Brock, R. v. Turkey Hill Minit Markets ( 2019 )

J. A12036/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
REBECCA BROCK, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
TURKEY HILL MINIT MARKETS D/B/A :
TURKEY HILL, LP AND THE KROGER CO : No. 3461 EDA 2017
AND D670 KROGER C STRES/TURKEY :
HILL/MINIT MR :
Appeal from the Order Entered September 8, 2017,
in the Court of Common Pleas of Northampton County
Civil Division at No. C48-CV-2015-9738
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 24, 2019
Rebecca Brock (“appellant”) appeals from the September 8, 2017 order
of the Court of Common Pleas of Northampton County entering summary
judgment in favor of Turkey Hill Minit Markets, the Kroger Co., and D670
Kroger C Stres/Turkey Hill/Minit Mr’s (collectively, “appellees”) and against
appellant. After careful review, we affirm.
The trial court provided the following recitation of the relevant facts:
[Appellant] alleges that she was injured at
approximately 3:30 p.m. [on January 5, 2014,] after
she exited her vehicle and was walking towards the
store entrance. Christopher Marsh, [appellant’s]
boyfriend and passenger, testified that a “light mist”
was falling as they arrived at the Turkey Hill. He
further testified that he observed ice “pretty much
everywhere. There was ice all over the parking lot.”
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[Appellant] herself testified that the area where she
fell was covered in smooth, shiny ice, such that the
asphalt appeared wet. She did not notice the
condition of the rest of the parking lot. After she fell,
Mr. Marsh, the EMTs and the police were sliding on the
ice while trying to help [appellant]. Melissa Olsen, the
Manager in Training for that Turkey Hill location,
arrived at work approximately thirty minutes prior to
[appellant’s] fall and described the conditions of her
commute as “horrible” and the weather at that time
as cold, rainy and snowy. Additionally, a
meteorological report states that on the date of the
incident, sleet/freezing rain fell in the area from
approximately 12:22 p.m. to 3:45 p.m. with air
temperatures between 23 and 29 degrees.
Trial court order and opinion, 9/8/17 at unnumbered *3 (citations omitted).
On March 25, 2015, appellant filed a complaint sounding in negligence
with the Court of Common Pleas of Philadelphia County. The Philadelphia
County court granted appellees’ petition to transfer venue for forum
non conveniens on August 28, 2015, transferring the case to the trial court.
Following discovery, appellees filed a motion for summary judgment with an
accompanying brief in support on January 30, 2017. Oral argument was held
before the trial court on July 25, 2017. On September 8, 2017, the trial court
granted appellees’ motion for summary judgment.
On October 6, 2017, appellant timely filed a notice of appeal to this
court. The trial court ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) on October 25, 2017,
and appellant timely complied on November 14, 2017. The trial court filed a
statement on November 17, 2017, pursuant to Pa.R.A.P. 1925(a), in which it
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incorporated the content of its September 8, 2017 opinion and order entering
summary judgment in favor of appellees.
Appellant raises the following issues for our review:
1. Did the Trial Court err in finding that the “hills
and ridges” doctrine applied to the facts of this
case when [appellant] presented evidence
showing that the icy conditions were not the
result of an entirely natural accumulation as a
result of [appellees’] employees plowing and
salting the parking lot prior to [appellant’s] fall?
2. Did the Trial Court err in finding that the “hills
and ridges” doctrine applied to the facts of this
case in light of testimony contradicting the claim
that generally icy conditions were present at the
time of [a]ppellant’s slip and fall?
3. Did the Trial Court err in granting [appellees’]
Motion for Summary Judgment when
[appellant] offered evidence of insufficient
salting of the parking lot?
Appellant’s brief at 4.
In reviewing an appeal from the trial court’s grant of a motion for
summary judgment, we are governed by the following standard of review:
[O]ur standard of review of an order
granting summary judgment requires us
to determine whether the trial court
abused its discretion or committed an
error of law. Our scope of review is
plenary. In reviewing a trial court’s grant
of summary judgment, 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
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of a genuine issue of material fact must
be resolved against the moving party.
Only where there is no genuine issue of
material fact and it is clear that the
moving party is entitled to a judgment as
a matter of law will summary judgment be
entered. All doubts as to the existence of
a genuine issue of a material fact must be
resolved against the moving party.
***
Upon appellate review, we are not bound
by the trial court’s conclusions of law, but
may reach our own conclusions.
Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798
(Pa.Super. 2012) (internal citations omitted).
Rule of Civil Procedure 1035 governs motions for
summary judgment and provides, in relevant part, as
follows:
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
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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. This Court has explained the
application of this rule as follows:
Motions for summary judgment
necessarily and directly implicate the
plaintiff’s proof of the elements of a 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. In
other words, 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 and
the moving party is entitled to judgment
as a matter of law, summary judgment is
appropriate. Thus, a record that supports
summary judgment either (1) shows the
material facts are undisputed or
(2) contains insufficient evidence of facts
to make out a prima facie cause of action
or defense.
