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HomeMy WebLinkAbout2003-419 Civil KATHY G. PEACHEY and BARRY L. PEACHEY, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. WAL-MART STORES, INC., DEFENDANT 03-0419 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT OPINION AND ORDER OF COURT Bayley, J., April 5, 2005:-- On February 2,2001, at approximately 6:30 p.m., plaintiff, Kathy G. Peachey, fell in the parking lot of defendant Wal-Mart Stores, Inc. in Mechanicsburg, Cumberland County. She fractured her pelvis for which she seeks damages in this suit alleging the negligence of defendant. Plaintiff testified in a deposition that she parked her car in the parking lot and went into the store. As she was returning to her car, approximately twenty minutes later, she slipped on a smooth patch of ice near another parked car. The ice was smooth and shiny enough to reflect the parking lot lights. There had been no snowfall for approximately two weeks prior to February 2,2001. Wal-Mart had a contractor plow the lot after the snowfall, and the snow was pushed into piles. Plaintiff testified that at the time she fell the lot appeared generally clear and dry. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for examining a motion for summary judgment. A court: [m]ust view 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, Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In 03-0419 CIVIL TERM order to withstand a motion for summary judgment, a non-moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93,101-102,674 A.2d 1038, 1042 (1996). Citing Roland v. Kravco, Inc., 355 Pa. Super. 493 (1986), defendant argues that when injuries to a pedestrian are sustained by falling on snow and ice it must appear that there was a dangerous condition due to ridges or elevations which were allowed to remain for an unreasonable length of time. The doctrine of "hills and ridges" is "a longstanding and well entrenched legal principle." Morin v. Traveler's Rest Motel, Inc., 704 A.2d 1085 (Pa. Super. 1997). However, in Tonik v. Apex Garages, Inc., 442 Pa. 373 (1971), plaintiff fell on a crack in a public sidewalk where ice had formed. There had been no recent precipitation. The Supreme Court of Pennsylvania, noting an exception to the "hills and ridges" doctrine, stated: [p]roof 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. . . . 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. See also Williams v. Shultz, 429 Pa. 429 (1968); Bacsick v. Barnes, 234 Pa. Super. 616 (1975). In the case sub judice, plaintiff claims that she fell on a localized patch of ice in a parking lot. It had not snowed for over two weeks. Therefore, the "hills and ridges" doctrine is not applicable. Even when proof of hills and ridges is not required it is still necessary for plaintiff -2- 03-0419 CIVIL TERM to prove that defendant had actual or constructive notice of the existence of the hazard or a condition giving rise to the hazard. Bacsick v. Barnes, supra. That means that defendant knew of or reasonably should have known of the hazard. Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 1997). Plaintiff testified in her deposition that she did not recall where she parked in the parking lot other than the store was to her left. When she came out she took the same path that she had come from before. It was dark. "It happened so fast. . . Before I knew it I was flat on the ground." She could not say even if she felt her feet slip, it happened so quickly, although she did not trip over anything. She got up right away, and saw the reflection of the light on ice. She was embarrassed and hurried to her car. She did not talk to anybody. She drove home not realizing the extent of her injury: Q. Is this the only ice patch that you saw in the Wal-Mart parking lot? A. When I went in I wasn't looking and when I came out all I did was turn around and looked to see where I fell, what happened, so I didn't notice. I didn't look for any other ice. Q. Okay. That's what I meant too. You didn't come across any other ice patches? A. I didn't look for them but, no, I couldn't - - I can't say yes or no because I wasn't looking for them. Q. Okay. But this is the only one you saw? A. Yes, because it was right where I fell. I mean, it was right in the general area, so I did not look in the rest of the parking lot. . . . And: Q. Do you know how long that ice patch had been there before you came upon it? A. I have no idea. I don't go there - - I didn't go there very often. Q. Do you know what the source of whatever was frozen was? Do you know that I mean? A. No. I know typically around here they'll take parking lots and pile snow up In one area. -3- 03-0419 CIVIL TERM Q. Okay. Did you see any snow piled up in the area? A. I didn't look, to tell you the truth. I'm sure it was dark when I got there and it was dark when I left and I wasn't - - I have no idea. I wasn't looking. . . . Q. Do you know if this was frozen water as opposed to like frozen Pepsi or another liquid substance? A. I have no idea. I didn't go back and look at it. There is no evidence that defendant had actual knowledge of the existence of the ice on which plaintiff claims she fell. As to constructive notice, plaintiff argues in her brief: Wal-Mart had specific knowledge that melting snow in the daylight hours could later turn to icy patches. Wal-Mart knew that its agents piled mounds of snow in areas throughout its parking lot. Wal-Mart knew that liquids were spilled in its parking lot. It is reasonable to expect that motorists traveling from communities which have experienced recent precipitation in the form of snow or ice, may have snow and ice fall from their parked vehicles, which melt and then later turns to ice. During the winter months Wal-Mart knew that patches of ice could form in its lot from a variety of causes other than general climatic events. However, Wal- Mart admittedly only monitored the sidewalk near its store's entrance. Wal-Mart employees monitored the parking lot, not for patches of ice, but only errant shopping carts, trash and broken glass. Reasonable care by its employees who monitored the parking lot could have easily identified icy spots and corrective action could have been taken. The practice and method of monitoring ice patches and distributing anti-skid or de-icing material utilized on Wal-Mart's front sidewalk could easily have been applied to the walkway in Wal-Mart's parking lot. There can be no question that Wal-Mart would have discovered the dangerous condition of the ice patches in its parking lot, as described by Mrs. Peachey, if it had exercised reasonable care. In fact, the Store manager testified that it had many employees monitoring the parking lot, but such employees would neither report nor engage in remedial action if they had notice of ice or spilled liquid in the parking lot. The problem with this argument is, that while plaintiff has some theories, there is no evidence from which a jury could draw a reasonable inference as to what caused the -4- 03-0419 CIVIL TERM isolated patch of ice that plaintiff claims she fell on. Although there may have been piles of snow in the parking lot there is no evidence that the patch of ice formed as a result of runoff from such a condition. Furthermore, there is no evidence as to how long the patch of ice was present before plaintiff fell. Thus, plaintiff is unable to present sufficient evidence whereby a jury could reasonably conclude that Wal-Mart had constructive notice of the condition which she claims caused her injury. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of April, 2005, the motion of defendant for summary judgment, IS GRANTED. By the Court, Edgar B. Bayley, J. Joseph D. Buckley, Esquire For Plaintiff John A. Burgess, Esquire 525 William Penn Place Suite 3700 Pittsburgh, PA 15219 F or Defendant :sal -5- KATHY G. PEACHEY and BARRY L. PEACHEY, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. WAL-MART STORES, INC., DEFENDANT 03-0419 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT ORDER OF COURT AND NOW, this day of April, 2005, the motion of defendant for summary judgment, IS GRANTED. By the Court, Edgar B. Bayley, J. Joseph D. Buckley, Esquire For Plaintiff John A. Burgess, Esquire 525 William Penn Place Suite 3700 Pittsburgh, PA 15219 F or Defendant :sal