O'Donnell, N. v. Cogo's Co.

J-A27023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NANCY O’DONNELL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
COGO’S COMPANY, ELWOODS :
LEGACY, L.P. AND USMA UNITED :
ENTERPRISE, INC., :
:
Appellees : No. 39 WDA 2014
Appeal from the Order Entered December 23, 2013,
In the Court of Common Pleas of Allegheny County,
Civil Division, at No. GD-12-001987.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 03, 2014
Appellant, Nancy O’Donnell, appeals from the order entered on
December 23, 2013, that granted summary judgment in favor of Appellees,
CoGo’s Company, Elwoods Legacy, L.P. and USMA United Enterprise, Inc.
We affirm.
In its opinion, the trial court set forth the relevant facts and procedural
history of this matter as follows:
The record established that mixed precipitation fell
between 10:50 p.m. on January 17, 2011, through 2:30 a.m. on
January 18, 2011. [Appellant] left her home at approximately
8:00 a.m. to walk to the CoGo’s Store which was across the
street from her home on Brownsville Road in Pittsburgh,
Pennsylvania. [Appellant] acknowledged that it was icy
everywhere. [Appellant] entered the CoGo’s, left the store and
fell in the CoGo’s lot after leaving the store. She testified that
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the ice was solid and smooth in the area where she slipped and
fell. Other witnesses corroborated the conditions in the area
where [Appellant] fell.
Trial Court Opinion, 2/6/14, at 2-3.
On January 30, 2012, Appellant filed her complaint. Appellees filed
responsive pleadings, and on August 8, 2013, Appellees filed their motion for
summary judgment. In an order filed on December 23, 2013, the trial court
granted Appellees’ motion for summary judgment.
Following the order granting Appellees’ motion for summary judgment,
Appellant filed a timely appeal. On appeal, Appellant raises the following
issues for this Court’s consideration:
I. Whether the trial court erred as a matter of law by finding
that the hills and ridges doctrine shields the Appellees from
liability where the evidence of record establishes that Appellees
failed to treat their small parking [sic] for dangerous ice, in any
manner, over a six and a half hour period when they had more
than ample opportunity to do so?
II. Whether the trial court erred as a matter of law by granting
Appellees’ Motions for Summary Judgment where a genuine
issue of material fact exists as to whether the Appellant fell on a
localized patch of ice?
III. Whether the trial court erred as a matter of law by granting
Appellees’ Motions for Summary Judgment where a genuine
issue of material fact exists as to whether Appellant fell on ice
which had accumulated to elevations of such size and character
as to unreasonably obstruct travel?
IV. Whether the trial court erred as a matter of law by granting
Appellees’ Motions for Summary Judgment where a genuine
issue of material fact exists as to whether Appellant’s fall was
the result of an entirely natural accumulation of ice?
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Appellant’s Brief at 4.
An order granting summary judgment is subject to the following scope
and standard of appellate review:
Our standard of review on an appeal from the grant of a
motion for summary judgment is well-settled. A reviewing court
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. Pa.R.C.P. 1035.2. The rule states 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. 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 non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super. 2008)
(quoting Murphy v. Duquesne University, 777 A.2d 418, 429 (Pa. 2001)).
The trial court applied the hills and ridges doctrine. 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.”
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Biernacki v. Presque Isle Condominiums Unit Owners Ass’n, Inc., 828
A.2d 1114, 1116 (Pa. Super. 2003) (quoting Morin v. Traveler’s Rest
Motel, Inc., 704 A.2d 1085, 1087 (Pa. Super. 1997)).
[T]he doctrine of hills and ridges provides that an owner or
occupier of land is not liable for general slippery conditions, for
to require that one’s walks be always free of ice and snow would
be to impose an impossible burden in view of the climactic
conditions in this hemisphere. Snow and ice upon a pavement
create merely transient danger, and the only duty upon the
property owner or tenant is to act within a reasonable time after
notice to remove it when it is in a dangerous condition.
Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa. Super. 2006)
(quoting Harmotta v. Bender, 601 A.2d 837, 841 (Pa. Super. 1992)).
Further, we have stated:
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, as
. . . the protection afforded by the doctrine is predicated on the
assumption that [t]hese formations are [n]atural phenomena
incidental to our climate.
Harvey, 901 A.2d at 526 (emphasis in original) (quoting Bacsick v.
Barnes, 341 A.2d 157, 160 (Pa. Super. 1975)) (internal citations and
quotations omitted). Additionally, the doctrine of “hills and ridges” will not
prevent a plaintiff’s recovery when the hazard is not the result of a “general
slippery condition prevailing in the community, but [results from] a localized
patch of ice.” Bacsick, 341 A.2d at 160.
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The doctrine precludes recovery for a fall on snow or ice unless a
plaintiff can demonstrate:
(1) that snow and ice had accumulated on [the surface] in ridges
and 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.
Biernacki, 828 A.2d at 1117 (quoting Morin, 704 A.2d at 1088).
In her first issue on appeal, Appellant claims the trial court erred by
finding that the hills and ridges doctrine protected Appellees from liability
because the evidence established that Appellees failed to treat their parking
area during the six hours between the conclusion of the freezing
precipitation and the time Appellant fell. We disagree.
Despite the passage of six hours, Appellant admitted that, at the time
of her fall, generally slippery conditions existed throughout the community.
Q. And this ice, you mentioned -- from what I understand, at
some point, I know you said it wasn’t -- no precipitation that
day, maybe the night before, I don’t know when, but there was a
pretty nasty ice storm, correct?
A. Yes.
Q. And I remember you testifying about the conditions in
your -- generally when I asked you, they were icy
everywhere, correct?
