
and that Lopez always walked her daughter to and from work. Lopez stated
that she walked her daughter to work at about 3:45 p.m. that day, and then
returned home on foot, using the same route via the 13th Street sidewalk.
According to Lopez, when it was time to pick up her daughter from work,
Lopez walked the same route a third time, slipped and fell on the sidewalk at
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about 7:45 p.m., and injured her right arm. Just after Lopez fell, she walked
across 13th Street to where Yascoe was located and told him about her fall.
Yascoe testified during his deposition that the weather on March 15,
2017, was snowy and icy. After Lopez told him she had fallen, he asked if
she needed medical attention, and Lopez declined. After receiving
permission from his supervisor, Yascoe transported Lopez to the
supermarket to pick up her daughter and then drove Lopez and her daughter
to Lopez’s house. Yascoe then returned to work and completed an incident
report that night.
O’Leary testified during his deposition that Albright’s grounds crew
arrived to perform snow removal around 11:00 p.m. on March 13, 2017, and
worked straight through for roughly 24 hours. Albright’s campus was not
fully cleared at this point, but was operational with areas of snow and ice on
macadam and walkways. The crew returned about 4:30 a.m. on March 15,
2017. By the early morning hours of March 15, the main sidewalks and
thoroughfares on Albright’s campus were clear for foot travel.
O’Leary further testified that 13th Street is a main thoroughfare that
was a high priority area to be cleared, and it received extra salt because it is
a public walkway. The sidewalk where Lopez fell was constantly plowed and
salted on March 14, 2017, and on March 15, 2017, that same area was
salted at least three times, in addition to being plowed. To clear the
sidewalks, the grounds crew plowed and salted. The crew’s equipment had
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plow cutting blades which plowed the entire width of the sidewalk from edge
to edge. As the snow was plowed, it was piled to the right or left of the
sidewalks.
After discovery, Albright filed a motion for summary judgment on
November 7, 2018. Based on the evidence adduced during discovery,
Albright contended that, pursuant to the hills and ridges doctrine,1 it was not
1 We have described the hills and ridges doctrine as “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.” Collins v. Philadelphia Suburban
Dev. Corp., 179 A.3d 69, 72 (Pa. Super. 2018), quoting Biernacki v.
Presque Isle Condominiums Unit Owners Ass'n, Inc., 828 A.2d 1114,
1116 (Pa. Super. 2003). However,
[t]he conceptual basis for the rule is not entirely clear. It
appears to combine two separate principles: the notion that a
possessor of land is ordinarily not liable for conditions that occur
naturally, and the notion that liability for a dangerous condition
not caused by the defendant himself should be imposed only
where the danger existed for a sufficient period of time that
failure to eliminate it can be deeded unreasonable.
3 West’s Pa. Prac., Torts: Law and Advocacy § 5.14. The doctrine is not
without its critics. As Judge Olszewski opined in his concurring opinion in
Morin v. Traveler’s Rest Motel, Inc.,
The [hills and ridges] doctrine was developed to protect
municipalities from unreasonable exposure to liability for injuries
caused by climactic conditions. In order to prevail under the
doctrine, a plaintiff must show more than a landowner’s failure
to exercise reasonable care. Plaintiff has the additional burden
of demonstrating that ice and snow has been on the ground a
sufficient length of time to accumulate as “hills and ridges.”
(Footnote Continued Next Page)
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liable for Lopez’s claim of negligence. Albright’s Motion for Summary
Judgment, 11/7/2018, at ¶ 5. Lopez responded on November 14, 2018,
asserting that the hills and ridges doctrine was inapplicable because the
evidence established that the snow and ice upon which she fell “was not
purely the result of a natural accumulation” and had been “manipulated or
otherwise altered” by Albright. Lopez’s Response in Opposition to Albright’s
Motion for Summary Judgment, 11/14/2018, at ¶ 5. Following argument,
the trial court granted Albright’s motion for summary judgment pursuant to
the hills and ridges doctrine. Order, 2/22/2019, at 1; see also Trial Court
Opinion, 4/11/2019, at 3.
(Footnote Continued) _______________________
Because of 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. In contrast,
private business owners do not encounter the same practical
difficulty maintaining their land. Consequently, 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. I agree with Justice Roberts’ concurring
opinion in Wilson v. Howard Johnson Restaurant, [] 219
A.2d 676 ([Pa.] 1966) disapproving of the application of the
doctrine to a business invitee. Justice Roberts’ view did not
carry the day, however, and the Wilson majority held that the
hills and ridges doctrine applies to business invitees. Although I
agree with [Morin] that the “hills and ridges” doctrine should not
apply in this case, such change in the law must come from our
Supreme Court.
704 A.2d 1085, 1089-1090 (Pa. Super. 1997).
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This timely-filed appeal followed.2 On appeal, Lopez argues that the
trial court erred or abused its discretion in holding that the hills and ridges
doctrine precluded Lopez’s negligence claim. According to Lopez, there is a
genuine issue of material fact as to whether the condition was “an entirely
natural accumulation” and whether Lopez was exercising reasonable care
when she fell. Lopez’s Brief at 6.
In reviewing an appeal from the trial court’s grant of a motion for
summary judgment, we are governed by the following.
Our scope of review of summary judgment orders is
plenary. We apply the same standard as the trial court,
reviewing all the evidence of record to determine whether there
exists a genuine issue of material fact. We 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. Only where there is no
genuine issue as to any material fact and it is clear that the
moving party is entitled to judgment as a matter of law will
summary judgment be entered.
Motions for summary judgment necessarily and directly
implicate the plaintiffs’ proof of the elements of their cause of
action. Summary judgment is proper if, after the completion of
discovery relevant to the motion, including the production of
expert reports, an adverse party who will bear the burden of
proof at trial has failed to produce evidence of facts essential to
the cause of action or defense which in a jury trial would require
the issues to be submitted to a jury. Thus 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. Upon
appellate review we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions. The
2 Both Lopez and the trial court complied with Pa.R.A.P. 1925.
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appellate Court may disturb the trial court’s order only upon an
error of law or an abuse of discretion.
Collins, 179 A.3d at 73 (citation, brackets, and ellipses omitted).
“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.” Id. (citation and internal quotation
marks omitted). With respect to the hills and ridges doctrine, we have
explained the following.
The hills and ridges doctrine, “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.” Wentz v. Pennswood
Apartments,[] 518 A.2d 314, 316 ([Pa. Super.] 1986). See
Williams v. Shultz, [] 240 A.2d 812, 813-14 ([Pa.] 1968)
(indicating that the doctrine of hills and ridges applies to
preclude liability where “the accident occurred at a time when
general slippery conditions prevailed in the community as a
result of recent precipitation” (citations omitted)).
In order to recover for a fall on an ice or snow covered surface, a
plaintiff must show:
(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; [and] (3) that it was the
dangerous accumulation of snow and ice
which caused the plaintiff to fall.
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This Court has further opined that “the only duty
upon the property owner or tenant is to act within a
reasonable time after notice to remove [the snow
and ice] when it is in a dangerous condition.”
Biernacki, 828 A.2d at 1117 (quotations omitted).
Collins, 179 A.3d at 74.
“The rationale for this doctrine has been explained as follows: ... 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.”
Morin, 704 A.2d at 1087-88 (citation omitted).
The hills and ridges doctrine, however, is not without limitations.
[P]roof 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. Tonik v. Apex
Garages, Inc., [] 275 A.2d 296 ([Pa.] 1971); Williams v.
Schultz, [] 240 A.2d 812 ([Pa.] 1968). Nor is proof of hills and
ridges required when an icy condition is caused by the
defendant’s neglect, as where a city maintains a defective
hydrant, water pipe, drain, or spigot. Ward v. Pittsburgh, []
44 A.2d 553 ([Pa.] 1945).
Harmotta v. Bender, 601 A.2d 837, 842 (Pa. Super. 1992), quoting
Bacsick v. Barnes, 341 A.2d 157, 160 (Pa. Super. 1975).
Further, “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. …[T]he protection afforded by the
doctrine is predicated on the assumption that these formations are natural
phenomena incidental to our climate[.]” Harvey v. Rouse Chamberlin,
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Ltd., 901 A.2d 523, 526 (Pa. Super. 2006) (citations, internal quotation
marks, and alterations omitted).
In the instant case, Lopez argues that the hills and ridges doctrine is
inapplicable for two reasons. First, Lopez argues that the trial court erred in
concluding that generally slippery conditions existed in the community,
because the storm had ended at the time of her fall. Lopez’s Brief at 11-12.
