HomeMy WebLinkAbout92-1756 CivilKEITH A. PETTY,
Plaintiff
V.
SIDNEY I. KELLAM,
SHIRLEY E. KELLAM, AND
SUPER FRESH FOOD
MARKETS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 1756 CIVIL 1992
IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BEFORE BAYLEY and OLER. JJ.
ORDER OF COURT
AND NOW, this 30 tay of November, 1993, upon careful consideration of
Defendants' Motion for Summary Judgment, the Motion is DENIED.
BY THE COURT,
J. Wesley 0(65: r. J.
Barbara Sumple-Sullivan, Esq.
549 Bridge Street
New Cumberland, PA 17070
Attorney for Plaintiff
Thomas A. Lang, Esq.
2931 North Front Street
Harrisburg, PA 17110
Attorney for Defendants Kellam
Thomas P. Wagner, Esq.
George P. Tahan, Esq.
The Widener Building
One South Penn Square
Philadelphia, PA 19107
Attorneys for Defendant Super
Fresh Food Markets, Inc.
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KEITH A. PETTY,
IN THE COURT OF COMMON PLEAS OF
Plaintiff
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
SIDNEY I. KELLAM,
SHIRLEY E. KELLAM, AND
SUPER FRESH FOOD
MARKETS, INC.,
Defendants
NO. 1756 CIVIL 1992
IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BEFORE BAYLEY and OLER. JJ.
OPINION AND ORDER OF COURT
Oler, J.
At issue in the present case is a motion for summary judgment filed by Sidney
I. Kellam and Shirley E. Kellam (Defendants -Kellam) and joined by Super Fresh Food
Markets, Inc. (Defendant -Super Fresh), in a negligence action initiated by Keith A.
Petty (Plaintiff). For the reasons set forth in this Opinion, Defendants' motion is
denied.
Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment
"shall be rendered if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law." In this regard, "Whe moving party has the burden of proving the
nonexistence of any genuine issue of fact." Thompson Coal Co. v. Pike Coal Co., 488
Pa. 198, 204, 412 A.2d 466, 468-69 (1979). "The record must be examined in the light
most favorable to the nonmoving party." Schacter v. Albert, 212 Pa. Super. 58, 62, 239
A.2d 841, 843 (1968). Additionally, "[a]11 doubts as to the existence of a genuine issue
No. 1756 Civil 1992
of a material fact must be resolved against the moving party." Thompson Coal Co. v.
Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 469 (1979). A court should grant
summary judgment "only in the clearest of cases, where the right is clear and free from
doubt." Id. In accordance with this standard, the facts of this case may be
summarized as follows:
On July 26, 1991, Plaintiff drove with his eight-year-old son, Elliot Petty, to the
Super Fresh Food Market in the Summerdale Plaza, located at Routes 11 and 15 in
Enola, Cumberland County, Pennsylvania, to purchase some groceries.' The
Summerdale Plaza is owned by Defendants-Kellam.2
As Plaintiff and his son entered the parking lot of the Summerdale Plaza, it
began to rain, causing all the exterior surfaces to be wet.' Plaintiff parked his truck
approximately 100 feet from the front of the Super Fresh store.' Plaintiff exited from
the driver's side and his son from the passenger's side, whereupon Plaintiff's son
darted ahead of him across the parking lot toward the door of the store.' Plaintiff,
who was wearing sandals at the time, 'Jogged" across the parking lot, looking directly
' Deposition of Keith A. Petty, January 12, 1993, N.T. 4, 10, 74 (hereinafter Petty
Deposition, N.T. _); Plaintiff's Complaint, paragraphs 3, 4.
2 See Stipulation of Substitution of Named Defendants, paragraph 1.
' Plaintiff's Complaint, paragraph 7.
4 Petty Deposition, N.T. 16.
' Petty Deposition, N.T. 16, 74-75.
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No. 1756 Civil 1992
ahead at his son.'
