Fristic, C. & D. v. Maple Lawn Assoc. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CYNTHIA & DAVID FRISTIC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
MAPLE LAWN ASSOCIATES, INC. : No. 858 MDA 2019
Appeal from the Order Entered May 15, 2019
In the Court of Common Pleas of Juniata County Civil Division at No(s):
282-2014
BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 14, 2020
Appellants Cynthia and David Fristic appeal from the trial court’s order
granting summary judgment in favor of Appellee, Maple Lawn Associates
(Maple Lawn), and against Appellants in their slip-and-fall negligence action.
Appellants argue that the trial court erred in granting summary judgment
based on its ruling that the subject defect alleged to have caused Appellant
Cynthia Fristic’s (Mrs. Fristic) fall was trivial or open and obvious. For the
following reasons, we reverse and remand for further proceedings.
On September 25, 2012, Mrs. Fristic and her co-worker Jeremy Pierson
(Pierson) attended their company’s tour of Maple Lawn’s facility. At the end
of the tour, Mrs. Fristic fell while she and Pierson were walking back to Mrs.
Fristic’s car in Maple Lawn’s parking lot. As a result of her fall, Mrs. Fristic
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* Retired Senior Judge assigned to the Superior Court.
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suffered foot injuries requiring multiple surgeries and physical therapy.
Appellants, who are wife and husband, filed a complaint against Maple Lawn
and other defendants on September 11, 2014.1 Maple Lawn responded with
an answer with new matter on June 12, 2015.
During discovery, Maple Lawn’s counsel deposed Mrs. Fristic and
Pierson, and Mrs. Fristic’s counsel deposed Steven Ehrenzeller (Ehrenzeller),
president of Maple Lawn. Mrs. Fristic testified that on the day of her fall, she
and Pierson arrived at Maple Lawn at around 8:00 a.m., and that she parked
in Maple Lawn’s parking lot. Fristic Dep., 6/29/15, at 23. The two then walked
from Mrs. Fristic’s car, straight across the parking lot, and into Maple Lawn’s
main building where they met a group of their colleagues for a tour of the
facility. Id. at 24.
Around 1:00 p.m., Mrs. Fristic testified that she and Pierson began
walking back to her car. Id. at 27. Because the parking lot was more crowded
at that time, she and Pierson walked around the outside edge of the parking
lot near a white fence. Id. at 28. According to Mrs. Fristic, she “just fell.”
Id. at 27. When asked what caused the fall, she testified, “my foot lost
balance and I fell in a -- there was a hole, I guess.” Id. at 30. She was not
able to describe the dimensions of the hole but stated that the hole was “[b]ig
enough for my foot to go in it.” Id. at 31.
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1 Appellants sued multiple entities and individuals related to Maple Lawn
alleging negligence for personal injuries, loss of consortium, and related
claims. Appellants stipulated to the withdrawal of their claims against all other
defendants except Appellee, Maple Lawn. N.T., 4/15/19, at 2.
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During her deposition, Maple Lawn’s counsel presented Mrs. Fristic with
several photographs of the parking lot, some of which counsel described as
showing a “repaired hole.” Id. at 44. The patched area in the photographs
measured approximately fourteen-and-a-half inches in diameter. Id. at 52.
Mrs. Fristic was uncertain if the pictures depicted the hole that caused her to
fall but asserted that they showed the path and area where she was walking.
Id. at 45.
Pierson, Mrs. Fristic’s co-worker, testified that they were walking along
the outer edge of the parking lot when Mrs. Fristic fell. Pierson Dep., 3/21/16,
at 9. Pierson did not see any problems on the ground as they were walking,
but after Mrs. Fristic fell he observed “an indentation in the pavement.” Id.
at 11-12. He described it as “a small indentation, maybe six to eight inches
in diameter, just a couple inches deep, almost like the pavement had settled
a little bit in that spot.” Id. at 11. When asked if it resembled a “dinner plate
or a bowl,” Pierson responded, “I would say a bowl.” Id. at 12.
During the depositions of Mrs. Fristic and Pierson, Maple Lawn’s counsel
elicited testimony that the weather was clear on the afternoon of the fall.
Moreover, they both testified that there was no trash or debris that obstructed
their view of the “hole” or bowl-shaped indentation.
Ehrenzeller, Maple Lawn’s president, testified that he invited Mrs.
Fristic’s group to tour the facility. Ehrenzeller Dep., 7/27/15, at 11. He noted
that the parking lot holds approximately twenty-five cars, it is the only parking
lot at the facility, and he also parks there. Id. at 12. Ehrenzeller
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acknowledged that he saw a hole along the eastern side of the lot and that
there was a second larger hole a few feet away. Id. at 17. He stated that he
saw the holes “every day” but did not have them repaired because “[t]hey
didn’t seem to be of size to be a hazard.” Id. Ehrenzeller further testified
that no cones or signs were used to alert invitees of the presence of holes in
the parking lot. Id. at 26. Following Mrs. Fristic’s fall, Maple Lawn’s safety
committee met and discussed the holes which Ehrenzeller subsequently
repaired.2 Id. at 17-18. The safety committee’s meeting minutes addressed
Mrs. Fristic’s fall as well as the holes in the parking lot and noted that “We are
also trying to determine why it [the parking lot pavement] keeps
sinking/settling.” Id. at 19. Ehrenzeller confirmed that holes in the parking
lot existed prior to Mrs. Fristic’s fall. Id.
On January 11, 2019, Maple Lawn filed the instant motion for summary
judgment on all claims against Maple Lawn and all other defendants
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2 We note that Pennsylvania Rule of Evidence 407 recognizes:
When measures are taken by a party that would have made an
earlier injury or harm less likely to occur, evidence of the
subsequent measures is not admissible against that party to prove
negligence, culpable conduct, a defect in a product or its design,
or a need for a warning or instruction.
But the court may admit this evidence for another purpose such
as impeachment or--if disputed--proving ownership, control, or
the feasibility of precautionary measures.
Pa.R.E. 407 (formatting altered).
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contending that they were not liable for Mrs. Fristic’s fall because the alleged
condition in the parking lot was a trivial defect for which they owed no duty
to protect. Alternatively, Maple Lawn asserted that the condition was open
and obvious. Appellants filed an answer to Maple Lawn’s motion for summary
judgment.3 On May 15, 2019, the trial court granted Maple Lawn’s motion
and filed an opinion in support of its order. Appellants filed a timely notice of
appeal on May 28, 2019, and a timely Pa.R.A.P. 1925(b) statement on May
31, 2019.
In its Rule 1925(a) opinion, the trial court explained that it found the
defect to be “trivial” or “open and obvious.” Trial Ct. Op., 5/15/19, at 4-5.
On the one hand, the trial court “acknowledge[d] the presence of a slight
circular depression measuring approximately fourteen inches wide.” Id. at 4.
The trial court noted the testimony of Mrs. Fristic and Pierson and found that
“the defect in question [was] not patently dangerous, and not so large as to
appear dangerous to the ordinary pedestrian.” Id. (citation omitted).
Additionally, the trial court found that, “[i]t is also clear from these
pictures, and the testimony provided, that the defect in question was open
and obvious . . . and that [Maple Lawn was] under no obligation to warn [Mrs.
Fristic] about the defect because it was so obvious to [her] that [she] may be
expected to discover [it].” Id. Noting that “the weather was clear that day
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3 As necessary, we discuss and distinguish cases cited by the parties
concerning the triviality and obviousness of the alleged defective condition
purported to have caused Mrs. Fristic’s fall.
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with no debris blocking their view,” the trial court concluded that Maple Lawn
was “under no obligation to warn [Mrs. Fristic] about the defect and that
“[Maple Lawn’s] failure to cure the defect in question is clearly nonfeasance.”
Id. at 5. (some formatting altered). Lastly, the trial court explained that there
is no genuine issue of a material fact regarding the other Defendants’
involvement in Mrs. Fristic’s fall because Maple Lawn “is the sole entity
responsible for the parking lot in question.” Id. at 5.
Appellants raise four questions on appeal.
[1]. Did the trial court commit an error of law and/or abuse its
discretion when the trial court improperly applied the standard for
summary judgment?
[2]. Did the trial court commit an error of law and/or abuse its
discretion when the trial court granted summary judgment based
on the issue of a trivial defect by finding that a fourteen inch,
bowl-shaped hole was a trivial defect despite case law that leaves
that determination to the jury?