A review of the record shows that generally slippery conditions existed
in the community at the time of Lopez’s fall. Snow records prepared by
O’Leary at the time of the storm confirmed that on March 13-14, 2017, a
winter storm dumped 16 to 18 inches of snow in the area, and that a
mixture of snow, rain, sleet, and freezing rain made for generally icy
conditions. N.T., 7/31/2018 (O’Leary Deposition), at Pl. Exh. 1. The
average temperature was below freezing at 28 degrees Fahrenheit, and the
wet precipitation compacted the fallen snow several inches. Id. Albright
closed due to inclement weather the day before Lopez fell, and operated on
a two-hour delay the day of the incident. Id. Albright’s incident reports
show multiple reports of icy conditions throughout Albright’s campus were
reported on March 15 and 16, 2017. N.T., 7/31/2018 (Yascoe Deposition),
at Pl. Exh. 2.
Lopez does not cite to any portion of the record to indicate that snow
and icy conditions were not generally prevalent in the community. There
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was no evidence that Lopez fell on a specific, localized patch of ice, 3 nor is
there anything in the record to suggest that water from a hydrant, pipe,
drain, or spigot caused the slippery condition. See Harmotta, supra.Instead, the evidence of record indicates that snow and icy conditions were
prevalent in the area as a result of the recent storm. Accordingly, the trial
court correctly held there was no material issue of fact regarding this prong
of the hills and ridges doctrine.
Lopez next argues that the hills and ridges doctrine is inapplicable
because the condition complained of was not the result of a natural
accumulation, but instead due to Albright’s plowing and salting. Lopez’s
Brief at 11-17. Lopez contends that the pile of plowed snow melted before
the incident, and she theorizes that runoff from this snow pile then refroze
and caused the slippery condition on the sidewalk. Id. at 16. Lopez
characterizes O’Leary’s testimony as evidence to support her theory. See
id. At his deposition, O’Leary testified as follows:
Q. Now, you understand the risk of what I’ll call melt
and refreeze?
A. Yes, I understand refreeze.
Q. Okay. And would you agree with me that there is a
greater chance that snow would melt and refreeze on
a sidewalk [if it] sort of sat directly next to the
sidewalk as opposed to just totally removed?
3 In fact, there is evidence to the contrary. Lopez testified that the slushy
puddle appearance spanned the entire length of the sidewalk. N.T.,
7/31/2018 (Lopez Deposition), at 20.
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A. Say this again.
Q. Sure. So what we’ve established is we established
that essentially you guys are pushing the snow to
the side?
A. Uh-huh (yes.)
Q. You’re not taking it away?
A. Okay. I’m not removing snow, yes.
Q. Correct.
A. Yeah.
Q. You’re just sort of pushing it to the side of the
sidewalk. Now, if you had removed the snow, would
you agree with me that there’s, I guess, a smaller
likelihood of a refreeze situation?
A. A smaller likelihood.
Q. Okay. And would you agree with me that refreeze
can be dangerous to pedestrians?
A. Yes.
Q. It could be dangerous to pedestrians because they
could – they could trip and fall. Correct?
A. Yes.
N.T., 7/31/2018 (O’Leary Deposition), at 23-24.
In this case, there is no dispute that a major snowstorm occurred,
which included rain, freezing rain, and sleet. The parties likewise do not
dispute that Albright plowed and salted the sidewalk where Lopez slipped
and fell. However, Lopez has developed a factual issue as to whether the
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sidewalk’s condition was caused by an artificial condition, i.e., melting and
refreezing due to the plowing and salting, as Lopez contends, or by a natural
condition, i.e., melting and refreezing due to freezing rain and sleet from the
storm, as Albright contends.
As in Harvey, the records maintained by Albright suggest that the
condition of the sidewalk could have been influenced by human intervention.
901 A.2d at 527. Given Albright’s interaction with the snow via plowing and
salting, it is possible that the sidewalk’s condition in this case may not have
been the result of an entirely natural accumulation. See id.; but see Beck
v. Holly Tree Homeowners Ass'n, 689 F.Supp.2d 756, 765 (E.D .Pa.
2010) (“[T]he melting and refreezing of snow and ice cover is a natural cycle
associated with temperature change.”), citing Casey v. Singer, 93 A.2d
470, 472 (Pa. 1953).
Accordingly, we conclude that a genuine issue of material fact exists as
to whether the sidewalk’s condition was the result of an entirely natural
accumulation. Thus, we find that the trial court erred in affording Albright
protection from liability pursuant to the hills and ridges doctrine and
granting Albright’s motion for summary judgment.
Order granting summary judgment reversed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/04/2019
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