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HomeMy WebLinkAbout98-0411 CivilJAMES D. REIBER, IV and LYNDA L. REIBER, Plaintiffs WILLIAM H. HOOKE and KURT E. SUTER, individually and t/d/b/a HOOKE AND SUTER, a Pennsylvania General Partnership, Defendants : IN THE COt:JRT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 98-411 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY and OLER. JJ. ORDER OF COURT AND NOW, this 2~gtay of December, defendants' motion for summary judgment, and 1999, upon consideration of for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, J~esley Oler, Jr ,(~J. Andrew J. Ostrowski, Esq. Suite 201, 2080 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiff Stephen E. Geduldig, Esq. Michele J. Thorp, Esq. THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Defendants :rc JAMES D. REIBER, IV and LYNDA L. REIBER, Plaintiffs Vo WILLIAM H. HOOKE and KURT E. SUTER, individually and t/d/b/a HOOKE AND SUTER, a Pennsylvania General Partnership, Defendants IN DIE COURT OF COMMON PLEAS OF C U MBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 98-411 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT Oler, J., December 23, 1999. In this slip-and-fall-on-ice case, plaintiffs have sued the owners of premises where the fall allegedly occurred for negligence. For disposition at this time is a motion for summary judgment filed by defendants. Defendants' motion for summary judgment is premised upon (a) the absence of evidence of hills and ridges at the site of the allegedly dangerous condition on the premises and (b) the absence of evidence that defendants had actual or constructive notice of the allegedly dangerous condition. The matter was argued on October 13, 1999. For the reasons stated in this opinion, defendants' motion for summary judgment will be denied. STATEMENT OF FACTS The record in this case, for present purposes,~ consists of plaintiffs' complaint, defendants' answer to the complaint with new matter, defendants' motion for summary judgment, plaintiffs' answer to the motion for summary judgment, a deposition of plaintiff James D. Reiber, a deposition of defendant Kurt E. Suter, and a deposition of Andi H. Meloi, defendants' property manager. This record is to be "examine[d] in the light most favorable to the party opposing the motion." 3 Goodrich-Amram 2d §1053.3(c):1, at 348 (1998); see Watkins v. Hospital of University of Pennsylvania, 737 A.2d 263 (Pa. Super. 1999). Plaintiffs' complaint alleged that on January 24, 1996, plaintiff James D. Reiber, IV, slipped and fell on ice while a business invitee on defendants' premises at Penrose Plaza in Carlisle [Cumberland County], Pennsylvania.2 As a result of the fall, Mr. Reiber sustained a broken leg, inter alia, and plaintiff Linda L. Reiber suffered a loss of consortium, according to the complaint.3 Deposition testimony of Plaintiff James D. Reiber, IV, supported the allegations of the complaint as to the fall.4 He indicated that the premises where he fell were a strip mall.5 1 2 3 4 (hereinafter N.T. __ See Pa. R.C.P. 1035.1. Plaintiffs' complaint, paragraphs 1-10. Plaintiffs' complaint, paragraphs 16-19. N.T. 14, 26, Deposition of James D. Reiber, IV, [Reiber Deposition] ). September 22, 1998 2 He testihed that on January 24, 1996, which was a cold, cloudy day without precipitation~ at a~,out 2:30 p.m.,6 he had purchased two items at a convenience store at the mall,7 and had started to retum to his nearby home on foot.8 He descended steps at the end of a sidewalk that ran along the storefronts at the mall, according to his testimony.9 As he began to traverse a paved traffic area of the mall, he stated, he turned and slipped on black ice that appeared merely wet.~° The area where he fell, which was slightly sloped, was typically icy and neglected, according to his testimony,il He stated that he had complained in the past to defendants' maintenance man about inadequate snow and ice removal measures at the mall.12 He testified that in his opinion the condition had resulted from a freezing and refreezing process which was not subjected to proper remedial treatment. 13 A 5 N.T. 15, 18 (Reiber Deposition). 6 N.T. 14 (Reiber Deposition). 7 N.T. 21-22 (Reiber Deposition). 8 N.T. 21, Plaintiffs' Exhibits 1-2 (Reiber Deposition). 