[3]. Did the trial court commit an error of law and/or abuse its
discretion then the trial court granted summary judgment based
on the principle that the defect that caused [Mrs. Fristic’s] fall was
open and obvious, while at the same time holding that “the defect
is clearly not so large and unusual as to appear dangerous to the
ordinary person”?
[4]. Did the trial court commit an error of law and/or abuse its
discretion when the trial court addressed an argument that had
already been removed from the action by a stipulation of parties
prior to oral argument?
Appellants’ Brief at 6 (formatting altered).
The standards governing the appellate review of an order granting
summary judgment are well established. “Summary judgment is appropriate
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only in those cases where the record clearly demonstrates that there is no
genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law.” Brewington v. City of Phila., 199 A.3d 348,
352 (Pa. 2019) (citation omitted); see Pa.R.C.P. 1035.2(1).
Our 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 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 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.
Wright v. Misty Mountain Farm, LLC, 125 A.3d 814, 818 (Pa. Super. 2015)
(citations omitted).
To establish a claim of negligence, a plaintiff must show that (1) the
defendant had a duty to act in conformity with a standard of conduct, (2) the
defendant breached that duty, (3) the plaintiff suffered harm, and (4) that
breach was the cause of the plaintiff’s harm. Krentz v. Consol. Rail Corp.,
910 A.2d 20, 27 (Pa. 2006). In cases of premises liability, “[t]he standard of
care a possessor of land owes to one who enter upon the land depends upon
whether the person entering is a trespasser, licensee, or invitee.” Carrender
v. Fitterer, 469 A.2d 120, 123 (Pa. 1983) (citation omitted). In the instant
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case, Mrs. Fristic was a business invitee on Maple Lawn’s property in that she
was on a company tour of the Maple Lawn facility at the invitation of
Ehrenzeller. See Ehrenzeller Dep. at 11.
This Court has maintained that “the duty owed to a business invitee is
the highest owed to any entrant upon land.” Reinoso v. Heritage
Warminster SPE LLC, 108 A.3d 80, 85 (Pa. Super. 2015) (en banc) (citation
omitted). Our Supreme Court in Carrender explained the duty owed an
invitee.
Possessors of land owe a duty to protect invitees from foreseeable
harm. With respect to conditions on the land which are known to
or discoverable by the possessor, the possessor is subject to
liability only if he,
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitee, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against
the danger.
Thus, as is made clear by section 343A of the Restatement,
a possessor of land is not liable to his invitees for physical
harm caused to them by any activity or condition on the land
whose danger is known or obvious to them, unless the
possessor should anticipate the harm despite such
knowledge or obviousness.
Carrender, 469 A.2d at 123 (citations omitted and formatting altered).
The comments to section 343 of the Restatement further state that
an invitee is entitled to expect that the possessor will take
reasonable care to ascertain the actual condition of the premises
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and, having discovered it, either to make it reasonably safe by
repair or to give warning of the actual condition and the risk
involved therein. Therefore, an invitee is not required to be on
alert to discover defects which, if he were a mere licensee, . . . he
might be negligent in not discovering. This [expectation] is of
importance in determining whether the visitor is or is not guilty of
contributory negligence in failing to discover a defect, as well as
in determining whether the defect is one which the possessor
should believe that his visitor would not discover, and as to which,
therefore, he must use reasonable care to warn the visitor.
Restatement (Second) of Torts § 343 cmt. d. (formatting altered).
First, Appellants argue that the trial court “invaded the province of the
jury” by making factual determinations as to whether the defect was trivial or
open and obvious. Appellants’ Brief 15. Further, Appellants contend in their
second issue that the trial court’s characterization of the defect as “slight” is
a factual determination for a jury to decide. Id. Appellants assert that the
trial court erred in concluding that “the subject fourteen-inch, bowl-shaped
hole is [a de minimis] defect.” Id. at 24. Appellants maintain that the
question of whether a defect is sufficient to impose liability on a property
owner should be resolved by a jury. Id. at 21 (citation omitted).
In response, Maple Lawn argues that the trial court properly applied the
summary judgment standard. Maple Lawn’s Brief at 8. Maple Lawn asserts
that the trial court’s characterization of the defect as “slight” is supported by
the evidence. Id. at 12. Maple Lawn cites the testimony of Pierson that the
defect was between six and eight inches wide and approximately two inches
deep. Id. at 11. Maple Lawn contends that the only evidence showing that
the defect might be larger was presented in photographs that were not
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properly authenticated as fair and accurate depictions of the defect that
allegedly caused Mrs. Fristic to fall. Id.
Maple Lawn continues that because the defect was trivial, it “owed no
duty to [Mrs. Fristic] to prevent any harm that might have occurred from
walking on [the] alleged defect.” Id. at 12. Comparing the instant case to
Bosack v. Pittsburgh Rys. Co., 189 A.2d 877 (Pa. 1963), Maple Lawn
maintains that as a matter of law, the defect is appropriately classified as
trivial due to its size as described by Pierson. Id. at 14. Maple Lawn
emphasizes that the defect was not “magnified in danger by a poorly lit or
dark area” but was instead a “cracked portion of unsettled pavement.” Id. at
21.
As to trivial defects, this Court has stated:
Although property owners have a duty to maintain their sidewalks
in a safe condition, property owners are not responsible for trivial
defects that exist in the sidewalk. Our courts have held that an
elevation, depression, or irregularity in a sidewalk or in a street or
highway may be so trivial that, as a matter of law, courts are
bound to hold that there was no negligence in permitting such
depression or irregularity to exist.
Mull v. Ickes, 994 A.2d 1137, 1140 (Pa. Super. 2010).
In German v. City of McKeesport, 8 A.2d 437 (Pa. Super. 1939), the
plaintiff was attempting to cross the street “not at the regular crossing place”
with her arms full of packages. German, 8 A.2d at 439. The heel of the
plaintiff’s shoe got caught as she stepped off the sidewalk causing her to fall.
Id. When she looked to see what caused her fall, she found her heel print in
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“the dirt or earth which had filled up even a break, imperfection or irregularity
in the sidewalk.” Id. The imperfection was fourteen to sixteen inches long,
two inches wide, and “close to an inch” in depth. Id. The imperfection had
been filled so that it was flush with the rest of the sidewalk and neither the
hole nor the filling was apparent. Id. The municipality was the only named
defendant, and this Court concluded, “it was not such a defect in the sidewalk
as imposed liability on the property owner for failure to remedy or repair it.”
Id. at 440. This Court, in German, also reasoned that the imperfection was
only two inches wide, an inch deep, and situated fifteen feet from the
crosswalk. Id. at 441. Accordingly, following a jury verdict and judgment in
favor of the plaintiff, the German Court reversed the judgment, reasoning
that the municipality was not liable because the defect “presented no aspect
of danger” whether it was filled or not. Id.
In Reinoso, this en banc Court reversed the trial court’s grant of
summary judgment in favor of the defendants, reasoning that a genuine issue
of material fact existed as to whether a 5/8ths of an inch height differential
between sidewalk panels constituted a trivial defect. Reinoso, 108 A.3d at
90. The plaintiff, a business invitee of the defendants, tripped and fell on a
raised section of the sidewalk. Id. at 82. In opposition to the defendants’
motion for summary judgment, the plaintiff presented expert testimony
indicating that the height differential, which varied between 1-1/8th inches
and 5/8ths of an inch at different points, exceeded the safety standards and
presented a tripping hazard. Id. at 86. Further, the Reinoso Court
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considered the deposition testimony of a co-defendant indicating that he
brought the defect to the attention of the management company. Id.
Considering these circumstances, the Court held that “whether a sidewalk
defect is trivial is not simply a matter of the size or measurement of the defect
when there are genuine issues of material fact based on the surrounding
circumstances.” Id. at 89-90.
We conclude that this case is more akin to Reinoso. Here, Maple Lawn,
the parking lot owner, owed Mrs. Fristic, a business invitee, the highest duty
of care. Mrs. Fristic testified that her foot was ensnared in a defect in Maple
Lawn’s parking lot. Based on the record, the approximate size of the defect
is unclear. Mrs. Fristic stated that it was large enough for her foot to “go in
it.” Fristic Dep. at 31. Pierson described the defect as a bowl-shaped
indentation and roughly six to eight inches in diameter and a couple inches
deep. Pierson Dep. at 11. Exhibits 2 through 6, attached to Mrs. Fristic’s
deposition are photographs showing a filled hole measuring approximately
fourteen inches wide. Fristic Dep. Ex. 2-6.
Further, even accepting the trial court’s characterization of the hole as
“slight” based on Mrs. Fristic and Pierson’s depositions, the evidence indicates
that the defect was known to Maple Lawn and subsequently repaired.
