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Home My WebLink About94-02588 , .c.' . (IJ ()o l() o . . . Vl CI: W ..J n. M Z ~ o . E J!I;. X>- I-< XI- ClJ OZ I- ..... U::J ..... ..... 0 .... .,.... C I- ~ ~~ ffi I ~ l!.U ..... w..... l1J Z 0 > >- C '0 .... 0 '.... 1-'.... C ct ! IU 0 I-ZCI: U l1J .ClJ .J a:C2:H ..... Vl..... 0- · ijf ::J..JZ ~ "n. C2:ClJ :E oa:CI: .JO 0 uw> 1;; w ..J U 1ll..J Vl 0 WX>- CI: ~ J:::JVl w I-UZ a: > >- Z I C2: a: Zl!.W q ..J C2: HOn. 0\ U :E ~ ~ 'it .c '-I. 01 ? ' "~ ~;) ~ t 11- \.- " .... \~ ' . ~q . - ,., L4.l .... 4) ~ ..l) . W 0 ).l , ~ , " '. U1 ).,) .. '" . ~ ,. "" -t' l.j , -,'- .::.r; ..:! f<1 '"" :;. . ., ~ y i ( :... t...::.... LAW OfFICES Of STEPHEN J. HOOG 401 E, LOUTHER STREET CARLISLE, PA 17013 CLAREASE J. TYE, Plaintiff I IN THE COURT OF COMMON I PLEAS OF CUMBERLAND I COUNTY, PENNSYLVANIA I I 94- .15 5~' civil Term I I v. MARY KOLLAS, Defendant COMPLAINT Plaintiff Clarease J. Tye, by her attorney, stephen J. Hogg, Esquire, files this aotion alleging the following: 1. Plaintiff is Clarease J. Tye, an adult individual residing at 49 1/2 W. High Street, Carlisle, Cumberland County, Pennsylvania. 2. Defendant is Mary Kollas, an adult individual residing at 1104 Fernwood Avenue, Camp Hill, Cumberland County, Pennsylvania. 3. Defendant at all times relevant to this aotion has been the sole owner of record of real estate identified as a parking lot between Blondie's Inn at 49 West High Street and Fast Eddie's Billiard Parlor at 37 West High street, Carlisle, Cumberland county, Pennsylvania. 4. On or about February 26, 1993, at or about 5:30 p.m. prevailing time, the Plaintiff was lawfully crossing the Defendant's premises on foot using due care and caution. 5. On or about the above time and date, the aforementioned premises were covered with ice and snow which had been partially removed but still completely covered the premises and which had been permitted to remain there for a substantial period of time. LAW OfFICES Of STEPHEN J. HOGG 401 E. LOUTHER STREET CARLlBLE, PA 17013 6. On the aforementioned date and time, the surface of the premises was completely covered with bumps and ridges of ice and snow such that the Plaintiff or anyone else lawfully on the premises had no clear, safe place to walk which rendered the premises dangerous and unsafe to use. 7. On the aforementioned date and time, Plaintiff was in the process of crossing the Defendant's premises using due care and caution when she slipped on the ice and fell. 8. As a direct and proximate result of the Plaintiff's fall as aforesaid, she suffered a fractured right ring finger, low back sprain and bruises, contusions and the like. 9. The Plaintiff's injuries as set forth above were a direct and proximate result of the Defendant's negligence, carelessness and recklessness as follows I a. failing to properly clear ice and snow from her premises; b. failing to maintain the premises with due care; c. failing to warn Plaintiff and others lawfully on the premises about the accumulation of ice and snow on the premises I and d. failing to inspect the premises for an accumulation of ice and snow sufficiant to constitute a dangerous and unsafe condition. 10. The Defendant knew or should have known by the exercise of reasonable and ordinary care that the ice and snow were accumulated on the surface of the premises making it dangerous and unsafe. I", ~ -:1 -., -::r ~ ~:'>- ..... l"l "., !,. t', 11, Hill AJlt III Itlt., NI QUI"t II 10 r1H I ""IIIlN N'....O~"1 .'11111 II'ClO'ltll Yllll1l111\1lfoN1YIIOI Pin fRON URVler 111 RlO' Olf .. WIH,"4llH Nl, III INlfnth Ili/UNU 'OU, Rl OOUGI.A5. DOUGLAS 6. DOUGLAS ...lTd'n'Hftjo Al.lAW 1'''1'''',,,';'''''' ,.. 0 IHll ,,,, ""Olltf' 'Wl no IltArn, tUlllrY 1HAr IHl WlfHIH II.. 'Rut AttO cORlner copr 0' THE ORlo!""1 flU D. IN litiS ACTION. D' ____._. ""OAtlry . GEORGE F. DOUGLAS, JR., ESQUIRE ATTORNEY 1.0. '06270 DOUGLAS, DOUGLAS & DOUGLAS 27 W. High St. P.O.Box 261 Carlisle, Pa, l7013 Telephone I 7l7-243-l790 Attorney for Defendant CLAREASE J. TYE I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA. I CIVIL ACTION LAW NO. 94-2588 CIVIL TERM V. MARY KOLLAS I ANSWER 1. Admitted. 