Truax, T. v. Roulhac, T. ( 2014 )

J-A09022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TRACY TRUAX IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TANYA P. ROULHAC, WILDWOOD 115,
INC. AND SILVIO VITIELLO
Appellees No. 1797 EDA 2013
Appeal from the Order Entered June 11, 2013
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 9958 Civil 2010
BEFORE: BOWES, J., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 24, 2014
Tracy Truax appeals from the order entered June 11, 2013, in the
Court of Common Pleas of Monroe County, granting summary judgment in
favor of defendants, Wildwood 115, Inc. (Wildwood), and Silvio Vitiello
(Vitiello).1 Truax argues the trial court erred: (1) in determining that
Wildwood and Vitiello had, as a matter of law, taken reasonable precautions
property, and (2) in determining Wildwood and Vitiello did not owe a duty to
take reasonable measures to protect patrons from the foreseeable risk of a
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1
Roulhac has not been located or served for purposes of this lawsuit.
Although the resolution of these motions for summary judgment terminated
the cases against Wildwood and Vitiello only, the trial court certified the
order as final, as, for all practical purposes, it terminated the entire matter.
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vehicle jumping the curb. After a thorough review of the submissions by the
parties, relevant law, and the certified record, we affirm.
matter.
At all times material hereto, Defendant Silvio Vitiello was the
sole owner of a parcel of commercial real estate located off
Route 115 in Effort, Pennsylvania. Defendant Wildwood 115,
Inc. was a tenant leasing space from Defendant Vitiello within
agreement, it enjoyed nonexclusive use in common of the
parking lot of the premises.
On March 4, 2009, at approximately 10:38 p.m., [Truax] and
Defendant Tanya Roulhac was operating her van in an
[Truax] was walking south along the sidewalk in front of Madd
parking stop and entered the sidewalk, colliding with [Truax]
with such force that her body was flung into the wall of the
building. [Truax] lost consciousness, was airlifted to Lehigh
Valley Hospital, and suffered serious leg injuries. Defendant
Roulhac fled the scene of the accident and was later arrested.
The sidewalk on the premises was level with the parking lot and
was separated by horizontal concrete parking stops. [Truax]
alleges that these parking stops were inadequate and created a
dangerous condition on the premises. She argues that
Defendants[2] were negligent for failing to remedy this dangerous
condition, namely by failing to install vertical bollards, curbs,
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2
Defendants here means the property and business owners, not the driver,
Roulhac.
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rails or other safety devices. Defendants, conversely, allege that
they satisfied their duty to [Truax] by complying with all
applicable building codes and zoning ordinances and that it
would be unreasonable and overly burdensome for a jury to
overrule experts in determining what kind of safety devices are
necessary. Further, Defendants argue that the events that led
extraordinary that it
would be oppressive to require Defendants to take steps to
prevent such an occurrence. While Defendants filed separate
Motions for Summary Judgment, the issues raised in both
thereof are nearly identical and will, thus, be addressed
together.
Trial Court Opinion, 10/03/2012, at 3-4 (citations to record omitted).
We further note that Truax has agreed that the wheel stops 3 at issue
were five inches high. See .
judgment requires us to determine whether the trial court
abused its discretion or committed an error of law[,] and our
Petrina v. Allied Glove Corp., 46
A.3d 795, 797-
view the record in the light most favorable to the nonmoving
party, and all doubts as to the existence of a genuine issue of
Barnes v. Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing
Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 736 (Pa. Super.
2009)
as to any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
Id. The rule governing summary
judgment has been codified at Pennsylvania Rule of Civil
Procedure 1035.2, which states as follows.
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3
Throughout the certified record, these are referred to as either parking
stops or wheel stops. We will refer to them as wheel stops.
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Rule 1035.2. Motion
After the relevant pleadings are closed, but within such
time as not to unreasonably delay trial, any party may
move for summary judgment in whole or in part as a
matter of law
(1) whenever there is no genuine issue of any material fact
as to a necessary element of the cause of action or
defense which could be established by additional discovery
or expert report, or
(2) 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.
Pa.R.C.P. 1035.2.
-moving party bears the burden of proof on an
issue, he may not merely rely on his pleadings or answers in
order to survive. Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214,
1223 (Pa. Super. 2012) (citations omitted), appeal denied, 65
A.3d 412 (Pa. 2013). -moving party to
adduce sufficient evidence on an issue essential to his case and
on which he bears the burden of proof establishes the
Id.