Ehrenzeller testified that he knew about several holes in the parking lot and
walked past them daily. Ehrenzeller Dep. at 17. Yet, no repairs were made
to the parking lot until after Mrs. Fristic’s fall. Id. Viewed in the light most
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favorable to Appellants, this is undisputed evidence that Ehrenzeller had
actual notice of the defective condition.
Therefore, viewing the facts in the light most favorable to Appellants as
the non-movants, Appellants have identified sufficient material issues of fact
in the record for a reasonable jury to decide whether the subject defect was
trivial and whether Maple Lawn had sufficient notice that the defect presented
an unreasonable risk of harm to invitees for which it had the duty to take
feasible precautionary measures. Accordingly, we agree with Appellants that
the trial court erred in determining that the defect was trivial as a matter of
law and that summary judgment was improperly granted concerning this
issue.
Next, Appellants argue that the trial court improperly granted summary
judgment based on the principle that the defect was open and obvious.
Appellants’ Brief at 24. Appellants contend that “reasonable minds differ as
to whether the [defect] was open and obvious” at the time of Mrs. Fristic’s
fall. Id. at 25-26. According to Appellants, “the trial court has contradicted
itself” by finding that the hole was both open and obvious and “not so large
and unusual as to appear dangerous to the ordinary pedestrian.” Id. at 27.
Appellants assert that the trial court’s finding that the defect was open
and obvious would be contrary to prior cases and require business invitees “to
walk with their gaze fixed solely on the ground in front of them in order to
recover.” Id. Appellants maintain that Mrs. Fristic should not be responsible
for avoiding the danger on a property “when the president/owner of said
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property had knowledge that the [defect] existed prior to [Mrs. Fristic’s] fall,
and testified that he saw it ‘every day’ and yet, did nothing to remedy it.” Id.
at 30.
Maple Lawn contends that as a matter of law, it cannot be held liable
because the defect was open and obvious to Mrs. Fristic. Maple Lawn’s Brief
at 22. Citing the Restatement (Second) of Torts, Maple Lawn argues that a
land possessor does not owe a duty to warn an invitee “against dangers which
are known to the visitor, or so obvious to him that he may be expected to
discover them.” Id. 23-24. Maple Lawn also notes that “[o]ordinary
distractions from open and obvious risks of harm will not create a duty to a
person being distracted when there otherwise would be none.” Id. at 23.
Accordingly, Maple Lawn maintains that despite the presence of traffic in the
parking lot, Mrs. Fristic should have seen the defect and avoided it. Id. at 29.
Addressing the trial court’s finding that the defect was both trivial and
open and obvious, Maple Lawn argues that summary judgment is properly
granted where the defect is found to be trivial or where the defect is found to
be open and obvious. Id. at 22. Accordingly, Maple Lawn contends that the
trial court properly granted the motion “on an ample record and for two legally
valid grounds.” Id. at 33.
Generally, “a possessor of land is not liable to his invitees for physical
harm caused to them by any activity or condition on the land whose danger is
known or obvious to them.” Carrender, 469 A.2d at 123 (citation omitted).
However, the comments to the Restatement (Second) of Torts § 343A explains
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that a possessor of land is not relieved of the duty to exercise reasonable care
if the possessor can and should expect that the dangerous condition will cause
harm to the invitee despite its known or obvious danger:
Such reason to expect harm to the visitor from known or obvious
dangers may arise, for example, where the possessor has reason
to expect that the invitee’s attention may be distracted, so that
he will not discover what is obvious, or will forget what he has
discovered, or fail to protect himself against it. . . . In such cases
the fact that the danger is known, or is obvious, is important in
determining whether the invitee is to be charged with contributory
negligence, or assumption of risk.
Restatement (Second) of Torts § 343A cmt. f. (citation omitted).
“A danger is deemed to be obvious when both the condition and the risk
are apparent to and would be recognized by a reasonable [person], in the
position of the visitor, exercising normal perception, intelligence, and
judgment.” Carrender, 469 A.2d at 123-24 (citation omitted and formatting
altered). For a danger to be considered “known,” it must be both known to
exist and recognized as dangerous. Id. at 124. “Although the question of
whether a danger was known or obvious is usually a question of fact for the
jury, the question may be decided by the court where reasonable minds could
not differ as to the conclusion.” Id. (citation omitted).
