Denzel, M. v. Federal Cleaning Contractors, Inc.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARGARET DENZEL IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
FEDERAL CLEANING CONTRACTORS AND
J. FOSTER & SONS, INC. AND POAG &
MCEWEN LIFESTYLE CENTER, LLC, THE
PROMENADE SHOPS AT SAUCON VALLEY
A/K/A PROMENADE SHOPS AT SAUCON
VALLEY, AND PRUDENTIAL INVESTMENT
MANAGEMENT, INC.
Appellees No. 3307 EDA 2014
Appeal from the Order November 6, 2014
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): No. 2013-C-1078
BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 09, 2015
Appellant, Margaret Denzel, appeals from the November 6, 2014 order
granting summary judgment in favor of Appellees, Federal Cleaning
Contractors, Inc. (Federal), J. Foster and Sons, Inc. (Foster), Poag &
McEwen Lifestyle Center, LLC (Poag), the Promenade Shops at Saucon Valley
(Promenade Shops), and Prudential Investment Management, Inc.
(Prudential). After careful review, we affirm.
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*
Former Justice specially assigned to the Superior Court.
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The trial court set forth the pertinent factual history in its opinion filed
in support of its order granting summary judgment in favor of Appellees, as
follows.
Plaintiff, [Appellant] alleges that on February
12, 2010, she sustained injuries at [Promenade
Shops], a shopping center. [Appellant] claims that
she slipped on the sidewalk in front of The Children’s
Place store due to “certain elevations and
accumulations of hills and ridges of ice and/or snow.”
[Appellant] sued the owners and management
entities of the shopping center, … [and] the two
contractors who performed sidewalk snow removal at
the shopping center[, Appellees].
The Promenade [Shops] is an outdoor
shopping mall, approximately 475,000 square feet.
The Promenade Shops consists of several large
buildings with various stores, each with their own
exterior entrance. The stores are bordered with wide
sidewalks along two-lane driveways.
Prior to [Appellant]’s fall, a snowstorm brought
17 inches of snow to Allentown starting 7 p.m. on
February 9, 2010 until 7 p.m. on February 10, 2010.
Due to the magnitude of the storm, Federal
performed snow removal and salting activities for
three days, from February 10, 2010 through
February 12, 2010. At the time of [Appellant]’s fall,
Federal still had four employees on duty. Foster had
laborers working the same time period, including six
at the time of [Appellant]’s fall.
[Appellant] is a school librarian in the North
Penn School District, which was closed February 11
and 12 due to snow-day cancellations. Due to the
snow day, [Appellant] did not have to work and was
packing for a vacation to Arizona. She drove to the
Promenade to buy sneakers for her trip the following
day. She went to the Sneaker King and purchased a
pair of shoes. The sidewalks were “absolutely clear
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on her path into Sneaker King.” [Appellant] alleges
the “whole front looked perfect” and dry.
After her purchase, [Appellant] was headed to
Ann Taylor Loft to see if there were any big sales.
She had no specific need, but just wanted to browse.
She was carrying a purse and her newly purchased
sneakers in a plastic bag. Immediately prior to her
fall, [Appellant] saw a clean-up crew and that the
area she was headed towards had snow and was
“not cleaned up.”
After turning the corner, [Appellant] slipped
and fell in front of the Children’s Place store. She
saw the snow and the ice ahead of her and fell while
attempting to negotiate around it safely. The
Children’s Place was a party to this suit, however a
stipulated dismissal was filed on June 3, 2014.
[Appellant] fell on the sidewalk and while she was
supine and waiting for the ambulance, she took
photos of the area. She believed she slipped on
black ice, and said if she could have seen it, she
would “not walk on a chunk of ice.” [Appellant]
stated “[a]s I got to the corner, I saw that there was
snow—I knew I was going to have to be careful
because it was snow and ice there at the end there.”
After [Appellant]’s fall, Allied Barton Security
filed an incident report at 11:11 a.m. on Friday,
February 12, 2010. On the incident report
“voluntary statement made by complainant,” reads
“I should have stayed home. This place is a mess.”
At her deposition, [Appellant] was asked if she saw
the patches of snow and ice before her fall, she
replied “I guess I could see that it was in front — it
was off in front of me.” [Appellant] did state she
knew she would have to be careful, but decided to
proceed.
Defendants, Federal, Prudential, Poag and
Promenade [Shops] filed a Motion for Summary
Judgment on July 8, 2014 and Defendant, … Foster
… filed a Motion for Summary Judgment on July 9,
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2014. [Appellant] responded on August 5, 2014 and
argument was held August 18, 2014.
Trial Court Opinion, 11/6/14, at 2-4 (internal citations omitted).
Thereafter, on November 6, 2014, the trial court granted Appellees’
motion for summary judgment. On November 24, 2014, Appellant filed a
timely notice of appeal.1
On appeal, Appellant raises the following issue for our review.
1. Did the trial court err and/or abuse its discretion
in finding that as a matter of law the [Appellant]
assumed the risk of confronting a known and obvious
condition, relieving [Appellees] of a duty where the
undisputed facts are:
(a) At the time of [Appellant]’s accident,
[Appellees] were charged with the
responsibility of maintenance, possession and
control of an outdoor retail mall called the
Promenade Shops at Saucon Valley;
(b) That the area in question received
approximately 17 inches of snow, which
precipitation ended approximately forty (40)
hours prior to [Appellant]’s fall;
(c) That at the time of the accident, the
[Appellant] was a business invitee;
(d) That on February 12, 2010, [Appellees]
chose to open the mall for business to its
customers;
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1
[Appellant] and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. We note, on December 18, 2014, the trial court
filed its Rule 1925(a) statement, and therein, adopted the reasoning set
forth in its November 6, 2014 opinion.
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(e) That [Appellant] at no time whatsoever
admitted in her deposition to knowingly
walking through or onto ice, but rather
unequivocally stated numerous times that she
believed she was stepping onto the dry and
clear patches of pavement she perceived and
walking on same when her foot came into
contact with an area of black ice that she did
not see or appreciate before it caused her to
slip and fall.
Appellant’s Brief at 4.
Our standard of review of an order granting summary judgment is well
settled. Our task is “to determine whether the trial court abused its
discretion or committed an error of law[,] and our scope of review is
plenary.” Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1193 (Pa.
Super. 2015) (citation omitted).
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. When the non-moving
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.
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Cigna Corp. v. Exec. Risk Indem., Inc., 111 A.3d 204, 210 (Pa. Super.
2015), quoting Murphy v. Duquesne University of the Holy Ghost, 777
A.2d 418, 429 (Pa. 2001). “[O]ur responsibility as an appellate court is to
determine whether the record either establishes that the material facts are
undisputed or contains insufficient evidence of facts to make out a prima
facie cause of action, such that there is no issue to be decided by the fact-
finder.” Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa.
Super. 2015) (en banc) (citation omitted), appeal denied, 117 A.3d 298 (Pa.
2015). Consequently, if the record contains evidence that would allow a
fact-finder to return a verdict in favor of the non-movant, then summary
judgment is not proper. Id.
Instantly, Appellant argues “[t]he trial court erred in holding that as a
matter of law [Appellant] assumed the risk of her injury, relieving
[Appellees] of a duty to care, notwithstanding the fact that many factual
issues remain on said conduct taken by both [Appellant] and [the]
defendants in this case.” Appellant’s Brief at 10. Specifically, Appellant
argues she “did not subjectively know she was walking on ice before her fall.
While she saw ice and snow ahead of her, she was attempting to negotiate
around it safely, when she fell.” Id. at 13. Appellant then quotes various
portions of her deposition and posits as follows.
None of the statements are referred to in the
trial court’s opinion, and each and every one of them
suggests that [Appellant] was in fact trying to
exercise due care and caution, acknowledging at all
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times that the entire sidewalk was not fully covered
with ice and snow, but rather, that there were
patches of ice and snow that she chose to navigate
between and that in attempting to exercise care, she
slipped as a result of black ice being on the
pavement that she never saw which she thought was
pavement.
Id. at 20.
As Appellant’s claim sounds in negligence, she must establish that
Appellees owed her a duty, Appellees breached that duty, and that
Appellant’s injuries were a result of Appellees’ breach of duty. Casselbury
v. Am. Food Serv., 30 A.3d 510, 512-513 (Pa. Super. 2011); Cooper v.
Frankford Health Care Sys., Inc., 960 A.2d 134, 140 n.2 (Pa. Super.
2008) (citation omitted), appeal denied, 970 A.2d 431 (Pa. 2009).
Furthermore, Appellant has the burden of proving all of the above elements.
Feeney v. Disston Manor Pers. Care Home, Inc., 849 A.2d 590, 594 (Pa.
Super. 2004), appeal denied, 864 A.2d 529 (Pa. 2004).
Moreover, “[t]he standard of care owed to an individual by a possessor
of land depends upon whether the individual is a trespasser, licensee or
invitee.” Banks v. Trustees of Univ. of Pa., 666 A.2d 329, 331 (Pa.
Super. 1995) (citations omitted). When a plaintiff is on a defendant’s
premises as a business invitee, as is the case here, this Court has
recognized the following duty of the landowner.
§ 343 Dangerous Conditions Known to or
Discoverable by Possessor
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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.
RESTATEMENT (SECOND) OF TORTS § 343. Further, this section should be read in
conjunction with the following.
§ 343A Known or Obvious Dangers
(1) 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.
Id. § 343A.
In Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983), our Supreme
Court held that “to say that the invitee assumed the risk of injury from a
known and avoidable danger is simply another way of expressing the lack of
any duty on the part of the possessor to protect the invitee against such
dangers.” Id. at 125. Carrender was a patient attending an appointment at
a chiropractic clinic when she slipped and fell on ice in the clinic’s parking
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lot. Id. at 121. Carrender testified at trial that while sitting in her car she
became aware of the slippery conditions in the parking lot, and that there
was a sheet of ice covering the area next to her car. Id. at 121-122.