There is a sidewalk in front of the Super Fresh store and a curb that had been
painted yellow, with the paint extending approximately twelve inches along the surface
of the sidewalk.' Upon reaching this curb, Plaintiff glanced down in order to
determine where he was going to land on the sidewalk, at which time he noticed the
yellow paint on the curb.' However, as he stepped onto the sidewalk, Plaintiff was
once again looking straight ahead and did not see exactly where his foot came down -9
When Plaintiff placed his left foot on the sidewalk, it slid out from under him,
and he lost his balance. As a result, Plaintiffs left leg was thrown into the air and
impacted a railing to the right of where he stepped on the curb.10 Plaintiff stated in
his deposition that he believes that he planted his foot on the painted portion of the
sidewalk, although he can not say so with certainty." Plaintiff' son, who was
present at the time, did not witness the fall since he was looking away. 12 Another
person in the vicinity, Joseph Kriner, an employee of the Super Fresh store, was
6 Petty Deposition, N.T. 16, 76.
7 Plaintiff"s Complaint, paragraph 9; Kriner Deposition, Exhibit 3.
a Petty Deposition, N.T. 76-77.
9 Petty Deposition, N.T. 77.
10 Petty Deposition, N.T. 20.
11 Petty Deposition, N.T. 77-78.
12 Deposition of Elliot Petty, April 20, 1993, N.T. 24-27.
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No. 1756 Civil 1992
unable to see Plaintiff's foot from his vantage point in the store, and thus was unable
to testify as to whether Plaintiff's foot landed on the painted area of the sidewalk."
Following Plaintiffs fall, an ambulance was summoned, and he was transported
to Holy Spirit Hospital, Camp Hill, Pennsylvania.14 As a result of the fall, Plaintiff
had to have the toenail removed from his left great toe and sutures placed in that
toe." The toe was also x-rayed, but the x-ray was inconclusive as to whether or not
there was a fracture.18 Plaintiff later had to undergo several physical therapy
treatments because of an infection in the toe.17 Following these treatments, the
infection was resolved.18 Approximately eight or nine months following Plaintiff's fall,
he had to consult with a podiatrist because, when the toenail grew back, it was
ingrown.19 Other than the aforementioned problems, Plaintiff has been able to
resume his activities at the same level as they had been prior to the accident, with no
13 Deposition of Joseph Kriner, July 16, 1993, N.T. 12-13.
14 Petty Deposition, N.T. 36.
16 Petty Deposition, N.T. 38.
16 Petty Deposition, N.T. 39. Plaintiff later consulted an orthopedic surgeon who
determined that there was a slight bone fragment present in the toe but was unable to say
whether it was the result of the accident or had been present since birth. Petty Deposition,
N.T. 57.
17 Petty Deposition, N.T. 49-53.
1a Petty Deposition, N.T. 53.
19 Petty Deposition, N.T. 54.
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No. 1756 Civil 1992
lingering effects.20
Plaintiff commenced this action with a complaint against Summerdale Plaza,
Inc., and Super Fresh Food Markets, Inc., filed on May 12, 1992, alleging that his
injuries were the direct result of Defendants' negligence in that the painting of the
sidewalk created an unreasonable risk of injury to business visitors, presenting a
hazardous and unsafe condition that led to his injuries.21 Additionally, Plaintiff
contends that Defendants failed to give warning as to the dangerous condition caused
by the painted sidewalk, especially in rain.22 Upon Plaintiffs discovery that
Summerdale Plaza, Inc., had no ownership interest in the property in question and
that the property was solely owned by Shirley E. Kellam and Sidney I. Kellam, a
stipulation was filed for substitution of the appropriate parties.23
Oral depositions were taken in the case. On August 10, 1993, Defendants -
Kellam filed a Motion for Summary Judgment, which was joined by Defendant -Super
Fresh on September 1, 1993. Defendants' motion alleges that Plaintiff is unable to
establish a prima facie case of negligence because there is no evidence that the
allegedly hazardous condition (the painted surface of the sidewalk) caused Plaintiff's
20 Petty Deposition, N.T. 62.
21 Plaintiff's Complaint, paragraph 16W.
22 Plaintiffs Complaint, paragraph 16(B).
23 See Stipulation to Substitution of Named Defendants.
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No. 1756 Civil 1992
fall.24 Consequently, Defendants seek summary judgment in their favor.
"A business visitor is a person who is invited or permitted to enter or remain on
land in the possession of another for a purpose directly or indirectly connected with
business dealings between them." Kimble v. Mackintosh Hemphill Co., 359 Pa. 461,
470, 59 A.2d 68, 72 (1948). The duty owed by the owner of a store to his or her
business invitees is set forth in Section 343 of the Restatement (Second) of Torts. This
section provides that
[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 (1965); see Myers v. Penn Traffic Co., 414 Pa.