Thus, our responsibility as an appellate court is to determine
whether the record either establishes that the material facts are
undisputed or contains insufficient evidence of facts to make out
a prima facie cause of action, such that there is no issue to be
decided by the fact-finder. If there is evidence that would allow a
fact-finder to render a verdict in favor of the non-moving party,
then summary judgment should be denied.
Id. citing Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa.
Super. 2011), quoting Jones v. Levin, 940 A.2d 451, 452-454
(Pa. Super. 2007) (internal citations omitted).
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Cadena v. Latch, 78 A.3d 636, 638-39 (Pa. Super. 2013).
In this matter, the non-moving party, Truax, bore the burden of
proving her allegations of negligence against Vitiello and Wildwood.
Our Supreme Court has set forth the elements of a cause of
action based upon a negligence theory in Pennsylvania as
follows:
(1) a duty or obligation recognized by the law requiring the
defendant to conform to a certain standard of conduct for
the protection of others against unreasonable risks;
(2) defendant's failure to conform to the standard
required;
(3) a causal connection between the conduct and the
resulting injury;
(4) actual loss or damage resulting to the plaintiff.
, 59 A.3d 621, 638 (Pa. Super.
2012) (citation omitted). Therefore, if Truax has failed to meet any of the
four requirements to sustain an action based upon negligence, the case must
fail as a matter of law.
Finally, we note,
A possessor of land is not an insurer of his business invitees, and
plaintiff's evidence must establish some degree of negligence on
defendant's part in order to recover. Sloss v. Greenberger,
396 Pa. 353, 152 A.2d 910 (1959); Miller v. Hickey, 368 Pa.
317, 81 A.2d 910 (1951). Furthermore, a jury cannot be
permitted to return a verdict based on speculation and not
have said many times that the jury may not be permitted to
reach its verdict merely on the basis of speculation or
conjecture, but that there must be evidence upon which logically
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Smith v. Bell Telephone Co.,
397 Pa. 134, 138, 153 A.2d 477, 479 (1959). Circumstantial
necessary, under Pennsylvania law, that every fact or
cir Id. at 138, 153
A.2d at 480, however, the mere happening of an accident is no
evidence of negligence and does not raise a presumption of
negligence. Amon v. Shemaka, 419 Pa. 314, 214 A.2d 238
(1965).
Winkler v. Seven Springs Farm, Inc., 359 A.2d 440, 442 (Pa. Super.
1976).
There is no dispute that Truax was a business invitee of Madd
protect her from the foreseeable harm caused by a third party. Vitiello and
Wildwood have argued they met all appropriate local requirements and their
use of five-inch high wheel stops was sufficient to protect pedestrians under
known circumstances.4
and/or Wildwood were required to provide a sidewalk with a five-inch curb
and bollards to protect such pedestrians walking on the sidewalk. She
attempted to demonstrate the insufficiency of the wheel stops by presenting
5
of TEC, Inc.
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4
Neither Vitiello nor Wildwood has provided copies of the relevant local
codes or regulations in the certified record. Neither have they provided
citations to those codes or regulations.
5
Professional Engineer.
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medical negligence, the report must relate the standard of care, how the
to the harm complained of. See Rohrer v. Pope, 918 A.2d 122, 125 (Pa.
Super. 2007 (expert report must describe standard of care; establishing
duty, breach of duty and causation). If the expert fails to provide the
required information, then the report is insufficient as a matter of law. Id.
See also Welsh v. Bulger, 698 A.2d 581, 587-88 (Pa. 1996) (dissenting
opinion by Castille, J.) (citing Mitzelfelt v. Karim, 584 A.2d 888 (Pa.
1990); Menarde v. Philadelphia Transportation Co., 103 A.2d 681 (Pa.
1954)).
Here, the expert report must describe the relevant engineering
standards for the design and construction of a parking lot. It must then
show how
and how that deviation led to the automobile accident at issue. It is the
deviation from the appropriate standards that leads to a finding of
negligence. The opinions regarding those elements must be made within a
reasonable degree of certainty. See generally Rauch v. Mike-Mayer, 783
A.2d 815, 826 (Pa. Super. 2001). We note that it is those required elements
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determination of negligence. Without these required elements, a jury would
be left to speculation, guesswork and conjecture.
