Sparks, W. v. Conley-Beaver Corp. ( 2021 )

J-A09002-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WANDA SPARKS IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
CONLEY-BEAVER CORP., T/D/B/A SUPER
8 HOTEL
Appellee No. 910 WDA 2020
Appeal from the Order Dated August 6, 2020
In the Court of Common Pleas of Beaver County
Civil Division at No.: 10936-2017
BEFORE: STABILE, J., MCCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED: June 11, 2021
Appellant Wanda Sparks appeals from the August 6, 2020 order of the
Court of Common Pleas of Beaver County (“trial court”), which granted
summary judgment in favor of Appellee Conley-Beaver Corp., t/d/b/a Super
8 Hotel (the “Hotel” or “Super 8”) and dismissed Appellant’s negligence
complaint. Upon review, we reverse and remand.
On July 14, 2017, Appellant initiated the instant civil action by filing a
writ of summons. On October 10, 2017, Appellant filed a complaint against
the Hotel, alleging a single cause of action for negligence. Appellant alleged
that, on July 19, 2015, she “was a paying guest of [the Hotel].” Complaint,
10/10/17, at ¶ 4. While in her room at the Super 8, Appellant allegedly
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* Retired Senior Judge assigned to the Superior Court.
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attempted to use the shower and “slipped and fell on the slick surface of the
bathtub/shower.” Id. at ¶ 5. Appellant alleged that the Hotel knew or should
have known of the dangerous or defective condition of the bathtub/shower
and thus was negligent in failing to ensure that it “was safe for invitees,” such
as her, for purposes of showering. Id. at ¶¶ 7-9. Specifically, Appellant
alleged that the Hotel failed “to properly clean the bathtub shower so as to
permit soap or cleaning residue to create a slick and slippery condition of the
bathtub shower.” Id. at ¶ 13(i). She further alleged that, as a direct result
of her fall, she suffered serious and permanent injuries, including fracture of
her right wrist and bruising and contusions to her body. Id. at ¶¶ 11-15.
On April 2, 2018, the Hotel filed an answer, denying the averments of
the complaint and asserting new matter. Following the completion of
discovery, the Hotel moved for summary judgment against Appellant, alleging
that Appellant “has not offered any evidence regarding the alleged dangerous
condition that caused her to fall, or has she offered any evidence of a defect
with the tub.” Motion for Summary Judgment, 3/17/20, at ¶ 7. The Hotel
further alleged that “slipping in a tub is an expected and known danger that
one should protect one’s self against.” Id. at ¶ 8. The Hotel claimed that
Appellant was not entitled to relief because she could not establish a prima
facie case for negligence. Id. at ¶ 9. According to the Hotel, Appellant “failed
to offer any evidence showing (1) a dangerous condition with the tub or (2) a
defective condition with the tub.” Id.
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Following Appellant’s response to the Hotel summary judgment motion,
the trial court, on April 14, 2020, issued an order permitting additional
discovery limited to deposing two employees of the Hotel. Thereafter, on July
20, 2020, Appellant filed a supplemental brief in opposition to the Hotel’s
summary judgment motion. In support, Appellant highlighted the late
deposition testimony of the two employees who purportedly corroborated
Appellant’s allegations, i.e., that the Hotel was aware of the dangerous
condition of the bathtub and that the application of a cleaning agent rendered
the tub unreasonably slippery at the time of her fall.
On August 6, 2020, following a hearing, the trial court granted the
Hotel’s motion for summary judgment as a matter of law. In so doing, it
reasoned:
The evidence offered by deposition testimony indicates that
[Appellant] turned the shower on and adjusted the temperature,
then she put one foot in and then just fell out of the tub.
[Appellant] is unsure of which foot slipped – the one in the tub or
the one that remained outside the tub. [Appellant] also stated
that she never physically entered the tub. When asked why she
slipped, she stated that the tub was slippery. Upon reporting the
fall to the front desk, [Appellant] stated that she was told by the
front desk receptionist that glass cleaner is used to clean the tubs.
[Appellant] argues that the alleged use of Windex caused an
unreasonably slippery condition of the bathtub.
Taken collectively, [Appellant] has maintained that she is not sure
which foot actually caused her to slip and fall. [She] has offered
no direct evidence that any sort of cleaner or slippery substance
of any kind was in the bathtub/shower, aside from the water that
she turned on just prior to attempting to enter the
bathtub/shower. . . . There has been no evidence of a defect of
the bathtub/shower. Furthermore, [Appellant] ha[s] alleged
nothing beyond the possibility that a cleaning agent may have
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been in the bathtub/shower when she entered, but that mere
possibility has not been established to be true. Furthermore, even
if the presence of glass cleaner was proven, there has been no
evidence indicating how that made the bathtub/shower any more
slippery.
Trial Court Opinion, 8/6/20, at 3-4 (record citations, citations and quotation
marks omitted). Based on the foregoing, the trial court concluded:
[Appellant] ha[s] produced no evidence that [the Hotel] failed to
meet its duty of care or that such failure caused [her] injuries.