9 N.T. 26, Plaintiffs' Exhibits 1-2 (Reiber Deposition). ~0 N.T. 26-31, 72, Plaintiffs' Exhibits 1-2 (Reiber Deposition). i1 N.T. 38-39 (Reiber Deposition). 12 N.T. 24-25 (Reiber Deposition). ~3 N.T. 31 (Reiber Deposition). 3 storm had occurred a week or two prior to the incident,TM his son had fallen on ice at the mall a week before his injury, and the son's fall had been reported to one of defendants' commercial tenants, according to his testimony.15 Plaintiff testified that the sidewalk and steps which he had been walking on were dry.16 Snow that had been plowed on an earlier occasion was resting against two dumpsters nearby, according to his testimony.~7 In addition, an accumulation of snow or ice lay in an "overflow" area between the steps and the dumpsters, he stated, is Andi H. Meloi, defendants' property manager, testified that salting and cindering by defendants' maintenance personnel was limited to the parking areas in front of the mall stores,~9 that the maintenance personnel cleaned the mall sidewalk,2° and that an independent contractor plowed the lots.2~ At times, it was 14 N.T. 47 (Reiber Deposition). 15 N.T. 47-49 (Reiber Deposition). ~6 N.T. 26 (Reiber Deposition). ~? N.T. 28, Plaintiffs' Exhibits 1-2 (Reiber Deposition). ~8 N.T. 28 (Reiber Deposition). 19 N.t. 17, Deposition of Andi H. Meloi, May 26, 1999 (hereinafter N.T. __ [Meloi Deposition] ). 20 N.T. 19 (Meloi Deposition). 2~ N.T. 11-19 (Meloi Deposition). 4 defcndants' practice to shovel snow from mall roofs into the lot area, according to hoc t~'~-timony.22 With respect to inspections of the premises, Ms. Meloi testified as follows: Q Do you have inspections done of the common areas of the premises? A Yes. Q What types of inspections do you have performed? We'll limit this to the parking area all the black top on the Penn Rose Plaza? A We check the condition. Q Is there any routine or standard practice for how that's conducted? A No. Q And when you say we check the condition, is there a specific condition that you have in mind or you direct someone to go out and inspect the premises and report anything that's wrong? A That's correct. Q And you have given that instruction, is that - A That's correct. Q Do you recall when in relation to January 24th, 1996, you my have last given that instruction? 22 N.T. 29-31, 45 (Meloi Deposition). 5 A No, I do not. Q Do you recall when after January 24th, 1996, you next gave that instruction? A No. Q Can you estimate whether you give that instruction more than once a year? A Yes. Q More than twice? A I don't know. Q Are there any times that you can recall giving that instruction, any specific times where you remember, hey, I told Joe Some that he should go out and look at the parking lot? A No. Q Do you have any personal practice for when you would tell someone to go out and look at the premises or look at the parking areas of the premises? A No.23 DISCUSSION Rules pertaining to motion for summary judgment. Civil Procedure 1035.2 provides as follows: Pennsylvania Rule of 23 N.T. 39-40 (Meloi Deposition). 6 After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) 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, or (2) 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. "[T]he mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial." Ertel v. Patriot-News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1042 (1996). On a motion for summary judgment, a court "should not attempt to resolve conflicting contentions of fact or conflicting inferences, which may be drawn from such facts .... Summary judgment is an 'eyes-only' procedure, which does not allow for a factual hearing." 6 Standard Pennsylvania Practice 2d, 32:113, at 257 (1994). Duty of possessor of land to business invitee. Under the Second Restatement of Torts, it is provided as follows with respect to the duty of a possessor of land to a business invitee; A possessor of land is subject to liability for physical harm caused to his invitees by a condition of the land if, but only if, he 7 (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 invilccs. 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 (1965). This rule has been adopted in Pennsylvania. See, e.g., Kieh~ter v. School District of Pennsylvania, 712 A.2d 830 (Pa. Commw. Ct. 1998). Hills and ridges doctrine. One of the bases for defendants' motion for summary judgment in the present case is that the area where plaintiff James D. Reiber, IV, allegedly fell consisted of snow and ice in a configuration of hills and ridges. When Pennsylvania's "hills and ridges" doctrine is applicable, an injured plaintiff must show (1) that snow and ice had accumulated ... 