Lockman, W. v. Berkshire Hills Assoc. ( 2015 )

J-A18032-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM LOCKMAN AND KATHLEEN : IN THE SUPERIOR COURT OF
LOCKMAN, His Wife, : PENNSYLVANIA
:
Appellants :
:
v. :
:
BERKSHIRE HILLS ASSOCIATES, L.P., :
THE SOLOMON ORGANIZATION, LLC, :
SOLOMON MANAGEMENT, PENDELTON :
REALTY CORP., BERKSHIRE HILLS :
ASSOCIATES, LLC, :
:
Appellees : No. 2094 MDA 2014
Appeal from the Order entered on November 10, 2014
in the Court of Common Pleas of Berks County,
Civil Division, No. 13-00023
BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 07, 2015
William Lockman (“Mr. Lockman”) and Kathleen Lockman (“Mrs.
Lockman”) (collectively, “the Lockmans”) appeal from the Order granting
summary judgment against them and in favor of Berkshire Hills Associates,
L.P., The Solomon Organization, LLC, Solomon Management, Pendleton
Realty Corp., and Berkshire Hills Associates, LLC (collectively, “Defendants”).
We affirm.
In its February 6, 2015 Opinion, the trial court described the facts and
relevant procedural history underlying the instant appeal as follows:
On January 26, 2011, at around 8:15 a.m.[, Mr. Lockman]
left his apartment at Berkshire Hills Apartments [“Berkshire”], in
Sinking Spring, PA, and walked with winter boots from his
J-A18032-15
personal sidewalk onto the common sidewalk to get to his car.
[Mr. Lockman] had cleared his personal sidewalk of snow and ice
that same morning[,] and put rock salt on the area. [Mr.
Lockman] testified that upon walking onto the common sidewalk,
he observed that it wasn’t cleared of ice from a previous storm
and a light coating of snow from the storm currently occurring.
[Mr. Lockman] also testified that there was still a light snow
falling at the time of the incident. [Mr. Lockman] testified that
he had previously walked over the ice on the common sidewalk
from a previous storm out of necessity, but had not made any
complaints to anybody about that ice. [Mr. Lockman] also
testified that he had not fallen when walking over that ice. [Mr.
Lockman] did not call [any representative of Defendants] that
day to address the common sidewalk maintenance before the
incident.
[Mr. Lockman’s] car was at least five parking lot spaces
from his apartment door, and because he noticed [that] the
common sidewalk wasn’t cleared, he was taking ginger steps on
the common sidewalk. [Mr. Lockman] then fell on a particular
patch of ice he did not see before he fell. [Mr. Lockman] further
testified that he did not fall in relation to any cracks or
unevenness in the sidewalk itself. After falling, [Mr. Lockman]
did look back and see a patch of ice, and it appeared to him to
be the one that he fell on. [Mr. Lockman] described the
dimensions of the ice as approximately six inches long, in an
irregular but somewhat circular patch, less than an inch thick.
Trial Court Opinion, 2/6/15, at 2.
On March 22, 2013, the Lockmans filed a two-count Civil Complaint
against Defendants alleging negligence and loss of consortium. Defendants
filed an Answer and New Matter, to which the Lockmans responded with an
Answer to New Matter. Discovery commenced and, at the close of
discovery, Defendants filed a Motion for Summary Judgment. Defendants’
Motion asserted that the “hills and ridges” doctrine bars recovery by the
Lockmans. After the parties filed briefs, and the trial court heard oral
-2-
J-A18032-15
argument on the Motion, the trial court entered an Order granting summary
judgment in favor of Defendants and against the Lockmans. Thereafter, the
Lockmans filed the instant timely appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.
The Lockmans now present the following claim for our review:1
Whether the [t]rial [c]ourt abused its discretion when it granted
summary judgment in favor of [Defendants] and dismissed [the
Lockmans’] cause[s] of action?
Brief for Appellants at 4.
Initially, we observe our standard of review:
A court … may grant summary judgment only when the moving
party demonstrates that there are no genuine issues of material
fact and that it is entitled to judgment as a matter of law. The
appellate court views the record in the light most favorable to
the non-moving party and considers whether an error of law or
abuse of discretion has occurred.
… [T]he questions of whether there are material facts in issue[,]
and whether the moving party is entitled to summary
judgment[,] are matters of law. The abuse-of-discretion aspect
has relevance only with regard to matters which lie within the
discretion of the court of original jurisdiction, such as a
subsidiary evidentiary ruling associated with the award.
Alderwoods (Pa.), Inc. v. Duquesne Light Co., 106 A.3d 27, 34 n.5 (Pa.
2014) (citations omitted).