There has been no evidence to establish that any sort of cleaner
was present in the bathtub/shower at the time [Appellant] slipped
and fell. Even if [Appellant] proved a cleaning agent was present,
there has been no evidence of whether or not that cleaning agent
makes the bathtub/shower more slippery. Furthermore,
[Appellant] is unable to state with certainty whether or not the
slip and fall was caused by the foot inside of the bathtub/shower,
or the one that remained on the outside of the bathtub/shower.
Id. at 4-5. Appellant appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
On appeal, Appellant presents three issues for our review, which we
reproduce verbatim:
I. Whether the trial court erred in finding that [the Hotel] is
entitled to summary judgment where the record, when viewed
most favorably to Appellant, supports a finding that Appellant
articulated how and what caused her fall and where the trial court
erred in failing to consider and properly apply material facts of
record, including [Appellant’s] testimony about how and why she
fell.
II. Whether the trial court erred in finding that [the Hotel] is
entitled to summary judgment where the record, when viewed
most favorably to Appellant, supports a finding that [the Hotel]
knowingly allowed a dangerous condition, unrinsed cleaner on a
bathtub, to exist causing Appellant to fall and where the trial court
erred in failing to consider and properly apply material facts of
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record, including [the Hotel] employee’s testimony admitting that
she does not rinse the cleaner from the bathtubs after wiping them
down.
III. Whether the trial court erred in finding that [the Hotel] is
entitled to summary judgment where the record, when viewed
most favorably to Appellant, established facts from which a causal
connection may be found have been testified to with sufficient
clearness and definiteness that a layman of ordinary affairs of life
could infer the cause from the effect, and that unrinsed cleaner on
a bathtub causes a slippery and defective condition of the
property.
Appellant’s Brief at 4.
For purposes of disposition, we combine Appellant’s first two issues.
Appellant argues that the trial court erred in granting the Hotel’s motion for
summary judgment because genuine issues of material fact exist. Specifically,
she claims that evidence of record demonstrates how she fell, and what
caused her fall. Appellant also claims that the Hotel was aware of the
dangerous condition of the tub at the time of her fall because one of its
employees admitted to using a cleaning agent—possibly a glass cleaner—to
clean the bathtub and wiping it on the tub’s surface. Id. at 8.
We review a challenge to the entry of summary judgment as follows:
[We] may disturb the order of the trial court only where it is
established that the court committed an error of law or abused its
discretion. As with all questions of law, our review is plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. See Pa.R.C.P. No. 1035.2. The rule
[provides] that where there is no genuine issue of material fact
and the moving party is entitled to relief as a matter of law,
summary judgment may be entered. Where the nonmoving party
bears the burden of proof on an issue, he may not merely rely on
his pleadings or answers in order to survive summary judgment.
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Failure of a non-moving party to adduce sufficient evidence on an
issue essential to his case and on which he bears the burden of
proof establishes the entitlement of the moving party to judgment
as a matter of law. Lastly, we will review the record in the light
most favorable to the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)
(citation omitted; brackets in original).
Pennsylvania law burdens a plaintiff on a negligence claim to
successfully establish the proverbial four elements: “(1) a duty or obligation
recognized by law; (2) a breach of that duty; (3) a causal connection between
the conduct and the resulting injury; and (4) actual damages.” Estate of
Swift by Swift v. Northeastern Hosp., 690 A.2d 719, 722 (Pa. Super.
1997), appeal denied, 701 A.2d 577 (Pa. 1997). “The burden of proving the
existence of negligence rests upon the party who has asserted it.” Schmoyer
by Schmoyer v. Mexico Forge, Inc., 649 A.2d 705, 707 (Pa. Super. 1994).
“The mere fact that an accident has occurred does not entitle the injured
person to a verdict. A plaintiff must show that the defendant owed a duty of
care, and that this duty was breached.” Rauch v. Mike-Mayer, 783 A.2d
815, 824 n.8 (Pa. Super. 2001) (internal citations omitted), appeal denied,
793 A.2d 909 (Pa. 2002).
The parties here agree that Appellant was a business invitee at the time
of her injury. N.T. Hearing, 7/20/20, at 4. In Gutteridge, we recognized:
The duty of care owed to a business invitee (or business visitor)
is the highest duty owed to any entrant upon land. The landowner
must protect an invitee not only against known dangers, but also
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against those which might be discovered with reasonable care.
Our case law sets forth the duty that a possessor of land owes to
business invitees as follows:
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but 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 invitees, 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.
Gutteridge v. A.P. Green Servs. Inc., 804 A.3d 643, 656 (Pa. Super. 2002)
(citations omitted), appeal denied, 829 A.2d 1158 (Pa. 2003).
It is well-settled in Pennsylvania that summary judgment may be
granted only “in the clearest of cases” where the record shows genuine issues
of material fact. Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96,
100 (Pa. Super. 2017). This is not one of those cases. Contrary to the trial
court’s determination, our review of the pleadings and depositions in this
matter reveals an existence of genuine issues of material fact as to how
Appellant fell and what caused her fall. Specifically, Appellant’s deposition
testimony indicates that her right foot slipped when she entered the bathtub.1
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1 As the Hotel points out, Appellant’s deposition testimony was contradictory
in this regard. Appellee’s Brief at 4-5; see N.T. Hearing, 7/20/20, at 4-5
(Appellant’s “testimony contradicts itself in the deposition, but in the end . . .
she said that she stepped in with her right foot and slips and falls.”).
(Footnote Continued Next Page)
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See N.T. Deposition, 10/8/19, at 77 (Appellant testified that she felt her right
foot slip when she got into the tub).
Moreover, our review of the record also belies the trial court’s
determination that Appellant furnished no direct evidence “that any sort of
cleaner or slippery substance of any kind was in the bathtub/shower.” Trial
Court Opinion, 8/6/20, at 4. Carla Johnston, a housekeeper at the Hotel,
testified at her deposition that she used a cleaning agent to clean bathtubs at
the Super 8. According to Ms. Johnston, she did not rinse the cleaning agent
after applying it to bathtubs but rather just wiped it down with a cloth. N.T.
Deposition, 6/8/20, at 25. The exact nature of the cleaning agent, however,
is not clear. The record suggests it could have been a generic glass cleaner—
Windex equivalent. Nonetheless, at this juncture, for purposes of overcoming
summary judgment, Appellant has produced sufficient evidence to show that
a cleaning agent was allowed to remain on the surface of the bathtub after
use, creating an unreasonably slippery condition that caused her right foot to
slip. Thus, upon careful review of the entire record, viewed in the light most
favorable to Appellant as the non-moving party, we must disagree with the
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Specifically, at other, earlier, points in her deposition testimony, Appellant
indicated that she was “not sure which foot” she used to enter the tub or
whether the “foot in the tub” or the “foot that had remained outside the tub”
had slipped. Id. at 2-4 (record citations omitted). To the extent her
deposition testimony was contradictory, such contradictions would implicate
weight and credibility concerns, which are within the purview of a fact-finder
at trial and are not a proper consideration at the summary judgment stage
where we must view the evidence in a light most favorable to the non-moving
party. See Goodwin, supra.-8-
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trial court’s conclusion that Appellant failed to make out a prima facie case for
negligence. Accordingly, the trial court erred in granting the Hotel’s motion
for summary judgment.
We now turn to Appellant’s last issue that an expert opinion was not
required to establish that the use of the cleaning agent, which remained
unrinsed on the surface of the bathtub, rendered the tub slippery, causing her
to fall. Appellant’s Brief at 15. In support, she points out that “a layman of
ordinary affairs of life could infer the cause from the effect, viz. that unrinsed
cleaner on a bathtub causes a slippery and defective condition of the
property.” Id. at 15-16. The Hotel, on the other hand, argues that summary
judgment was proper because it is beyond the scope of the average juror’s
normal experience to determine that unrinsed cleaning agent, possibly
Windex, could render a bathtub unreasonably slippery. See Appellee’s Brief
at 9-12. The Hotel notes that a glass cleaner, possibly Windex, is not “an oil-
based product” and questions whether it could, when unrinsed, cause a
bathtub to become more slippery. Id.
Here, as mentioned above, the record before us is unclear about the
exact nature of the cleaning agent used. As a result, we are unable to engage
in meaningful appellate review. Appellant’s key allegation is that but for the
bathtub’s unreasonably slippery condition, she would not have fallen. Again,
what exactly made the bathtub slippery is not clear from the record, which
indicates only that either a glass cleaner, possibly Windex, or some other
cleaning agent was used to wipe it down prior to Appellant’s fall. Given this
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obscurity in the record, we find it necessary to remand this matter to the trial
court for further discovery. The parties should be permitted to conduct
additional discovery necessary to identify or clarify what cleaning agent was
used by the Hotel to clean bathtubs prior to or on the day of Appellant’s fall
and resulting injuries. If the parties are able to identify the cleaning agent
used, it then can be determined whether expert testimony is necessary to
relate the cleaner with the slippery condition.2
In sum, we reverse the trial court’s grant of summary judgment in favor
of the Hotel and remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/11/2021
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2 When a plaintiff’s negligence theory demands analysis that is beyond the
realm of the average juror’s normal experience, expert testimony is required.
Young v. Dept. of Transp., 744 A.2d 1276, 1278 (Pa. 2000). However, such
testimony is not required when the subject matter is “so simple and the lack
of skill or want of care is so obvious, as to be within the range of the ordinary
experience and comprehension of even non-professional persons.” Ovitsky
v. Capital City Econ. Dev. Corp., 846 A.2d 124 (Pa. Super. 2004) (citation
omitted).
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