Here, accepting everything the expert opined as true, the report still
fails to relate the appropriate engineering standards for the design of a
cannot show a deviation from those standards nor demonstrate negligence.6
wheel stops were insufficient to stop vehicles such as SUVs or vans, which
have higher ground clearance. He also opined that there should have been a
four to six inch high curb to prevent vehicles from driving onto the sidewalk.
TEC reviewed the Bardakjy parking layout[7] which is confirmed
by the photographs taken after the accident. The parking lot is
graded flush to the sidewalk. Standard practice is to have the
sidewalk raised above the grade of the lot by 4 to 6 inches.
Wheel stops are in place at the spaces facing the building,
however, these stops are meant only to reinforce the definition
of the end of the parking space. It is evident from damage to
stop at this location was not effective in reinforcing the definition
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6
resses other issues, such as ingress to the
parking lot, lighting, and the encroachment of the bar onto the sidewalk.
However, as will be discussed, there is no indication of record that any of
these issues played any part of the accident. Therefore, these issues are
irrelevant to our analysis.
7
Bardakjy was apparently the person or entity that produced the ground
plans for this property.
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of that space. These wheel stops are only effective for low-
speed parking maneuvers and are not effective in stopping
vehicles accelerating or traveling at speeds that are inconsistent
with a parking maneuver. This is particularly true if the vehicle
has a high vertical clearance and larger wheel diameters such as
a van or a sport utility vehicle. The lack of a vertical curb at the
sidewalk made hopping the wheel stop and direct access to the
sidewalk easier to accomplish by the Roulhac vehicle.
Expert Report, 8/30/2012, at 3.
8
is to prove a four
to six inch curb for a sidewalk, he does not provide the source of this
curb meets standard practice but a five inch wheel stop is insufficient. The
report provided no explanation of how a lower curb height would meet
engineering standards while a higher wheel stop would not.
Further, the report makes no mention of any standards regarding
wheel stops. Therefore, the report cannot show that the wheel stops were
improperly located or were of insufficient height. The report notes that
larger wheeled vehicles with higher ground clearance, such as vans or SUVs,
makes hopping the wheel stop easier. However, the report does not indicate
the ground clearance of or the size of tires associated with the Chrysler
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8
Technically, standard practice need not equate to relevant engineering
standards. Standard practice simply relates how most people put in a
sidewalk. Standard practice does not mean that other approaches are
inherently unsound or are below the standards of engineering.
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Caravan driven by Roulhac. Having provided no evidence of ground
clearance or tire size, a jury would be required to guess at the relevance of
this information.
when the accident occurred. Therefore, any commentary regarding the
efficiency of wheel stops and accelerating or speeding vehicles is irrelevant.
The report also states that the wheel stops did not prevent the bump
out from being struck by vehicles. However, the accident at issue here did
not occur at the bump out. Therefore, any failure to meet the applicable
standards at the bump out are not relevant to this accident.
The report also addresses the use of bollards:9
Bollards have been installed to protect private property on the
site. A well head located on the southeastern corner of the
property is shown as protected by four (4) painted, concrete
post bollards. There is also evidence in the photo that two
bollards have been removed.
Id. at 6.
The report provided no engineering standards for the use of bollards.
As noted previously, without a description of the appropriate standards,
there can be no showing of a deviation from those standards. Truax was
required to show either that the use of bollards was the engineering
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9
A bollard is a post, often made of concrete or metal used as a barrier
between people and/or property and cars.
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standard or that the use of wheel stops alone failed to meet the applicable
engineering standards. This paragraph does not address either of those
possibilities.
Finally, the report concludes, in relevant part:
If this site was brought up to standards to correct the site
deficiencies:
...
2. Sidewalks would be continuous and separated from the
parking field with vertical curb at sidewalk of at least 5 inches
and bollards would have been installed to protect pedestrians in
the same way that they have been installed on site to protect
property[.]
Id. at 8.
The conclusion opines that certain actions must be taken for the
pa
report demonstrated that no standards were ever set forth. The report
never provided any indication of the engineering standards for appropriate
use of wheel stops or where wheel stops were inappropriate. The report
never provided any indication of the engineering standards for the use of
engineering standards, or any identified standards, and therefore
represented a breach of the duty of care to Truax. As a matter of law, the
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Because Truax has provided no legal precedent requiring the use of
negligence on the part of either Wildwood or Vitiello for using wheel stops,
the grant of summary judgment was appropriate.
Order affirmed.
Judge Jenkins joins the memorandum.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2014
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