A. Yes.
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Q. And from what I understand, the area you slipped on the ice,
we’re talking, like you said, the thickness we described it and it
was smooth ice; is that correct?
A. Yes.
N.T., Appellant’s Deposition, 5/24/13, at 39-40 (emphasis added). In
Biernacki, a case involving hills and ridges with a similar passage-of-time
component, this Court explained 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.
Genuine issues of material fact do not exist. It was not
reasonable for the snow and ice in the parking lot, that had
begun to fall sometime the night before, to be removed by 7:45
a.m. the following morning, particularly in light of the fact that
Biernacki fell in snow that had accumulated between the parked
cars. It would be totally unreasonable to require a landlord to
clear the areas between his tenants’ parked cars, prior to
removal of the cars in the early morning after a snowfall.
Therefore, the trial court acted properly in granting Association
and Great Lakes’ motions for summary judgment and dismissing
Biernacki’s claims on this record.
Biernacki, 828 A.2d at 1117 (internal citation and quotation marks
omitted).
Here, it is undisputed that a wintery mix of rain and snow fell in
Appellant’s community hours before her fall. At the time of Appellant’s fall,
the ground was slippery due to the icy conditions, not just in Appellees’
parking lot, but in the surrounding community as well. It would not have
been reasonable to expect or require Appellees to have cured the icy
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conditions in the parking lot by 8:00 a.m. because, as Appellant herself
testified, the surrounding area was icy in general, and there was no evidence
that the snow and ice had accumulated in ridges or elevations of such size
that they unreasonably obstructed travel. Biernacki, 828 A.2d at 1117;
Alexander v. City of Meadville, 61 A.3d 218, 222 (Pa. Super. 2012).
Moreover, while Appellant argues that, because an employee of Appellees
spread ice-melting salt on the sidewalk and perimeter of the parking lot but
failed to ensure the entire lot was salted, that fact does not establish an
error in the court’s decision. The fact that Appellees had begun ice-removal
on the perimeter of the parking lot does not establish that there were hills
and ridges in the area where Appellant fell, and there is no testimony or
evidence of such a condition. Therefore, Appellant cannot establish all three
elements necessary to sustain her claim. Biernacki, 828 A.2d at 1117. For
these reasons, Appellant’s first claim of error fails.
In her next issue, Appellant argues that the hills and ridges doctrine
should not apply because Appellant fell on a localized patch of ice.
Appellant’s Brief at 12. We disagree with Appellant’s characterization.
Proof of hills and ridges is not required when the hazard is due to a
localized patch of ice. Harmotta v. Bender, 601 A.2d 837, 842 (Pa. Super.
1992) (citations omitted). Rather, proof of hills and ridges is necessary only
when general slippery conditions prevailed in the community. Id. (citation
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and quotation marks omitted). Appellant specifically testified that icy
conditions were prevalent throughout the community, and as noted,
Appellant admitted the area was slippery in general. N.T., Appellant’s
Deposition, 5/24/13, at 22, 39-40. Thus, Appellant cannot now claim that
the ice was localized, where her own testimony admitted “it was icy
everywhere” and that the street and sidewalk were covered in smooth ice so
“you had to be careful.” Id. Therefore, because the prevailing conditions
were icy and slippery generally, Appellant was required to prove hills and
ridges, which as will be discussed below, she failed to accomplish.
In Appellant’s final two issues, she claims the trial court erred in
concluding that ice had not accumulated to elevations of such size and
character as to unreasonably obstruct travel and that her fall was the result
of an entirely natural accumulation of ice. Ultimately, these issues challenge
the conclusion that the hills and ridges doctrine precluded Appellant’s claim.
As noted above, Appellant testified that she slipped on smooth ice, not
an area where there were hills and ridges. N.T., Appellant’s Deposition,
5/24/13, at 40. Our Supreme Court explained over fifty years ago:
the burden is upon a plaintiff to prove not only that there was an
accumulation of snow and ice on the sidewalk but that such
accumulation, whether in the form of ridges or other elevations,
was of such size and character to constitute a substantial
obstruction to travel. A mere uneven surface caused by persons
walking on the snow and ice as it freezes will not constitute such
an obstruction to travel. In Kohler et ux. v. Penn Township,
305 Pa. 330, 332, 157 A. 681 (involving liability of a municipality
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rather than an abutting owner) the general principle is well
expressed: It is also true that ice when in the process of
formation, or when softened by a rise in temperature will show
footprints of the pedestrians who walk thereon, and thereby its
surface will become uneven and rough. This is characteristic of
all walks, and is as impossible to prevent, as is the presence of
the ice. Of course, where ice is suffered to remain upon a walk in
substantial ridges that constitute an obstruction to travel, the
municipality may be liable. The ridge must be shown to be of
such substantial size and character as to be a danger to the
public, not a mere uneven surface caused by walking upon the
ice. The proof must describe the alleged ridge as to size and
character, and be such as to support a finding that it was a
substantial obstruction to travel.
Rinaldi v. Levine, 176 A.2d 623, 626 (Pa. 1962) (internal quotation marks
and emphasis omitted).
In the record before us, there is no evidence that Appellant slipped on
anything other than a natural accumulation of ice. Appellant has failed to
establish that there was any ridge or elevation that would unreasonably
obstruct travel. Thus, the record supports the trial court’s summation
wherein it stated: “The evidence of record established that the ice and snow
occurred hours before [Appellant’s] fall, was smooth and not an
accumulation into hills or ridges. Accordingly, summary judgment was
properly granted for [Appellees].” Trial Court Opinion, 2/6/14, at 2. We
conclude that there was no error in the trial court’s conclusion that
Appellant’s fall was the result of an entirely natural accumulation of ice.
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For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, the order granting summary judgment in favor of
Appellees is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2014
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