In Carrender, a patient of a chiropractic clinic slipped on a patch of ice
in the clinic’s parking lot and sued seeking damages. Id. at 121. The parking
lot was free of ice and snow, except for the parking space the plaintiff selected.
Id. Before opening her car door, the plaintiff noted the slippery ground
condition outside the car. Id. at 121-22. Further, the plaintiff, who wore a
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prosthesis was aware of the amplified risk it presented to her and chose not
to move to another open parking space. Id. at 122. Following a jury verdict
in which the defendant was found 65% negligent, and the plaintiff was found
35% negligent, the plaintiff appealed to this Court, which affirmed. Id. at
121. The plaintiff appealed to our Supreme Court, which concluded, as a
matter of law, that the defendant clinic did not have a duty to warn the plaintiff
of the ice patch because the plaintiff’s “own testimony showed not only that
the existence of the ice was obvious to a reasonably attentive invitee, but also
that [the plaintiff] herself was aware of the ice and appreciated the risk of
traversing it.” Id. at 123-24. Therefore, our Supreme Court remanded with
instructions that judgment be entered in favor of the defendant. Id. at 121.
In Donlin v. J.J. Newberry Co., 466 A.2d 174 (Pa. Super. 1983), the
plaintiff, a store patron, caught her foot on a metal strip protruding from the
sidewalk as she exited the store. Donlin, 466 A.2d at 175. At closing time,
the plaintiff was asked to exit through a different door than the one she
entered in approximately half an hour before. Id. As she approached the
exit, the plaintiff noticed the concrete outside the exterior door was crumbling
but did not see the metal band. Id. at 175-76. After a jury verdict in favor
of the plaintiffs, the defendant appealed, and this Court affirmed, reasoning
that the plaintiff did not voluntarily expose herself to the risk:
Although we agree with [the defendants’] averment that
pedestrians “must look where they are going,” we will not hold
them responsible for walking so tentatively as to detect nearly-
latent defects. Such action exceeds the burden placed upon the
ordinarily prudent man under these circumstances.
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Id. at 176 (citations omitted).
Instantly, based on the multiple descriptions of the parking lot holes in
the record, we agree with Appellants that they have identified material issues
of fact such that reasonable minds could differ as to whether or not the subject
defect in Maple Lawn’s parking lot was open and obvious. See Carrender,
469 A.2d at 124. Mrs. Fristic testified that she did not see the hole until after
she fell, and that the hole was big enough for her foot to go in it. Fristic Dep.
at 31. She also testified that this was her first time at Maple Lawn’s place of
business, and that she and Pierson walked a different route to return to her
car because of the heavy traffic in the parking lot at the time of her fall. Id.
at 28. Pierson described the hole as a small indentation about six to eight
inches in diameter, and a couple of inches deep that resembled a dinner bowl.
Pierson Dep. at 11.
For the foregoing reasons, we find that genuine issues of fact exist for
a jury to determine whether the defect was open and obvious such that Mrs.
Fristic should have observed the hole in the parking lot prior to her fall and
appreciated the danger it posed. Therefore, the trial court improperly granted
summary judgment on this issue. See Carrender, 469 A.2d at 124.
Accordingly, viewing the record in the light most favorable to Appellants,
as the non-movants, and for the reasons herein, we find there are genuine
issues of material fact as to whether the parking lot defect was trivial, or open
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and obvious.4 Accordingly, we reverse the trial court’s order granting
summary judgment and remand for further proceedings consistent with this
memorandum.
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/14/2020
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4 Appellants assert that the trial court’s decision to grant summary judgment
was improperly based on oral testimony in violation of Nanty-Glo v.
American Surety Co. of New York, 163 A. 523 (Pa. 1932). Appellants’ Brief
at 16. Maple Lawn contends that Appellants overlook the exception to the
Nanty-Glo rule. Maple Lawn’s Brief at 9.
Additionally, Appellants contend that the trial court, in its opinion, improperly
addressed the issue of summary judgment as to entities previously removed
from the litigation by stipulation of the parties. Appellants’ Brief at 30-31.
Maple Lawn posits that the trial court’s gratuitous discussion concerning the
additional defendants was not error. Maple Lawn’s Brief at 32-33. In light of
our conclusion that the trial court erred in concluding that the defect was trivial
and open and obvious, we need not address these arguments.
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