1
Although the Lockmans’ Statement of Questions Involved identifies two
claims, they are duplicative. The Argument section of the Lockmans’ brief
addresses only the claim stated above.
-3-
J-A18032-15
The Lockmans claim that the trial court improperly concluded, as a
matter of law, that the “hills and ridges” doctrine bars recovery. Brief for
Appellants at 9-10. According to the Lockmans,
[t]here remains material issues of fact, namely: whether the ice
described by [Mr. Lockman] was of a size and character to
constitute a danger to pedestrians; whether [] Defendants had
actual or constructive notice of the condition; and whether the
snow and ice existing on the sidewalk in front of Mr. Lockman’s
apartment caused him to fall.
Id. at 10.
The Lockmans rely upon the testimony of Lauren Harold (“Ms.
Harold”), the property manager at Berkshire. According to the Lockmans,
Ms. Harold indicated that there were daily inspections for ice and snow. Id.
at 12. The Lockmans argue that this testimony is sufficient to impute that
Defendants had constructive notice of the ice and snow, which remained on
the sidewalk in front of Mr. Lockman’s apartment. Id. Ms. Harold explained
that during a large storm, Defendants’ employees would undertake snow
removal after three inches of snow had fallen. Id. In the event of a smaller
storm, Defendants’ employees waited until the snowfall ended. Id.
According to the Lockmans, Ms. Harold acknowledged that, during her time
as property manager, she had received at least ten complaints regarding
patches of ice on the sidewalks and parking lot. Id. at 10.
Finally, the Lockmans refer to Ms. Harold’s testimony that she
personally inspected the area of Mr. Lockman’s fall after the incident, and
the area was free of ice and snow. Id. at 11. According to the Lockmans,
-4-
J-A18032-15
Ms. Harold’s testimony conflicts with that of Mrs. Lockman, who testified that
the day following Mr. Lockman’s accident, she observed that snow and ice
remained at the location of the fall. Id. This testimony, the Lockmans
argue, creates an issue of fact regarding the condition of the sidewalk at the
time of Mr. Lockman’s fall. Id.
Defendants counter that the Lockmans failed to demonstrate that the
“hills and ridges” doctrine is inapplicable. Brief for Appellees at 14.
According to Defendants, the Lockmans presented no evidence establishing
(1) that Defendants had permitted ice to accumulate in ridges or elevations
“of such size and character as to unreasonably obstruct travel on the subject
sidewalk area;” (2) that Defendants had actual or constructive notice of the
ice patch that allegedly caused Mr. Lockman’s fall; and (3) that an issue of
fact existed as to the cause of Mr. Lockman’s fall. Id. at 15.
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.” 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
-5-
J-A18032-15
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.
Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa. Super. 2006)
(citation omitted).
However, proof 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. Tonik v. Apex Garages, Inc., 275 A.2d 296,
298 (Pa. 1971). 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. Morin, 704 A.2d at 1088.
Here, the uncontradicted evidence established the existence of
generally slippery conditions at the time of Mr. Lockman’s fall. Mr. Lockman
testified that immediately before his fall, “I saw a light coating of snow from
the storm that was currently occurring.” N.T., 3/10/14, at 20. Mr. Lockman
then confirmed that “[t]here was a light snow falling at the time.” Id. at 21.
The Defendants also presented evidence of the weather conditions at
the time of the incident, through a Report prepared by Keith Arnensen
(“Arnensen”), a meteorologist. Defendants’ Reply Brief in Response to
Plaintiffs’ Answer to Motion for Summary Judgment, Exhibit B. Arnensen’s
Report described an initial “significant snowfall event” on January 11-12,
2011, producing 4.6 inches of snow in Lehigh Valley, Pennsylvania, and 3.6
inches in Harrisburg, Pennsylvania. Id. at 1. The Report states that on
-6-
J-A18032-15
January 17, 2011, snow began falling around 11:00 p.m. Id. Through the
morning of January 19, 2011, the snow changed to sleet, then freezing rain,
and then all rain, changed to sleet, then freezing rain, and finally changed to
all rain. Id. Snow from this event totaled 1.9 inches in Lehigh Valley, and
2.8 inches in Harrisburg. Id. at 2. The Report described a “minor snow
event,” which took place on January 25, 2011, followed by a major
snowstorm taking place on January 26-27, 2011. According to the Report,
snow on unplowed and untreated surfaces at 7:00 a.m. on January 26,
2011, the day of Mr. Lockman’s fall, was 2 inches at Harrisburg, and 4
inches in Allentown. The Report indicated that “most of this snow was from
the events from earlier in the month[;] however, about one half to one inch
of new snow occurred by about 8 a.m. on the 26th.” Id.