Super. 181, 185, 606 A.2d 926, 928 (1992), allocatur denied, _ Pa. _, 620 A.2d 491
(1993). However, the "possessor of land is not an insurer of his business invitees, and
plaintiffs evidence must establish some degree of negligence on defendant's part in
order to recover." Winkler v. Seven Springs Farm, Inc., 240 Pa. Super. 641, 646, 359
A.2d 440, 442 (1976), aff d, 477 Pa. 445, 384 A.2d 241 (1978).
24 Motion for Summary Judgment of Defendants Sidney I. Kellam and Shirley E. Kellam,
paragraph 23.
D
No. 1756 Civil 1992
"[T]he mere existence of a harmful condition in a public place of business, or the
mere happening of an accident due to such a condition is neither, in and of itself,
evidence of a breach of the proprietor's duty of care to his invitees, nor raises a
presumption of negligence." Moultrey v. Great A & P Tea Co., 281 Pa. Super. 525,
530, 422 A.2d 593, 596 (1980).
On the other hand, "even though a plaintiff cannot recover by merely proving
that an accident happened, `it is ... axiomatic that circumstantial evidence may provide
appropriate and adequate proof of negligence and proximate cause.' Harvilla v.
DelCamp, [521 Pa. 21, 25, 555 A.2d 763, 764 (1989)]." Bowers v. Adams Wholesalers,
42 Cumberland L.J. 536, 540 (1993). "Whether ... [a] plaintiff has demonstrated, by
a preponderance of the evidence, that [a] defendant's negligent conduct was a
substantial factor in bringing about the plaintiffs harm, is normally a question of fact
reserved for the jury ...." Alumni Association v. Sullivan, 369 Pa. Super. 596, 602, 535
A.2d 1095, 1098 (1987), aff'd, 524 Pa. 356, 572 A.2d 1209 (1990).
Thus, in Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991), the Pennsylvania
Supreme Court held the granting of summary judgment against a slip -and -fall plaintiff
to have been error, notwithstanding the fact that attribution of the accident to a
sidewalk defect was entirely dependent upon inference. In Marks, the plaintiff, who
was "legally blind," tripped over something on the sidewalk and fell. While a
photograph of the sidewalk showed a large hole or depression in the block of the
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No. 1756 Civil 1992
sidewalk where, according to his companion's testimony, the plaintiff's feet were
immediately following the fall, neither the plaintiff nor the companion saw the
plaintiff's foot came in contact with the hole or depression. The Court held that the
fact that plaintiff tripped and fell and that his companion tested that the plaintiff's
feet were in the area of the hole in the sidewalk were sufficient to create a genuine
issue of material fact as to causation. Id. at 135-37, 589 A.2d at 206-07.
In the present case, Plaintiff was allegedly a business invitee on the premises
of Defendants. Plaintiff contends that as a result of the painted surface on the
sidewalk and curb, combined with the rain, he slipped and fell, causing injuries to his
person. Although Plaintiff cannot say that he saw his foot come down on the painted
portion of the curb, he avers that he looked down just prior to stepping on the curb
and that he believes he landed on the painted surface. As in Marks, a fact -finder could
reasonably infer from the circumstances, with respect to causation, that Plaintiff
stepped on the painted portion of the sidewalk. Should the Plaintiff also prove that
this condition represented an unreasonable risk of harm to persons in Plaintiff's class,
a recovery would not be impermissible as a matter of law.
For these reasons, the following Order will be entered:
ORDER OF COURT
AND NOW, this: ' 'qday of November, 1993, upon careful consideration of
No. 1756 Civil 1992
Defendants' Motion for Summary Judgment, the Motion is DENIED.
Barbara Sumple-Sullivan, Esq.
549 Bridge Street
New Cumberland, PA 17070
Attorney for Plaintiff
Thomas A. Lang, Esq.
2931 North Front Street
Harrisburg, PA 17110
Attorney for Defendants Kellam
Thomas P. Wagner, Esq.
George P. Tahan, Esq.
The Widener Building
One South Penn Square
Philadelphia, PA 19107
Attorneys for Defendant Super
Fresh Food Markets, Inc.
:rc
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr. J.
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