2. Admitted. The defendant's correct address is l56 Belvedere St., Carlisle, Pa. l70l3. 3. Admitted. 4. Denied. The parking lot was for those tenants who rented parking spaces on the said parking lot. The plaintiff chose to use this parking lot, rather than the public aidewalk. She was either a trespasser, or at most a licensee. The plaintiff assumed the risk as it had recently snowed. 5. Denied. It had stopped snowing just two hours before the plaintiff fell. 6. Denied. There were no bumps, hills, or ridges The only snow was that which had fallen earlier on the same day. 7. Denied. The answer to paragraph 4 is incorporated herein by reference thereto. 8. Denied. After reasonable investigation, the defendant is without knowledge as to the extent of the plaintiff's injuries. 9. Denied. The answers to paragraphs 4 and 5 are incorporated herein by reference thereto. lO. Denied. The answers to paragraphs 4 and 5 are incorporated herein by reference thereto. CLAREASE J. TYE IN TIlE COURT OF CO~lMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-2588 CIVIL 19 VS. MARY KOLLAS RULE 1312-1, The Petiti~n for Appointment of Arbitrators sholl be substantially in the following form: PETITION FOR APPOINTIIENT OF ARBITRATORS TO THE HONORABLE. THE JUDGES OF SAID COURT: George F. Dooglas, Jr. . counsel for the lOMlI~Wdefendant in the above action (or actions), respectfully represents that: 1. TIle above-captioned action (or actions) is (ore) Jt issue. 2. The claim of the plaintiff in the action is $ 25.000.00 TIle counterclaim of the defendant in the action is none The fo1101ling attorneys are interested in the case(s) liS counselor nre other- wise disqualified to sit os arbitrators: Stephen J. !loRR, ESQuire WHE~RE. your petitioner prays your arbig'ator~ io whom the case shall be ""I"": t.., ~-r '.. ~-:: ~, i; .~ r;; " en " Honorable Court to appoint three (3) submitted. " RespectfU~y submit=ed, :) - I . /\~q..,/ 1 i ~/' '" .... ORDER OF COURT ~D NOW, {\ u-C I L !. -l J CJ , 19...2.L., in consideration of the foregoing petition, It.': dvv-'- Ii (G. \/~ IA,v~I Esq.. j)n \', cI _~ fa ill r.._ Esq" and h(,.J) 11'.1") L 1./ II / / f.. / ,Esq., are appointed arbitrators in the above-captioned action (or actions) as prayed for. B he Court, I / ~ L..L.L' P. J. r -...9.. ~ r-- .::>- - r6 ~ - t ::l\: "=# ~~ -:r.- """ ~ - ;0;:= B~ - r- .-1 1.A ~ - '- <",/ ~ -' "., -.., lOll "'" "''''11' ""/llltltt' tll "ll . """ltllh II' -'"''';''' 'fill I In.ln',." Ylo I' ,,,.. t >'I' PI I I 1 inf 1141~, IIIUIII !:,IRYICI IlIlfllll "l' ,.. jlj~,."'lliI ~" pt Ihll 11111 AhAltHI ""Oil ., {)t)lJGl AS DCllJ'"~lA!, ^' DOIJCiL-\r. , , W[ 00 IlIU,,,, 0"11" lIur 1In I'IIHIH Is,. U<lll AN'll!tl!ulI t:f em'r 0' lIll OplGlNU liMn IN JIll' ~l. ''(IN. ~.' i 'IIU I ..~ I "1'0 "'n,." "'hIIlNI, "III(,.I.lf,tl/l' '!\/',I', ,,, HloUrut .. '. " J, A37042/93 was approximately one inch of snow on the ground and that gener- ally slippery conditions existed throughout central Pennsylvania as a result of the precipitation. On November 13, 1991, at the close of appellant's case-in- chief, the trial court granted a compulsory non-suit because appellant failed to introduce evidence tha~ the ice or snow had accumulated in ridges and elevations, 'f On November 25, 1991, appellant filed a motion for post-trial relief. The trial court denied the motion and this timely appeal followed. Appellant now presents the follO\~ing issue upon appeal: I'Ihether, in light of Pennsylvania law as re- flected in the Restatement (Second) of Prop- erty (Landlord and Tenant) !i 17,3, the doctrine of 'hills and ridges' bars a tenant from making out a I2dma facie case of liabil- ity against her landlord for failure to dis- cover and remedy a slippery condition caused by ice ponding in an asphalt depression which caused her to fall and sustain injury[?] Preliminarily, we note our standard of review: In reviewing a grant of a compulsory nonsuit, we are cognizlnt that: [i] t has long be~n settled that a compulsory nonsu it can only be granted in cases 'Nhere it is clear that a cause of a,:l:ion has not been established. The lJlaintiff must be given the benefit" of all favorable evidence along with all reasonable inferences of fact arising from that evidence. Any conflict in the evi- dence must be resolved in favor of the plaintiff . , , \~e must there- fore review the evidence to deter- mine whether the order entering judgement of compulsory nonsuit was proper. Coatesville Contractors and Enaineers. Inc. v. Borouah of Ridley .!:lU:k, 509 Pa. 553, 559-60, 506 A.2d - 2 - .'