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HomeMy WebLinkAbout94-5453 CivilROBERT L. STAMMEL and DARLA STAMMEL, husband and wife, Plaintiffs VS. GIANT FOOD STORES, INC. and KIMCO DEVELOPMENT OF GIANTS, INC., Defendant VS. MICHAEL B. STONER, individually, and MICHAEL B. STONER, t/a BUILDING AND BUILDING MAINTENANCE, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94-5453 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER. P.J. AND HESS. J. ORDER AND NOW, this ! '/' day of January, 1998, the motion of the defendant for summary judgmem is GRANTED. Robert F. Claraval, Esquire For the Plaintiff BY THE COURT, Douglas B. Marcello, Esquire For the Defendant :rim ROBERT L. STAMMEL and DARLA STAMMEL, husband and wife, Plaintiffs VS. GIANT FOOD STORES, INC. and KIMCO DEVELOPMENT OF GIANTS, INC., Defendant VS. MICHAEL B. STONER, individually, and MICHAEL B. STONER, t/a BUILDING AND BUILDING MAINTENANCE, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94-5453 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J. AND HESS, J. OPINION AND ORDER Before us is a motion for summary judgment by the defendant, Kimco Development of Giants, Inc., against the plaintiffs, Robert L. Stammel and Darla Stammel. This action was initiated by the plaintiffs on September 23, 1994. Robert Stammel allegedly slipped and fell on a sheet of ice in the rear parking lot of a Giant Food Store located at 121 Gettysburg Pike, Mechanicsburg. The Giant is part of a mall owned by the defendant, and the defendant owns the property where the accident allegedly occurred. A motion for summary judgment should be granted where the pleadings, discovery, and affidavits reflect no genuine issue of material fact. Loyal Christian 94-5453 CIVIL Benefit Association v. Bender., 342 Pa. Super. 614, 617, 493 A.2d 760, 762 (1985); Pa.R.C.P. 1035 (b). A summary judgment should only be entered in those cases that are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa. Super. 425,430, 456 A.2d 100, 1011 (1983). The court must accept as true all well pleaded facts in the plaintiff's pleadings, and give the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Just v. Sons of Italy Hall, 240 Pa. Super. 416, 418, 368 A.2d 308, 310 (1976). Nevertheless, Pa.R.C.P. 1035 (d) provides that where a motion for summary judgment has been supported by depositions, answers to interrogatories or affidavits, the non-moving party may not rest merely on the allegations of his pleadings. "Where the allegations of the non-moving party's pleading have been controverted by the moving party's supporting material, the non-moving party must by affidavit, or in some other way provided for by the rule, set forth specific facts showing that a genuine issue of material fact exists." Tom Morello Construction Co., Inc. v. Bridgeport Federal Savings and Loan Association., 280 Pa. Super. 329, 334-5,421 A.2d 747, 750 (1980). The facts in the light most favorable to the plaintiff are as follows: On December 28, 1992, Robert Stammel (Stammel), was delivering food products for his employer, Nabisco. After completing ten deliveries in the York area, Stammel's last delivery was to the Giant where the accident occurred. According to Stammel, there had been freezing rain all day long throughout his delivery route. (Dep. of Stammel at 13) Prior to arriving at the Giant, he was aware that the freezing rain had affected the roads 2 94-5453 cIVIL and parking lots and he had encountered some problems driving due to the conditions. (Dep. of Stammel at 13-15) Upon arrival at the Giant, Stammel backed his truck into a downward sloping ramp where the unloading bays were located. Because the trucks are backed flush against the loading bay, the drivers are required to walk up the ramp and enter the Giant from a side door on the ground level. Stammel was aware of the icy conditions on the ramp, but the ice had been crushed by the trucks using the ramp, so he remembers having good traction on his ascent. (Dep. of Stammel at 20-21) It was when Stammel reached the top of the ramp, where the surface turned from concrete to macadam, that he noticed that the ground was covered by a sheet of ice. (Dep. of Stammel at 27) As he rounded the first pole of the railing guarding the ramp area, he lost his footing and all of his weight fell on his right shoulder, causing injury. Stammel claims in the complaint that his injuries were caused by the defendant's negligence, and Stammel's wife bases a loss of companionship claim on her husband's injuries. The defendant's motion for summary judgment~ is based on two grounds. First, Kimco claims that it had no duty to remove the ice causing the accident, and, second, to the extent that it had a duty, it claims that Stammel assumed the risk of walking on the ice. Furthermore, the defendant argues that if Stammel's negligence claim should not I Kimco Development of Giants' motion for summary judgment is actually the motion that was originally drafted by the defendant Giant Food Stores, Inc., who was previously dismissed. Kimco has adopted the original motion in full. 3 94-5453 CIVIL survive summary judgment then neither should his wife's derivative consortium claim. We agree that summary judgment should be granted in this case. There is no argument that on the day of the accident there were generally slippery conditions. In Pennsylvania, the doctrine of hills and ridges provides that an owner or occupier of land is not liable when generally slippery conditions prevail, for to require that one's walks [or parking lots] be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions of this hemisphere. Snow and ice on pavement create merely transient danger, and the only duty on the property owner or tenant is to act within a reasonable time after notice to remove it when it is in a dangerous condition. Gilligan v. Villanova University, 401 Pa. Super. 113, 116-17, 584 A.2d 1005, 1007 (1991); See also Roland v. Kravco, Inc., 355 Pa. Super. 493,513 A.2d 1029 (1986) (applying the hills and ridges doctrine to an icy parking lot). Recovery for a fall on an ice- or snow-covered sidewalk or parking lot, under generally slippery conditions, is allowed only if the plaintiff proves: (1) that snow and ice had accumulated on the sidewalk in ridges or 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; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Gilligan, 401 Pa. Super. at 116-117, 584 A.2d at 1007. In this case, Stammel admits that the 94-5453 CIVIL surface he slipped on was smooth ice. (Dep. of Stammel at 33-34) The defendant, moreover, is protected from liability because of the generally slippery conditions of the day. Thus, the common law doctrine of hills and ridges prevents a finding of liability in just this sort of case. We briefly address the argument contained in plaintiffs brief that the defendant was negligent in failing to remove the ice after some salting had been done by a Giant employee. In a case with very similar facts, Morin v. Traveler's Rest Motel. Inc., No. 1626, 1997 WL 752134 (Pa. Super. Dec. 8, 1997), the plaintiff who slipped in a motel's parking lot, argued that the defendant/motel created a duty to exercise reasonable care in salting and sanding the parking lot based on the motel manager's voluntary undertaking to salt and sand parts of the lot. Relying on Restatement (Second) of Torts Section 323 (1965), the court disagreed. Section 323 states that a person who voluntarily undertakes to render services for another is subject to liability to others for his failure to exercise reasonable care to perform his undertaking if: (a) his failure to exercise such care increases the risk of harm, or (b) the harm is suffered because of the other's reliance upon the undertaking. The court found that the act of salting did not increase the risk to the plaintiff, and there was no evidence that the plaintiff relied on the salting. Likewise, in this case, the salting which was done by the Giant employee on the day of the accident, in the general area of the accident, did not increase the risk of harm, and there is no evidence that Stammel even knew of the salting. 94-5453 CIVIL AND NOW, this ! ~t ° summary judgment is GRANTED. ORDER day of January, 1998, the motion of the defendant for BY THE COURT, Robert F. Claraval, Esquire For the Plaintiff Douglas B. Marcello, Esquire For the Defendam :rlm Hess, J.