Despite the fact that she acknowledged there were clear areas in the parking
lot where she could have moved her car, Carrender attempted to maneuver
through the ice on which she fell and fractured her hip. Id. at 122.
Carrender admitted that she saw the ice but testified that she tried to avoid
it. Id. Based on Carrender’s testimony our Supreme Court held “that
[Carrender]’s own testimony compels the conclusion that, as a matter of
law, [the clinic was] under no duty either to take precautions against or to
warn of the isolated patch of ice on the parking lot.” Id. at 123.
Accordingly, the Carrender Court concluded as follows.
In light of [Carrender]’s uncontradicted testimony, it
must be concluded that the danger posed by the
isolated patch of ice was both obvious and known,
and that [the clinic] could have reasonably expected
that the danger would be avoided. Thus,
[Carrender] failed to establish the element of duty
essential to a prima facie case of negligence, and
[the clinic was] therefore entitled to a judgment
notwithstanding the verdict.
Id. at 124.
This Court has adhered to the holding of Carrender.
In Carrender[], which remains controlling
precedent in Pennsylvania, our Supreme Court
established that assumption of the risk is, as the trial
court explained, a function of the duty analysis:
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Appellee misperceives the relationship
between the assumption-of-risk doctrine and
the rule that a possessor of land is not liable to
his invitees for obvious dangers. When an
invitee enters business premises, discovers
dangerous conditions which are both obvious
and avoidable, and nevertheless proceeds
voluntarily to encounter them, the doctrine of
assumption of risk operates merely as a
counterpart to the possessor’s lack of duty to
protect the invitee from those risks. By
voluntarily proceeding to encounter a known or
obvious danger, the invitee is deemed to have
agreed to accept the risk and to undertake to
look out for himself. It is precisely because the
invitee assumes the risk of injury from obvious
and avoidable dangers that the possessor owes
the invitee no duty to take measures to
alleviate those dangers. Thus, to say that the
invitee assumed the risk of injury from a
known and avoidable danger is simply another
way of expressing the lack of any duty on the
part of the possessor to protect the invitee
against such dangers.
Montagazzi [v. Crisci], 994 A.2d [626,] 635–36
[(Pa. Super. 2010)] (quoting Carrender, 469 A.2d
at 125).
Longwood v. Giordano, 57 A.3d 163, 167 (Pa. Super. 2012), appeal
denied, 79 A.3d 1099 (Pa. 2013).
Upon careful review of the evidence, viewed in the light most favorable
to Appellant as the non-moving party, we are compelled to agree with the
trial court’s conclusion that summary judgment in favor of Appellees was
proper. The facts herein are substantially analogous to the facts in
Carrender. At Appellant’s deposition on March 6, 2014, Appellant testified
that on the date of the incident she had initially gone to the Promenade to
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buy sneakers at Sneaker King. N.T., 3/6/14, at 29. Appellant testified that
the walkway leading to Sneaker King was clear of snow, ice, and slush, and
to her recollection was completely dry. Id. at 41. She then headed to Ann
Taylor Loft, and on the walk there approached people working on removing
snow from the road adjacent to the sidewalk. Id. at 44. Appellant then
identified five photographs she took on her iPhone from the ground where
she had fallen. Id. at 48-49. The pictures indicated snow, slush and ice on
the sidewalk, which Appellant conceded she observed at the time, but that
she “tr[ied] to walk on the cleared-off space[.]” Id. at 52. Appellant
described the condition of the sidewalk as follows.
It was fine when I left the sneaker store. It was
okay making the right turn there. As I got to the
corner, I saw that there was snow - - I knew I was
going to have to be careful because it was snow and
ice there at the end there. In the area I fell in, that’s
why I took the pictures of it.
Id. at 171. She further testified as follows.
Q. And when you saw these conditions, you knew
they were dangerous?
A. I had to be very careful where I walked.
Q. Did you know they were dangerous?
A. I knew I saw snow and ice.
Q. Did you know they were dangerous?
A. Snow and ice, yes. Yes.
….
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Q. Why did you not, at that point, simply turn
around and walk back over the fine, dry sidewalk to
your car?
A. Because I - - I saw spots that I thought were dry
and I just kept going.
Q. Was there any reason why you could not have
simply turned around and went back to your car?
A. No. I could have. No.
Id. at 173.
As the foregoing testimony clearly illustrates, Appellant became aware
of the ice and snow on the sidewalk in front of her. Appellant’s testimony
further reveals that, although aware of the dangerous condition she was
approaching, she chose to traverse the area anyway hoping to avoid the ice.
As in Carrender, Appellant became aware of the obvious danger of walking
on the ice and therefore Appellees could reasonably have expected that the
risk would be avoided. Based on the forgoing, we agree that Appellant
cannot establish a prima facie case for negligence, and as a result summary
judgment was properly granted. See Casselbury, supra; Cooper, supra;
Feeney, supra.
Based on the foregoing, we conclude that Appellant’s sole issue on
appeal is devoid of merit. Accordingly, we affirm the trial court’s November
6, 2014 order granting summary judgment in favor of Appellees.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/2015
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