. : J. A37042/93 862, 856 (1986) (citations omitted); Corbett v, Weisband, 380 Pa. super. 292, 551 A.2d 1059 (1988), Gorfti v. Montqomerv, 384 Pa. Super. 256, 261- 62, 558 A,2d 109, 112 (1989), alloc, denied, 524 Pa. 60B, 569 A.2d 1367 (1989). Eisenhauer v. Clock Towers Associates, 399 Pa. Super. 238, ___, 582 A.2d 33... 36 (1990), 'f Essentially, this appeal asks us to rule that our long- standing doctrine of "hills and ridges" should not apply as between landlord and tenant. We decline to so hold. Where a plaintiff has fallen upon aryicy sidewalk, the doctrine of "hills and ridges" requires three items of proof if plaintiff is to successfully maintain a negligence action: It is encumbent upon a plaintiff in such situ- ation to prove: (1) that snow and ice had ac- cumulated on the sidewalk in ridges or eleva- tions 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; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Absent proof of all such facts, plaintiff hall no basis for recovery. See Miller v. City Ice & Fuel Co" 363 Pa, 182,184, 69 A.2d 140; ~lilburn v. l<niqhts of columbus Horne Association, 167 Pa. Super, 509, 511, 76 A.2d 466. Rinaldi v, Levine, 406 Pa. '/01, ,_, 176 A,2d 623, 625-26 (1962). ~ also Harmotta v, Bender, 411 Pa, Super, 371, 601 A,2d B37 (1992), allocatur denied, 530 Pa, 655, 60B A.2d 30 (1992). The doctrine of "hills and ridges" serves an important purpose. It recognizes that in the northern climate in which our Commonwealth lies, it is a common happenstance of winter weather - 3 - J, A3704:l/93 that snow and ice will often be found on the ground and sidewalks, The doctrine further recognizes that under such a climate, it would be imposoible to maintain grounds and sidewalks such that they arB alwayo free of snow and ice. See Wentz v, Pennswood AUAl1nwn1D, 359 Pa, Super. 1, 518 A.2d 314 (1986), allocatur Wul.i.!ul. 515 Pa, 585, 527 A,2d 545.(1987), what the doctrine of " "hillu and ridges" effectively does is to set the standard of conduct under these limited circumstances by which the reasonable- neUII of the owner's actions shall be judged. And the failure to preoont evidence of the existence of such hills and ridges is fatal to a plaintiff's cause. Appellant herein would have us carve out an exception to this doctrine in the arena of landlord/tenant. Appellant bases his argument on section 17.3 of the Restatement, Second, Propertv (ullilill.Ql.1L~lld Tenant) (1977), which reads: li1'1,3 Partu of Retained Control Entitled Leased Property in Landlord's Which Tenant Is to Uue A landlord who leases a part of his prop- erty and retains in his own control any other part the tenant is entitled to use as appurte- nant to the part leased to him, is subject to liability to his tenant and others lawfully upon the leased property with the consent of the tenant Ot' a subtenant for physical harm caused by a dangerous condition upon that part of the leased property retained in the land- lord's control, if the landlord by the exer- cise of reasonable care could have: (1) discovered the condition and the unreasonable risk involved therein; and (2) made the condition safe, - 4 - . .. .' , , " J. A37042/93 " Restatemen~, Second, prooertv (Landlord and Tenant) S 17.3 (1977) . Initially, we observe that we are aware of no Pennsylvania statute or decision adopting this section of the Restatement as the law of this Commonwealth, Appellant calls our attention to Am1er v, Hafflev, 312 Pa, Super. 