Petrina, 46 A.3d at 798.
Criswell v. Atlantic Richfield Co., 115 A.3d 906, 908-909 (Pa.Super. 2015).
In their motion for summary judgment, appellees relied on the hills and
ridges doctrine.
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The hills and ridges doctrine, “as defined and applied
by the courts of Pennsylvania, is a refinement of
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-[8]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.
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 [v. Presque Isle Condominiums Unit
Owners Ass’n, Inc., 828 A.2d 1114,] 1117
[(Pa.Super. 2003)] (quotations omitted).
As this Court has held, “the hills and ridges doctrine
may be applied only in cases where the snow and ice
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complained of are the result of an entirely natural
accumulation following a recent snowfall[.]” Harvey
v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526
(Pa.Super. 2006) (quotation marks, quotation, and
emphasis omitted). Further, “the protection afforded
by the doctrine is predicated on the assumption that
‘[t]hese formations are [n]atural phenomena
incidental to our climate[.]’” Id. (quotation and
citation omitted).
Collins v. Philadelphia Suburban Dev. Corp., 179 A.3d 69, 74 (Pa.Super.
2018).
The hills and ridges doctrine is not an absolute defense that can be used
by a property owner any time a plaintiff brings a cause of action sounding in
negligence as a result of a slip and fall on ice and/or snow. Indeed,
[t]his general “hills and ridges” rule is subject to a
number of [other] significant exceptions. Thus, proof
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), appeal denied,
608 A.2d 30 (Pa. 1992), quoting Bacsick v. Barnes, 341 A.2d 157, 160
(Pa.Super. 1975). See also Beck v. Holly Tree Homeowners Ass’n, 689
F. Supp.2d 756, 762-763 (E.D.Pa. 2010) (applying Pennsylvania law).
In the case before us, the trial court concluded that appellant “can point
to no evidence that would establish that the ice in the area where she fell was
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anything other than a natural accumulation and generally slippery as a result
of an ongoing weather event.” (Trial court order and opinion, 9/8/17 at
unnumbered *5.) The trial court further determined that when “viewing the
evidence in the light most favorable to [appellant] as the non-moving party,
it is clear that genuine issues of material fact do not exist.” (Id. at
unnumbered *4.) We agree.
Appellees produced an expert report from John R. Scala, PhD CCM1
(“Dr. Scala”). In his report, Dr. Scala noted that a winter storm caused six to
eight inches of snow to fall in Northampton County between January 2 and
January 3, 2014, with bitterly cold air settling over the area until the morning
of January 5, 2014. (Scala Report at *2; R.R. at 52a.)
The frigid air mass produced record low, sub-zero
temperatures at [Lehigh Valley International Airport]
from January 3 through January 5, 2014. The
prolonged cold resulted in 45 consecutive hours with
an air temperature at or below 20°F and
98 consecutive hours of sub-freezing temperatures.
These weather conditions froze the asphalt surface
present in the parking lot of the Turkey Hill Minit Mart
as well as several inches below presenting an ideal
design for instantaneous freezing of liquid
precipitation falling upon it.
Scala Report at *2; R.R. at 53a. These conditions caused raindrops to “freeze
immediately upon contact with the sub-freezing ground leading to a rapid
accumulation of ice.” (Id. at *2; R.R. at 53a.)
1 Dr. Scala is a certified consulting meteorologist.
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Dr. Scala also elaborated on the specific weather conditions present on
the day and time of the incident.
Doppler radar from KDIX provided a more accurate
assessment of the precipitation coverage, intensity,
and start and stop times relative to the automated
observations from [Lehigh Valley International
Airport]. The data indicated the precipitation began
between 12:12 pm and 12:22 pm on January 5, 2014
in the vicinity of the Turkey Hill. Steady light to
moderate freezing rain persisted for more than three
hours before ending between 3:45 pm and 3:55 pm.
The air temperature rose from 23°F to 29°F during
this time, based on the observations from [Lehigh
Valley International Airport].
Id. at *2; R.R. at 53a. Ultimately, Dr. Scala concluded that the weather
conditions the day of the incident provided an “ideal design for the
instantaneous freezing of liquid precipitation falling upon [the surface of the
Turkey Hill parking lot.]” (Id. at *2; R.R. at 53a.)
Appellant did not provide any expert testimony or report to rebut
Dr. Scala’s conclusions. The facts and evidence viewed in the light most
favorable to appellant reflect that appellant failed to produce evidence of facts
essential to the cause of action which would necessitate the issues being
submitted to a jury. See Pa.R.Civ.P. 1035.2(2). Accordingly, we find that the
trial court did not err when it granted appellees’ motion for summary
judgment.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/19
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