It is probable the meteorological conditions at Sinking
Springs, Pennsylvania[,] around 8:20 a.m. of January 26,
2011[,] were approximately as follows:
…
About 4 inches of snow/ice on unplowed and untreated
surfaces….
Id. (emphasis in original). Based upon the above evidence of generally
slippery conditions existing at the time of Mr. Lockman’s fall, we discern no
error in the trial court’s application of the “hills and ridges” doctrine.
Where generally slippery conditions prevail in the community, to
recover for a fall on an ice or snow covered walkway, a plaintiff must prove
that (1) snow and ice had accumulated on the walkway in ridges or
-7-
J-A18032-15
elevations of such size and character as to unreasonably obstruct travel and
constitute a danger to pedestrians traveling thereon; (2) the property owner
had notice, either actual or constructive, of the existence of such condition;
and (3) it was the dangerous accumulation of snow and ice which caused the
plaintiff to fall. Heasley v. Carter Lumber, 843 A.2d 1274, 1277 (Pa.
Super. 2004).
In his deposition, Mr. Lockman testified that on the day of the fall, he
left his apartment at about 8:15 a.m. N.T., 3/10/14, at 16. Mr. Lockman
stated that he stepped out onto his porch area, which he had cleared of
snow that morning with a shovel and rock salt. Id. at 17, 19. When he
stepped onto the sidewalk, Mr. Lockman testified, “[w]hat I saw was a
sidewalk that wasn’t properly cleared. And I saw snow and ice. I saw ice
from a previous storm and I saw a light coating of snow from the storm that
was currently occurring.” Id. at 20 (emphasis added). According to Mr.
Lockman, “there were patches of ice spots on the sidewalk.” Id. at 27. Mr.
Lockman described the ice patch as having “some depth to it[,]” and was “at
least six inches long and … a portion of an inch thick.” Id. at 31. The
following discussion then took place:
Q. [Defendants’ counsel]: … Was this ice flat? I don’t mean
whether it was level or—I just mean was it flat, whether it’s on
a—was the ice flat?
A. [Mr. Lockman]: … I mean it was somewhat raised because of
its depth, but I mean, you know-
-8-
J-A18032-15
Q. Well, that’s what I’m trying to get away from. I understand
that it’s raised above the sidewalk because it’s on top of the
sidewalk.
A. Uh huh.
Q. I understand that. What I’m asking about was the ice itself—
was the surface—the top surface of the ice basically flat?
A. I would say it was relatively flat.
Q. … So there weren’t any bumps and hills and ridges in
this ice?
A. Not that I could see.
Id. at 31-32 (emphasis added).
In her deposition, Ms. Harold testified that she telephoned Mr.
Lockman following the incident. N.T., 7/2/14, at 14. According to Ms.
Harold, Mr. Lockman said “there was snow on [the sidewalk] and that’s why
he fell.” Id. Ms. Harold confirmed on her incident report that “[t]here was
about 2 inches of snow that started early that morning on 1/26/11.
Maintenance started removing snow around 10. Maintenance started at 10
a.m. because the amount was insignificant.” Id. at 15.
In its Opinion, the trial court concluded that the Lockmans’ evidence,
as a matter of law, was insufficient to overcome the “hills and ridges”
doctrine:
[The Lockmans] contend that the ice Mr. Lockman slipped on
was from a previous snow storm that was not cleared. Even if
the subject ice was left over from a previous storm, Mr. Lockman
testified that upon looking back at the ice he fell on, he observed
that patch of ice as being “relatively flat,” and that there were
not “bumps, hills or ridges” in the ice. [N.T., 3/10/14,] at 33.
-9-
J-A18032-15
Mr. Lockman also testified that the irregular but somewhat
circular patch of ice was about six inches wide and less than an
inch thick. Id. at 31-32. Given Mr. Lockman’s testimony
concerning the specifications of the ice patch, coupled with the
lack of any contradictory evidence about the specifications of
that ice patch, [the court] finds that the ice patch upon which
Mr. Lockman slipped on was, by his own description, less than
an inch thick and flat[,] with no “bumps, hills, or ridges.” It was
therefore, by Mr. Lockman’s own admission, not of a size and
character which would constitute a dangerous condition under
the hills and ridges doctrine[,] as interpreted by the Courts of
this Commonwealth.
Trial Court Opinion, 2/6/15, at 8. We agree with the sound reasoning of the
trial court, as set forth above, and affirm on the basis of its reasoning with
regard to the Lockmans’ claim. See id.
We therefore affirm the Order of the trial court, which entered
summary judgment against the Lockmans and in favor of Defendants.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015
- 10 -