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 a condition, and (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Rinaldi v. Levine, 406 Pa. 74, 78-79, 176 A.2d 623,625-26 (1962). A limitation upon the application of the hills and ridges doctrine has been described by the Pennsylvania Commonwealth Court as follows: The doctrine of "hills and ridges" is not, however, applicable to all situations. As the Supreme Court has stated in specifically limiting its holding in Rinaldi: Proof of 'hills and ridges' is necessary only when it appears that the accident occurred at a time when general slippery conditions prevailed in the community, which is not the case here. See Williams v. $chultz, 429 Pa. 429, 240 A.2d 812 (1968), and many supporting cases cited therein. Where, as here, 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). Mahanoy Area School District v. Budwash, 146 Pa. Commw. 72, 75, 604 A.2d 1156,1158 (1992). Thus, in Mahanoy Area School District, which involved a slip and fall on ice, the Commonwealth Court reversed a lower court's grant of summary judgment on behalf of a defendant premised upon the hills and ridges doctrine, where it could not be said that general slippery conditions were prevailing in the community. Mahanoy Area School District v. Budwash, 146 Pa. Commw. 72, 75, 604 A.2d 1156, 1158 (1992). In the case sub judice, where evidence was adduced tending to show that some areas of the mall itself were dry, and where the record would not compel a finding that slippery conditions of the type allegedly encountered by plaintiff were prevailing in the community, summary judgment in favor of defendants on the 9 ground that plaintiffs had not shoxvn the cxistencc of hills and ridges at the accident site would not be appropriate. Notice of allegedly dangerous condition. The second basis for defendants' motion for summary judgment in the present case is the absence of evidence that defendants had actual or constructive notice of the allegedly dangerous condition upon their premises. In this regard, it may be noted that, where applicable, "constructive notice requires that the dangerous reasonable inspection." See Commonwealth v. condition be apparent upon Penus),lvania, Department of Transportation v. Patton, 546 Pa. 562, 566, 686 A.2d 1302, 1304 (1997). Factors to be considered in determining whether one had had constructive notice of a dangerous condition include the frequency of inspections of the premises and the duration of the unsafe condition. See Henze v. Texaco, Inc., 352 Pa. Super. 538, 544, 508 A.2d 1200, 1203 (1986). As previously mentioned, liability of a possessor of land to a business invitee injured upon the premises may arise where the possessor knows or by the exercise of reasonable care wouM discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee. In this case, where evidence is present in the record tending to show that a snowstorm had occurred a week or two prior to plaintiff's alleged fall, that defendants had a practice of shoveling snow from the mall roof onto the pavement below, that the premises contained slippery ice as much as a week prior to plaintiff's alleged fall, that reasonable inspections of the premises may not have occurred around the time of 10 the alleged fall, that the premises were typically neglected, and that prior complaints as to icy conditions had been made,24 the court is not in a position to hold as a matter of law that a fact-finder could not conclude that defendants should have discovered the allegedly dangerous condition at the time of the incident in question. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 23rd day of December, 1999, upon consideration of defendants' motion for summary judgment, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Andrew J. Ostrowski, Esq. Suite 201, 2080 Linglestown Road Harrisburg, PA 17110 Attorney for Plaintiff Stephen E. Geduldig, Esq. Michele J. Thorp, Esq. THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Defendants 24 The recitation of this evidence is not intended to express an opinion of the court as to its accuracy. 11