McKinney, G. v. Edens Corp. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GAIL MCKINNEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
EDENS CORPORATION, A/K/A, J : No. 1755 EDA 2020
EDENS CORPORATION, :
INDIVIDUALLY AND D/B/A E.I.G. A :
JOINT VENTURE AND :
INDEPENDENCE CONSTRUCTORS :
CORP., INDIVIDUALLY AND D/B/A, :
E.I.G., A JOINT VENTURE AND :
GESSLER CONSTRUCTION CO., INC., :
INDIVIDUALLY AND D/B/A, E.I.G. A :
JOINT VENTURE, AND SEPTA :
Appeal from the Order Entered August 13, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 180801938
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 07, 2021
Appellant, Gail McKinney, appeals from the trial court’s August 13, 2020
order denying her post-trial motion to remove a nonsuit entered in favor of
Appellees, Edens Corporation, a/k/a, J Edens Corporation, individually and
d/b/a E.I.G. a Joint Venture and Independence Constructors Corp.,
individually and d/b/a, E.I.G., a Joint Venture and Gessler Construction Co.,
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* Former Justice specially assigned to the Superior Court.
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Inc., individually and d/b/a, E.I.G. a Joint Venture (collectively referred to
herein as “EIG”).1,2 We affirm.
Ms. McKinney slipped and fell on black ice in the handicapped parking
lot of the SEPTA Thorndale train station on March 20, 2017, shattering her
kneecap. In addition to suing SEPTA, she brought a negligence claim against
EIG, SEPTA’s snow-removal contractor, claiming, inter alia, that EIG was
negligent by “[a]llowing and permitting foreseeably dangerous conditions to
exist in … the … train station parking lot [that were] caused and/or created by
negligently performed snow plowing and/or shoveling when [EIG] knew or
should have known of said conditions[.]” Complaint, 8/21/18, at ¶ 26(a).
Specifically, she averred that EIG “negligently plow[ed] and/or shovel[ed]
snow into piles which were subject to melting and re-freezing and leaving
same in an area where there would be water run-off onto the parking lot
surface which created a foreseeable hazardous condition[.]” Id. at ¶ 26(b).
The trial court summarized the proceedings that then ensued below as follows:
Following a jury trial that lasted from March 9 to March 13, 2020,
nonsuit was entered [in favor of EIG]. [Ms. McKinney] filed a post-
trial motion, which was denied, following a COVID-19 delay, on
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1 “Where a court has entered a judgment of compulsory nonsuit, the appeal
lies not from the entry of the judgment itself, but rather from the court’s
refusal to remove it.” Baird v. Smiley, 169 A.3d 120, 122 n.1 (Pa. Super.
2017) (citation omitted).
2 Though listed in the caption, the trial court granted Southeastern
Pennsylvania Transportation Authority (“SEPTA”) summary judgment prior to
trial based on sovereign immunity, and SEPTA is not involved in this appeal.
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August 13, 2020.[3] On September 8, 2020, [Ms. McKinney] filed
her appeal to the Superior Court. On October 26, 2020, [Ms.
McKinney] filed a [timely] Statement of Errors Complained of on
Appeal pursuant to Pa.R.A.P. 1925(b)….
EVIDENCE AT TRIAL
Witness Michelle Billingsley testified that [Ms. McKinney] was at
the SEPTA Thorndale regional rail station on the morning of March
20, 2017. Ms. Billingsley testified that there had been a
[snowstorm] previously, and had noticed some black ice, but not
much snow on the ground.[4] Ms. Billingsley witnessed [Ms.
McKinney] slip[-]and[-]fall in the handicap spot of the parking
lot.[5]
SEPTA employee Evan Wade testified that he is SEPTA’s manager
of engineering, maintenance, and construction contracts. Mr.
Wade manages third-party contracts, including the snow removal
contract with [EIG]. Mr. Wade testified that SEPTA wrote the snow
removal contract[,] and it was his responsibility to ensure that
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3 The trial court had granted leave for Ms. McKinney to file a post-trial motion
nunc pro tunc due to circumstances relating to the COVID-19 pandemic.
4 Ms. McKinney details in her brief that “a heavy snowfall fell in the Philadelphia
area on March 14-15, 2017, measuring 6½ inches at the … parking lots at the
SEPTA Thorndale station.” Ms. McKinney’s Brief at 14 (citations omitted).
Further, Ms. Billingsley testified at trial that, on the morning of Ms. McKinney’s
fall on March 20, 2017, “there was a concern all over the news that there
would be black ice because the snow had melted and it was just frozen….”
N.T. Trial, 3/9/20, at 78. Ms. McKinney also testified at trial that she was
aware of reports of black ice before leaving her house on March 20, 2017.
N.T. Trial, 3/12/20, at 60.
5 Specifically, Ms. McKinney asserts in her brief that she fell in “the hatched
area for handicapped access of a parking space” in the middle of the parking
lot. See Ms. McKinney’s Brief at 13 (citing to the testimony of J. Nelson Wiest,
who was hired by Ms. McKinney to take measurements of the parking lot).
She says that “[t]he grade in the cross-hatched area where [she] fell is 2%,
which is the maximum for handicapped spaces, ‘as is the majority of the
parking lot there.’” Id. (citation omitted). Ms. McKinney presented evidence
at trial that the area in the center of the lot where she fell is the highest
elevated point in the lot, and that the lot slopes from its middle down to the
street. Id. (citation omitted).
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[EIG] complied with the specifications in the contract. Mr. Wade
admit[ted] that it was SEPTA’s responsibility to remove snow and
ice from the parking lots. He testified that [EIG] is only allowed
to perform snow removal tasks when [it is] directed and
authorized by SEPTA. Mr. Wade also admitted that after [EIG]
removed the snow and salted the property on March 16, 2017,
SEPTA did not give deployment orders to [EIG] after March 16,
20[17]. Likewise, [EIG] was never hired to remove any snow that
remained on the lot after it was plowed, nor [was it] hired to
remove all snow at any point.
Trial Court Opinion (“TCO”), 1/8/21, at 1-2 (unnumbered pages; internal
citations omitted).
In granting the nonsuit in favor of EIG, the trial court explained in its
Rule 1925(a) opinion that:
[Ms. McKinney] failed to establish that [EIG] was responsible for
her slip[-]and[-]fall. SEPTA admitted [at] trial that [it was]
responsible for the management of [its] property, including snow
and ice. [It] had contracted [EIG] to clear out snow, only at the
direct authorization and permission to enter the property and do
so [sic]. [EIG] completed the snow removal and salting on March
16, 20[17], which SEPTA found satisfactory. SEPTA then had four
days to observe the parking lot and request that [EIG] return to
clear up snow or ice that had accumulated, but failed to do so. As
the court stated at trial, “I find that [EIG] was not in breach of
[its] contract. [It] obviously performed the contract that day up
to specifications because it was inspected by SEPTA and SEPTA
said it was all right. In fact, [it] had been doing that contract for
35 years. That’s the way [it] did that lot hundreds of times. If
SEPTA had a complaint about it, [it] never made it known.” [EIG]
completed the task it had been contracted to do and had no duty,
nor any right, to enter the property and complete any further
work. To hold [EIG] liable for a slip[-]and[-]fall, that was
apparently the fault of SEPTA, four days after [EIG] had completed
[its] contractual duty to clear snow and ice would be a miscarriage
of justice. However, SEPTA was not a part of this case as [it] had
been granted sovereign immunity, which, unfortunately for [Ms.
McKinney], makes this a claim which cannot be satisfied. Nonsuit
was proper.
TCO at 2-3 (unnumbered pages; internal citation omitted).
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On appeal, Ms. McKinney raises the following issues for our review:
1. Did the trial court commit an error of law in granting nonsuit
on the basis that … EIG did not breach its snow-removal contract
with SEPTA as a matter of law where [Ms. McKinney] presented
evidence at trial that EIG breached several contract specifications
and it was for the jury to determine breach and causation and to
evaluate the credibility [sic] in making that determination?
2. Did the trial court commit an error of law in granting nonsuit
because … EIG owed [Ms. McKinney] a duty under Restatement
Section 324A (as the [c]ourt ruled during oral argument), and it
was for the jury to determine whether EIG breached that duty and
whether the breach caused [Ms. McKinney’s] injuries?
3. Did the trial court commit an error of law in granting nonsuit
on the basis that “[i]t’s just so attenuated” because [Ms.
McKinney] presented sufficient evidence to show proximate cause
and SEPTA’s acts or omissions were not a superseding cause of
[her] injuries as a matter of law?
4. Did the trial court commit an error of law in granting nonsuit
on the basis that [Ms. McKinney] assumed the risk of her injuries
as a matter of law because it was not beyond question that she
voluntarily and knowingly proceeded in the face of an obvious and
dangerous condition, and … EIG failed to prove the availability of
a safe alternative pathway?
Ms. McKinney’s Brief at 3-4.
We apply the following standard of review regarding the entry of
nonsuit:
A trial court may enter a compulsory nonsuit on any and all
causes of action if, at the close of the plaintiff’s case against
all defendants on liability, the court finds that the plaintiff
has failed to establish a right to relief. Absent such finding,
the trial court shall deny the application for a nonsuit. On
appeal, entry of a compulsory nonsuit is affirmed only if no
liability exists based on the relevant facts and
circumstances, with [the] appellant receiving the benefit of
every reasonable inference and resolving all evidentiary
conflicts in [the appellant’s] favor. The compulsory nonsuit
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is otherwise properly removed and the matter remanded for
a new trial.
The appellate court must review the evidence to determine
whether the trial court abused its discretion or made an error of
law.
Baird, 169 A.3d at 124 (citations and internal quotation marks omitted; some
brackets added).
We also remain mindful that,
[i]n order to hold a defendant liable for negligence, the plaintiff
must prove the following four elements: (1) a legally recognized
duty that the defendant conform to a standard of care; (2) the
defendant breached that duty; (3) causation between the conduct
and the resulting injury; and (4) actual damage to the plaintiff.
Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96, 101 (Pa. Super.
2017) (citation omitted).
We address Ms. McKinney’s first, second, and third issues together. Ms.
McKinney argues that the trial court erred in determining that “EIG did not
breach its snow-removal contract with SEPTA as a matter of law because [Ms.
McKinney] presented evidence that EIG breached several contract
specifications and it was for the jury to determine breach and causation[,] and
to evaluate the credibility of witnesses in making those determinations.” Ms.
McKinney’s Brief at 33 (unnecessary capitalization and emphasis omitted).
She says that the evidence at trial showed that EIG breached its contract with
SEPTA, as the contract provided that:
• “All accumulation of snow and/or ice shall be cleared from
the entire parking lot area.”
• “Particular attention must be paid to any inclined areas,
entrances and exits where a uniform heavy and generous
application of salt will be spread.”
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• “Contractor must be aware of the location of handicapped
spaces and must not store snow in these spaces.”
• “Contractor should attempt to place the plowed snow in
lower sections of the lot when possible. This prevents
melted water runoff from traveling downward in the lot
during the warmer part of the day and turning to ice as it
gets colder.”
• “Recommended one or two shovellers [sic] ride with the
parking crew so that plow-ins can be shoveled out in a
timely manner.”
Id. at 15 (citations omitted).
Further, Ms. McKinney argues that:
There was evidence [Ms. McKinney] fell in “the hatched area for
handicapped access of a parking space” in the middle of the
parking lot when she stepped over a pile of snow. The middle in
the center of the parking lot where she fell “still had snow in it”
“through that whole week before” her fall. EIG acknowledged that
it left snow piled in the “dead area” in the middle of the lot,
allegedly because it was “virtually impossible” to remove all of the
snow to the lower section of the parking lot using only
snowplows.[6] Photographs introduced into evidence and shown
to witnesses at trial show a pile of snow several inches high with
discoloration at its base in a cross-hatched area, which [Ms.
McKinney] and [Ms.] Billingsley testified was the black ice that
[Ms. McKinney] slipped on. The photograph marked P-[1]6 shows
“hatch marks between the two cars … where [Ms.] McKinney was
sitting, or laying [sic], or on the ground.” Looking at the
photograph, the trial court stated that “[i]t does look like there’s
two, three inches of snow in the cross-hatch area.”
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6 EIG concedes that its “snow[-]plow crews did not plow or shovel the small
area located between the parking bumpers in the center of the subject parking
lot[,]” noting that “the subject area was inaccessible by EIG’s plows due to
the placement of parking bumpers.” EIG’s Brief at 6, 7 (citations omitted).
See also id. at 29 (“EIG did not plow, shovel, or otherwise remove the [6½]
inches of snow that accumulated during the [snowstorm] from the non-
crosshatched, non-parking space area, located between parking bumpers and
poles, of the subject parking lot.”) (citation and emphasis omitted).
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Id. at 35-36 (internal citations omitted).
Ms. McKinney recognizes that:
Generally, a party to a contract does not become liable for a
breach thereof to one who is not a party thereto. However, a
party to a contract by the very nature of his contractual
undertaking may place himself in such a position that the law will
impose upon him a duty to perform his contractual undertaking in
such manner that third persons — strangers to the contract — will
not be injured thereby. It is not the contract per se which creates
the duty; it is the law which imposes the duty because of the
nature of the undertaking in the contract….
Id. at 48 (quoting Farabaugh v. Pa. Tpk. Comm’n, 911 A.2d 1264, 1283
(Pa. 2006) (emphasis omitted)). This principle is formalized in Section 324A
of the Restatement (Second) of Torts, which states in relevant part that:
§ 324A Liability to Third Person for Negligent Performance of
Undertaking
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of a third person or his things, is subject to liability
to the third person for physical harm resulting from his failure to
exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk
of such harm….
Casselbury v. American Food Service, 30 A.3d 510, 513 (Pa. Super. 2011)
(quoting Restatement (Second) of Torts, § 324A). Ms. McKinney asserts that,
pursuant to Section 324A(a), EIG owed her a duty “to perform its snow-
removal activities in a non-negligent manner … and it was for the jury to
determine whether EIG breached that duty and whether any such breach
caused [her] injuries.” Ms. McKinney’s Brief at 32.
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Assuming arguendo that EIG breached its aforementioned contractual
obligations by leaving some snow in the middle of the parking lot, Ms.
McKinney points to nothing in the contract that obligated EIG to monitor and
address the parking lot for possible snow melt and refreeze in the days
following the snowstorm. That was SEPTA’s responsibility and, as the trial
court noted, EIG was not permitted to return to the parking lot to inspect
conditions unless directed to do so by SEPTA. SEPTA did not request that EIG
perform any services after March 16, 2017. Thus, it is clear that EIG had no
duty to check the conditions of the lot on March 20, 2017, the day of Ms.
McKinney’s fall. See Straw v. Fair, 187 A.3d 966, 983 (Pa. Super. 2018)
(“[I]t is a fundamental principle of tort law [that] there cannot be a valid claim
sounding in negligence unless there is a duty upon the defendant in favor of
the plaintiff which has been breached. The existence of a duty is a question
of law for the court to decide.”) (internal quotation marks and citations
omitted; some brackets added). See also Farabaugh, 911 A.2d at 1283 (“It
is not the contract per se which creates the duty; it is the law which imposes
the duty because of the nature of the undertaking in the contract….”)
(emphasis added).
Moreover, to the extent that EIG breached a specification in the contract
— and a duty of care pursuant to Section 324A — by leaving some snow in
the middle of the parking lot when it serviced the lot earlier in the week, the
connection between that breach and Ms. McKinney’s unfortunate fall are too
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attenuated to hold EIG liable.7 We have stated that “[p]roximate cause does
not exist where a defendant’s negligence was so remote that the defendant
cannot be held legally responsible as a matter of law for the harm that resulted
to the plaintiff.” Kote v. Bank of New York Mellon, 169 A.3d 1103, 111
(Pa. Super. 2017) (citation omitted). “To determine proximate cause, … the
question is whether the defendant’s conduct was a ‘substantial factor’ in
producing the injury.” Brown v. Philadelphia College of Osteopathic
Medicine, 760 A.2d 863, 869 (Pa. Super. 2000) (citations and some internal
quotation marks omitted). Further, “[p]roximate cause is primarily a problem
of law and it is a Pennsylvania court’s responsibility to evaluate the alleged
facts and refuse to find an actor’s conduct the legal cause of harm when it
appears to the court highly extraordinary that the actor’s conduct should have
brought about the harm.” Id. at 868 (citation, internal quotation marks, and
emphasis omitted). We have observed that “[i]t is not sufficient … that a
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7 Indeed, the trial court recognized this issue at trial when ruling on EIG’s
motion for nonsuit, stating:
[I]t’s just so attenuated. What we are looking at is an injury that
takes place four days after [EIG] completes [its] work, four days
later when [EIG] do[es] not have the right to go back and do
anything on that property. [It has] to be invited back by SEPTA.
Four days when SEPTA has total control over the property[,]
where the burden becomes SEPTA’s to inspect the property,
correct conditions, to do the things that SEPTA routinely does.
Putting out salt, for example.
N.T. Trial, 3/13/20, at 16; see also Ms. McKinney’s Brief at 52-60 (discussing
the trial court’s “attenuated” ruling); see also TCO at 3 (“To hold [EIG] liable
for a slip[-]and[-]fall, that was apparently the fault of SEPTA, four days after
[EIG] had completed [its] contractual duty to clear snow and ice would be a
miscarriage of justice.”).
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negligent act may be viewed, in retrospect, to have been one of the
happenings in the series of events leading up to an injury[,]” and have noted
that “a finding of proximate cause turns upon[] whether the policy of the law
will extend the responsibility for the [negligent] conduct to the consequences
which have in fact occurred.” Id. (citations omitted; some brackets added).
“Thus, proximate cause must be determined by the judge and it must be
established before the question of actual cause is put to the jury.” Id. (citation
and internal quotation marks omitted). To guide us on this issue, we look to
Section 433 of the Restatement (Second) of Torts, which sets forth:
§ 433. Considerations Important in Determining Whether
Negligent Conduct is Substantial Factor in Producing Harm
The following considerations are in themselves or in
combination with one another important in determining
whether the actor’s conduct is a substantial factor in
bringing harm to another:
(a) the number of other factors which contribute in
producing the harm and the extent of the effect which they
have in producing it;
(b) whether the actor’s conduct has created a force or series
of forces which are in continuous and active operation up to
the time of the harm, or has created a situation harmless
unless acted upon by other forces for which the actor is not
responsible;
(c) lapse of time.
Id. at 869 (quoting Restatement (Second) of Torts, § 433).
Here, EIG’s leaving some snow in the middle of the parking lot four days
before Ms. McKinney’s fall was not a ‘substantial factor’ in producing her harm;
instead, SEPTA’s apparent lack of monitoring and salting in the days following
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the snowstorm played a far greater hand in causing her to fall. In comparison,
any negligence by EIG in leaving some snow in the middle of the lot earlier in
the week was so remote that EIG cannot be held legally responsible as a
matter of law for the harm that resulted to Ms. McKinney. See Brown, 760
A.2d at 869 (considering in its proximate-cause analysis that “it is abundantly
clear that factors other than the negligence of [the defendant] had a far
greater effect in producing the harm complained of by the [plaintiffs]”)
(footnote omitted). We decline to hold EIG responsible for SEPTA’s failure to
treat its parking lot in the aftermath of the snowstorm. Accordingly, we affirm
the trial court’s order denying Ms. McKinney’s motion to remove the nonsuit.8,9
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2021
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8 To the extent, if any, that we affirm on a basis different than the trial court,
we note that “this Court may affirm a trial court’s ruling on any basis.” Zehner
v. Zehner, 195 A.3d 574, 581 n.12 (Pa. Super. 2018) (citation omitted).
9 In light of our disposition, we need not address Ms. McKinney’s remaining
issue.
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