Ashmore v. V & S Medical ( 2021 )

J-A11017-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PATRICK B. ASHMORE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
V&S MEDICAL ASSOCIATES, LLC, :
PETER VACARRO; KAMRAN SALEH; :
SEEMA SALEH; AND CHARLES :
GIORDANO, INDIVIDUALLY AND :
D/B/A YOUR WAY LANDSCAPING :
:
Appellees : No. 1125 WDA 2020
Appeal from the Judgment Entered September 24, 2020
In the Court of Common Pleas of McKean County
Civil Division at No(s): No. 938 CD 2018
BEFORE: McLAUGHLIN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: FILED: JULY 27, 2021
Appellant, Patrick B. Ashmore, appeals from the order entered in the
McKean County Court of Common Pleas, which granted summary judgment in
favor of Appellees, V&S Medical Associates, LLC, Peter Vacarro, Kamran Saleh,
Seema Saleh, and Charles Giordano, individually and d/b/a Your Way
Landscaping, in this negligence action. We reverse and remand for further
proceedings.
The relevant facts and procedural history of this case are as follows.
The morning of March 20, 2017, [Appellant] left his home
at 6:00 a.m. and made several trips on foot around the city
of Bradford. During these trips no rain or snow fell, and
[Appellant] did not see any snow or moisture on the streets,
sidewalks, or lawns along his routes. [Appellant] had a
medical appointment at the V&S building. He left for that
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appointment around 9:05 a.m. No rain or snow had fallen
since [Appellant] first left his home at 6:00 a.m. As
[Appellant] approached the rear entrance of the medical
building he slipped and fell in the building’s parking lot.
[Appellant] did not see what he slipped on but assumed that
it was ice. As a result of the fall [Appellant] suffered a
fractured hip.
Glen Roeder, a City of Bradford Refuse department
employee, happened upon [Appellant] immediately after he
fell. Mr. Roeder could not testify to whether there was ice
present where [Appellant] fell. Roeder reported the
accident to Chelsea Smith, an employee of V&S. Ms. Smith
was in the parking lot that morning. She does not recall
seeing ice in the parking lot.
Thomas Rimer was also in the parking lot shortly after
[Appellant] fell. Mr. Rimer indicated that he did see a patch
of ice where [Appellant] fell, which he described as a “frozen
puddle.” Mr. Rimer did not know if the parking lot had been
treated with salt and/or aggregate.
Danielle Grady was the Officer Manager of the medical
practice. Ms. Grady is often the first to arrive at the
building, and performs an inspection of the interior and
exterior of the building to ensure there are no obstacles that
would pose a danger to patients. On the morning that
[Appellant] fell, Ms. Grady arrived at the office between
7:00 a.m. and 7:15 a.m. She found the parking lot to be
free of snow or ice, but observed that the parking lot was
wet. Ms. Grady could tell that Mr. Giordano had already
plowed the parking lot, and assumed he salted the lot as
well. Upon discovering [Appellant] around 9:30 a.m.,
[Appellant] informed Ms. Grady that he had slipped. After
tending to [Appellant], Ms. Grady contacted Mr. Giordano
and asked him to come tend to the area [where Appellant]
fell.
Charles Giordano performed snow and ice removal service
for V&S. Mr. Giordano’s contract with V&S expired five days
prior [to] the accident, but he continued to perform services
for V&S. Around 7:00 a.m. on the morning of March 20,
2017, Mr. Giordano spent ten minutes spreading salt on the
V&S parking lot. Mr. Giordano returned to V&S around 9:20
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a.m. at the request of Ms. Grady. He found the lot to be dry
with the exception of a wet spot where [Appellant] fell. Mr.
Giordano saw no ice, but spread salt on the wet spot at the
request of Ms. Grady.
(Trial Court Opinion, filed September 16, 2020, at 2-3) (internal citations
omitted).
Appellant filed a negligence complaint against Appellees on October 19,
2018. On April 7, 2020, Appellee Giordano filed a motion for summary
judgment arguing that the “hills and ridges” doctrine shielded him from
liability. The remaining Appellees subsequently filed a summary judgment
motion raising a substantially similar argument. The trial court conducted a
hearing on the matter on June 5, 2020. By opinion and order filed September
16, 2020, the court granted Appellees’ summary judgment motions.
Specifically, the court determined that the hills and ridges doctrine shielded
Appellees from liability, and no exceptions to the doctrine applied to
Appellant’s case. On September 24, 2020, the court entered judgment in
favor of Appellees and against Appellant.
Appellant timely filed a notice of appeal on October 15, 2020. The
following day, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained on appeal. Appellant timely filed his Rule
1925(b) statement on November 4, 2020.
Appellant now raises the following issue for our review:
Did the trial court improperly grant [Appellees’] motions for
summary judgment when [Appellant] established that the
hills and ridges doctrine did not apply as generally slippery
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conditions did not prevail in the community at the time of
the fall and that several exceptions to the hills and ridges
doctrine applied rendering the case inappropriate for
summary judgment?
(Appellant’s Brief at 4).
On appeal, Appellant asserts that the trial court incorrectly applied the
hills and ridges doctrine in this case. Among other things, Appellant disputes
the court’s finding that generally slippery conditions prevailed in the
community on the date of his fall. Appellant asserts that he “was able to walk
all over the City of Bradford without experiencing any icy conditions” on the
day of his fall. (Id. at 22). In support of this assertion, Appellant cites the
deposition testimony from other witnesses, including Appellee Giordano, who
claimed they did not see any ice in the parking lot where Appellant fell. Absent
evidence of generally slippery conditions, Appellant maintains he slipped on a
localized patch of ice. Appellant relies on testimony from Mr. Rimer, who
described a “small frozen puddle” near where Appellant fell. (Id. at 23).
Under these circumstances, Appellant concludes that the hills and ridges
doctrine is inapplicable, and this Court must reverse the order granting
summary judgment in favor of Appellees. We agree.
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. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347
(Pa.Super. 2006).
Judicial discretion requires action in conformity with law on
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facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it misapplies
the law or exercises its discretion in a manner lacking
reason. Similarly, the trial court abuses its discretion if it
does not follow legal procedure.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal
citations and quotation marks omitted). Our scope of review is plenary.
Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert.
denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing
a trial court’s grant of summary judgment:
[W]e 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.
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
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undisputed or (2) contains insufficient evidence of facts to
make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
In an action for negligence, a complainant must prove the defendant
owed a duty or obligation recognized by law, a breach of the duty, causal
connection between the defendant’s breach of the duty and the resulting
injury, and actual loss or damage suffered by the complainant. Lux v. Gerald
E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa.Super. 2005), appeal denied,
587 Pa. 731, 901 A.2d 499 (2006) (emphasis omitted).
“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), appeal denied, 568
Pa. 634, 793 A.2d 909 (2002) (internal citations omitted).
The nature of the duty which is owed in any given situation
hinges primarily upon the relationship between the parties
at the time of the plaintiff’s injury. The standard of care
that a possessor of land owes to one who enters upon the
land depends upon whether the entrant is a trespasser, a
licensee or an invitee. … A business visitor is a person who
is invited to enter or remain on land for a purpose directly
or indirectly connected with business dealings with the
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possessor of the land. … Applying section 343 of the
Restatement (Second) of Torts, this court has explained that
a party is subject to liability for physical harm caused to an
invitee only if:
he knows of or reasonably should have known of the
condition and the condition involves an unreasonable
risk of harm, he should expect that the invitee will not
realize it or will fail to protect themselves against it,
and the party fails to exercise reasonable care to
protect the invitees against the danger.
An invitee must prove either the proprietor of the land had
a hand in creating the harmful condition, or he had actual
or constructive notice of such condition.
Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719, 722
(Pa.Super. 1997), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997) (internal
citations omitted).
The “hills and ridges” doctrine is a long standing and well
entrenched legal principle that protects an owner or
occupier of land from liability for generally slippery
conditions resulting from ice and snow where the owner has
not permitted the ice and snow to unreasonably accumulate
in ridges or elevations. The doctrine as defined and applied
by the courts of Pennsylvania, is a refinement or 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. The
rationale for this doctrine has been explained as follows:
... to require that one’s walks be always free of ice
and snow would be to impose an impossible burden in
view of the climatic conditions in this hemisphere.
The “hills and ridges” doctrine applies with equal force to
both public and private spaces. In order to recover for a fall
on an ice or snow covered surface, therefore, a plaintiff is
required to prove:
(1) that snow and ice had accumulated on the
sidewalk in ridges or elevations of such size and
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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; (3)
that it was the dangerous accumulation of snow and
ice which caused the plaintiff to fall.
Morin v. Traveler's Rest Motel, Inc., 704 A.2d 1085, 1087-88 (Pa.Super.
1997), appeal denied, 555 Pa. 708, 723 A.2d 1025 (1998) (internal citations
and some quotation marks omitted). See also Bacsick v. Barnes, 341 A.2d
157, 160 (Pa.Super. 1975) (stating “the ‘hills and ridges’ doctrine may be
applied only in cases where the snow and ice complained of are the result of
an entirely natural accumulation, following a recent snowfall”).
“[T]he 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.” Collins v. Philadelphia Suburban Dev. Corp., 179
A.3d 69, 74 (Pa.Super. 2018) (quoting Biernacki v. Presque Isle
Condominiums Unit Owners Ass’n, Inc., 828 A.2d 1114, 1117 (Pa.Super.
2003)). “[P]roof of hills and ridges is necessary only when it appears that the
injury occurred at a time when general slippery conditions prevailed in the
community as a result of recent precipitation.” Williams v. Shultz, 429 Pa.
429, 432, 240 A.2d 812, 813 (1968). “Where ... a specific, localized patch of
ice exists on a sidewalk otherwise free of ice and snow, the existence of ‘hills
and ridges’ need not be established.” Tonik v. Apex Garages, Inc., 442 Pa.
373, 376, 275 A.2d 296, 298 (1971). See also Harvey v. Rouse
Chamberlin, Ltd., 901 A.2d 523, 527 (Pa.Super. 2006) (explaining that
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resident slipped on black ice in residential development; ice formation, which
occurred after snowfall and subsequent plowing of roads, was not result of
entirely natural accumulation; therefore, hills and ridges doctrine did not
preclude resident’s negligence action).
Instantly, the trial court determined that the hills and ridges doctrine
applied in this case, reasoning:
The hills and ridges doctrine does not bar liability when the
ice and/or snow in question is not due to a generally slippery
condition that prevailed in the community. [Appellant]
asserts that, because there was only one patch of ice here,
the one he slipped on, it was a “localized” patch and this
exception to the hills and ridges doctrine is applicable here.
This assertion misses the purpose and basis of this
exception. It is not the number of patches of ice that are
controlling but whether slippery conditions existed in the
general area[.] The snow and rain on March 19, 2017 didn’t
just fall in this parking lot, it fell in the entire general area;
and, the temperature on March 20, 2017 of between 29
degrees and 30 degrees didn’t just occur in this parking lot,
it was below freezing in the entire local area. Therefore,
freezing and the formation of ice was a definite potential in
the entire area. Since the conditions for ice and slippery
conditions existed throughout the local community, the
“localized patch” exception does not apply.
(Trial Court Opinion at 6).
Despite the court’s analysis of the prevailing meteorological conditions,
questions remain regarding the prevalence of generally slippery conditions in
the community. Appellant stated there was no snow on his block when he left
his house on the morning of March 20, 2017. (See Appellant’s Reply to
Summary Judgment Motions, filed 5/20/20, at Exhibit J; R.R. at 635a).
Appellant did not observe ice on the sidewalks he traversed, and he did not
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see moisture on the surface of the V&S parking lot. (Id.; R.R. at 636a, 638a).
Nevertheless, Appellant unequivocally testified that ice caused his fall in the
parking lot: “All I know, I hit an icy spot, and I fell.” (Id.; R.R. at 639a). Mr.
Rimer, who came upon Appellant after the fall, confirmed that there was ice
on the ground where Appellant fell. (See Appellant’s Reply to Summary
Judgment Motions at Exhibit O; R.R. at 690a).
Appellee Giordano testified that he salted the parking lot at 7:00 a.m.
on March 20, 2017, before Appellant’s fall. (See Appellant’s Reply to
Summary Judgment Motions at Exhibit M; R.R. at 665a). Appellee Giordano
further testified that he returned to the parking lot after Appellant’s fall, and
the lot was “completely dry” except for “one little wet spot” where Appellant
fell. (Id.; R.R. at 669a). Conversely, Ms. Grady indicated that the parking
lot was “wet” on the morning of Appellant’s fall, but no snow or ice was
present. (See Appellant’s Reply to Summary Judgment Motions at Exhibit K;
R.R. at 648a). Based on her observations upon arriving at the lot for work,
Ms. Grady also believed that the lot was plowed and salted earlier that
morning. (Id.; R.R. at 649a).
On this record, a genuine issue of material fact exists regarding the
prevalence of generally slippery conditions in the community. See Mee,
supra; Miller, supra. Although the trial court relied upon weather records
to infer that conditions were generally slippery, the testimony from witnesses
calls this conclusion into question. When viewed in the light most favorable
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to the non-moving party, the testimony from Appellant, Mr. Rimer, and
Appellee Giordano indicated that surface conditions were mostly dry, except
for the patch of ice that caused the fall. See Chenot, supra. Based upon
the foregoing, we do not agree with the court’s conclusion that the hills and
ridges doctrine shielded Appellees from liability in this matter. See Williams,
supra; Morin, supra. Consequently, we reverse the order granting summary
judgment and remand for further proceedings consistent with this decision.1
Order reversed. Case remanded for further proceedings. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2021
____________________________________________
1 Due to our disposition, we do not address Appellant’s alternative arguments
regarding the applicability of other exceptions to the hills and ridges doctrine.
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