424, 458 A.2d ~,364 (1983), and " Rivera v Selfon Home Re airs and Im rovements Com a , 294 Pa, Super, 41/ 439 A,2d 739 (1982), However, both of these cases involve a discussion of section 17.6/ of the Restatement, Landlord Under Legal Duty to Repair Dangerous condition, rather than section 17.3 Furthermore, even if section 17.3 had specifically . '., been adopted, we do not believe that it necessarily conflicts with the doctrine of hills and ridges. In such a case, the doctrine of hills and ridges could be viewed as defining "the exercise of reasonable care" as it is used by section 17,3; where hills and ridges have not formed in snow and ice deposited on the landlord's walkways, reasonable care does not require its removal. To the extent that comment d, illustration 9 is in conflict with this interpretation,l we hold that section 17,3 must yield to the 1Restatement, Second, Prope~~ (Landlord and Tenant) S 17.3, comment d, illustration 9 states as fo\lows: d. Tvpes of danqel"OUS conditions covered, The rule stated in this section may apply to all types of dangerous conditions -- natural and artificial, obvious and latent. Furthermore r the rule applies both to dangerous conditions existing at the time of the transfer of the leased premises and to dangerous conditions arising thereafter. The point in time at which the dangerous condition came into exis- tence is only important as a factor in deter- mining whether the landlord by the exercise of reasonable care could have discovered the con- - 5 - .' , , J. A37042/93 settled wisdom of the doctrine of hills and ridges. Appellant also contends that expanded liability for landlords is warranted. Appellant argues that unlike a business invitee who has a choice whether to travel a snowy pathway, a tenant has no choice but to use such snow or ice covered sidewalks in order to reach a place of residence. Although we concede that there is '. '''; usually a greater necessity for a tenant to traverse the land- lord's property than for an invitee to cross a business person's threshold, we can conceive of instancp.s where this might not be the case. A person in search of food must get ~o a grocery store, A person suffering a medical emergency must get to a hospital, While there may be opportunity to shop for a business that has cleared its walkways, if the snowfall is recent, none such may be found. Finally, although no Pennsylvania case has resolved the issue presented herein in precisely the terms as couched by appellant, we feel that Wentz v, Pennswood Apartments, supra, is substan- tially on point. Wentz applied the doctrine of hills and ridges dition and whether he has had a reasonable time to make it safe. Illustration: 9. L leases to T an off ice in his office build- ing. Ice and snow have collected on the front steps of the building as as [sic] result of a very recent snowstorm. While leaving the building, A, a dental pat ient of T, slips on the steps and is injured. Whether L is sub- ject to liability to A depends on whether, through his agents or otherwi,~, L is found to have had notice of the dangerous condition and to have had the opportunity to remedy it. - 6 - L\<lI-eu,'- -.) T7'" In The Court of C~cmon Pleas of 'M I' 1'-\( I,o~t II ~ ) ) 1 ) ) ) ) Cumberland County, ~ennsy1van1a ~ (, lIo. 1'-1, :;I!j b ~ 19 OA7il tie do solemnly swear (or affirm) that we will support. obey and de rend the Constitution of the United States and the C~nstitutio~ or this Co~on- ~ealth and that we yill discharge the duties or our orfice yith fidelity. -::r en ". , ,---J,,(J' /," 1:+. cJ., . 1..' ..~. li.l...... Chalr:nan -c c_ Col LI' \l)~~ ~~~~~ ....WARD 0- U c-.;:> We, the undersigned arbicracors, having been duly appointed and sworn (or affirmed), make che following award: (Note: If damages for delay are awarded, they shall be separately scaced.) We. ,~ H1I l ~ h \.~ v.." ('"' r: '1- \,' ~)~ ,:. ..,l., i ".".\ .\'1':'1'" _I ta, (' ,'IL..., t.. \.....- . Arbitracor, dissencs. (Insert name 1: applicable. ) ~ate of Hear:.ng: L!, \ (~ I'i't 0{ ::late of Award: u( I' 'I Ii'lY , -;t:- " 1 /.'. '1- ~.l'. II.... Chair:nan \O::tl., ., /'~i\(.f ~OTICE OF ENTRY OF AWARD ~ow. che {I'(~ day or m~, t~luV' ,19J.i. ac t.s..=, i.::I., award was encered upon the docket and nocice :hereof given by ~i1 ?arties or their attornevs. the above to the Arbitrators' coopensation :0 be paid upon appeal: S J..(~{\ tL\ 3y: