HomeMy WebLinkAbout92-1047 CivilJAMES L. LEBO AND MARY LEBO, IN THE COURT OF COMMON PLEAS OF
his wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
RONALD C. BREHM AND
EDNA R. BREHM, his wife,
Defendants NO. 1047 CIVIL 1992
ORDER OF COURT
AND NOW, this �'�Lj day of October, 1992,
consideration of Defendants' Motion for Summary
briefs and oral arguments of the parties, anc
Defendants' Motion for Summary Judgment is GRANTED.
BY THE COURT,
J
Harold S. Irwin, III, Esq.
IRWIN, IRWIN & McKNIGHT
Counsel for Plaintiffs
William A. Addams, Esq.
FOWLER, ADDAMS, SHUGHART & RUNDLE
Counsel for Defendants
:rc
upon careful
Judgment, the
the record,
sley Oler,-)7r. , A '.
JAMES L. LEBO AND MARY LEBO, IN THE COURT OF C OMMON PLEAS OF
his wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - W
RONALD C. BREHM AND
EDNA R. BREHM, his wife,
Defendants NO. 1047 CIVIL 1 92
OPINION AND ORDER OF COURT
Oler, J.
At issue in the present case is a motion for
filed by Ronald C. Brehm and Edna R. Brehm (Defend
judgment
s) in response
to a negligence action commenced by James L. Lebo and Mary Lebo
(Plaintiffs) . For present purposes, the facts may bE summarized as
follows : 1
For a period of ten to twelve years, Plaintiff Mary Lebo had
visited Defendants' residence for the purpose of attending a
ceramic class which Defendant Edna R. Brehm con ucted in the
basement of Defendants' home.2 On March 20, 1990, at approximately
6:45 p.m., Ms. Lebo arrived at Defendants' home to Darticipate in
one of these classes.3 At that time, it was dark outside, and the
parking area and entrance into Defendants' basement were lighted.'
Additionally, because it was snowing, the concretes eps leading to
the basement were wet, but no snow had accumulated the steps or
1 Pursuant to Pa. R.C.P. 1035, this Court is c nsidering the
pleadings of both parties, as well as Mary Lebo's deposition, to
determine whether summary judgment is appropriate.
2 Deposition of Mary Lebo, May 8, 1992, N.T.
3 See Plaintiffs' Complaint, paragraph 3; Defen ants' Answer,
paragraph 3.
4 Deposition of Mary Lebo, May 8, 1992, N.T. -6.
1047 Civil 1992
surrounding area.'
Ms. Lebo proceeded around the right side of Defendants' house
in order to descend the concrete steps leading into Defendants'
basement.' While approaching the step, she was carrying a box
containing a ceramic lamb under her left arm, a basket with a
handle in her right hand, and a shoulder purse.'
Upon reaching the steps, Ms. Lebo noticed a white frisbee
lying on the top step.e This item was "about half o and half off"
the step and a "little over to the center of the ri ht -hand side"
of the step.'
Ms. Lebo then decided to remove the frisbee from the step "so
that it wouldn't be in the way.1110 In order to do so, she placed
the basket, which she was carrying in her right hand, on the ground
to her right." She then turned to her right to lace the box,
' See Plaintiffs' Complaint, paragraph 5; Defendants' Answer,
paragraph 5. 'II
' Deposition of Mary Lebo, p. 6. Plaintiffs allege that there
were ten steps leading into the basement. Plaintiffs, Complaint,
paragraph 4. On the other hand, Defendants contend that there were
only six steps. Defendants' Answer, paragraph 4. Whether there
were ten or six steps has no bearing upon the Court's determination
of the issues involved.
' Deposition of Mary Lebo, May 8, 1992, N.T. ]0.
8 Plaintiffs' Complaint, paragraph 8.
' Deposition of Mary Lebo, May 8, 1992, N.T. 11.
10 Deposition of Mary Lebo, May 8, 1992, N.T. �3.
11 Deposition of Mary Lebo, May 8, 1992, N.T. J4.
2
1047 Civil 1992
which was located under her left arm, on the groultd, beside the
basket.12 In the process, Ms. Lebo put her left foot down on the
top step, at which point she "lost her footing" and fell down the
stairs.13 In her deposition, she testified that she did not know
if she stepped on the frisbee or touched it.14
As a result of falling down the steps, Ms. Lebo allegedly
suffered several injuries, including a fracture of her left
ankle." Medical expenses and wage losses exceeding $13,000.00
have been pled.16 Additionally, Plaintiff James Lebo, Ms. Lebo's
husband, has sued for loss of consortium.17
Plaintiffs maintain that Defendants were negligent in the
following respects: (1) failing to install safety d vices, such as
a handrail, on the steps, (2) failing to salt or gravel the
concrete steps, and (3) failing to keep the staff ay clear from
obstacles, such as the frisbee.11 Plaintiffs seek damages in
excess of $10,000.00.11
12 Deposition of Mary Lebo, May 8, 1992, N.T. 14.
13 Deposition of Mary Lebo, May 8, 1992, N.T. 15-16.
14 Deposition of Mary Lebo, May 8, 1992, N.T. 16.
15 Plaintiffs' Complaint, paragraph 14.
16 Plaintiffs' Complaint, paragraph 15.
17 Plaintiffs' Complaint, paragraph 18.
1e Plaintiffs' Complaint, paragraph 13.
19 Plaintiffs' Complaint, ad damnum clause.
3
1047 Civil 1992
Pursuant to Pennsylvania Rule of Civil Plocedure 1035,
Defendants have requested this Court to enter summary judgment
against Plaintiffs. For the reasons set forth in this Opinion,
Defendants' Motion will be granted.
Summary judgment "shall be rendered if the p eadings [and]
depositions ... show there is no genuine issue as tD any material
fact and that the moving party is entitled to judgment as a matter
of law." Pa. R.C.P. 1035. In determining whether to grant a
party's motion for summary judgment, "the court nust view the
record in the light most favorable to the non-movant.11 McNeal v.
City of Easton, 143 Pa. Commw. 151, 155, 598 A.2d 63B, 639 (1991).
Furthermore, "[a]n entry of summary judgment may be granted only in
cases where the right is clear and free from doubt." Marks v.
Tasman, 527 Pa. 132, 134, 589 A.2d 205, 206 (1991).
In their brief, Plaintiffs state that "[t]he facts of the
incident are substantially as related by defendants in their brief"
and "refer the Court to Ms. Lebo's deposition transcript for a
complete recital. ,21 The only factual issue controverted by
Plaintiffs is whether Defendants had actual or constructive
knowledge of the frisbee on the steps.21 However, for the reasons
set forth in the remainder of this Opinion, this 's not a fact
material to the determination of this case. Since the case
20 Plaintiffs' Brief, at 3.
21 Plaintiffs' Brief, at 7.
4
1047 Civil 1992
contains no issues of material fact, it is ap
consideration for summary judgment.
It is well settled in Pennsylvania that, "in o
damages on a negligence theory, a plaintiff u
existence of a duty, breach of that duty and that
iate for
er to recover
t prove the
ie breach was
the proximate cause of the injury." McKnight v. City of
Philadelphia, 299 Pa. Super. 327, 331, 445 A.2d 778 780 (1982).22
"[W]here the plaintiff fails to establish one of [th se] elements,
... and there are no controverted issues of material act," summary
judgment is appropriate. 2 Goodrich Amram 2d, 1035, at 340
(1991). Unfortunately for the Plaintiffs in the pre ent case, the
circumstances are such that serious deficiencies a to liability
are evident with respect to both duty and causatio . Because of
these, the Court is constrained to grant Defendants' motion for
summary judgment.
With regard to duty, it may be noted that wher invitees are
injured by a dangerous condition existing upon t
which they were invited, the possessor of land will
if the possessor,
"(a) knows or by the exercise of reason
care would discover the condition, or sh
realize that it involves an unreasonable
of harm to such invitees, and
(b) should expect that they will not disc
22 See also Morena v. South Hills Health System
462 A.2d 680 (1983).
Ei
property to
liable only
uld
isk
ver
501 Pa. 634,
1047 Civil 1992
or realize the danger, or will fail to
themselves against it, and
ct
(c) fails to exercise reasonable care) to
protect them against the danger."
Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 123 (1983)
(citing Restatement (Second) of Torts §343 (1965)). Under this
theory of liability, the possessor owes an affirmative duty to
protect invitees from dangerous conditions existing apon the land.
Ovja v. City of Scranton, 65 Lack. Jur. 9 (1964). However, this
duty is limited in that the "possessor of land is not liable to his
invitees for physical harm caused to them by an activity or
condition on the land whose danger is known or obv ous to them."
Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 123 (1983)
[citing Restatement (Second) of Torts §343(a) (19E5)] (emphasis
added).23 When an invitee knowingly confronts a dangerous
condition while on the possessor's premises, the possessor is under
"no duty to take precautions or to warn of the [dangerous condition
on the property]." Id. at 184, 469 A.2d at 123.24
Since Plaintiff Mary Lebo admits to seeing the risbee on the
23 See also Malinder v. Jenkins Elevator and Ma hine Co., 371
Pa. Super. 414, 538 A.2d 509 (1988) (holding t at invitee's
assumption of the risk relieves landowner of duty to warn of
dangers); Ovja v. City of Scranton, 65 Lack. Jur. 9 ( 964) (holding
that possessor has no duty to guard against or warn f a condition
obvious to the invitee).
24 Comment a to Section 343A of the Restatemer
Torts (1965) provides that "[r]easonable care on tk
possessor does not ordinarily require precautions, or
against the dangers which are known to the visitor.'
0
t (Second) of
e part of the
even warning,
1047 Civil 1992
steps leading to Defendants' basement, its presence
obvious to her.25 Even if this frisbee constitut(
condition within the meaning of Section 343, Ms.
of its existence relieved Defendants of a duty
danger posed by the frisbee.
With regard to causation, it has been noted
elements which a plaintiff must prove in order
was known and
a dangerous
's knowledge
warn of the
t one of the
recover for
damages in a negligence action is that the defendait's breach of
duty was the proximate cause of the plaintiff's inj ry. McKnight
v. City of Philadelphia, 299 Pa. Super. 327, 445 A.2d 778 (1982).
In other words, " [ i ] n order for a negligent act tc give rise to
liability, that act must be a substantial factual cause of the
injury for which damages are sought." Dornon v. Johnston, 421 Pa.
58, 60, 218 A.2d 808, 809 (1966). In Plaintiffs, complaint,
reference is made to the absence of a handrail or. the concrete
steps, lack of salt and gravel on the steps, aE well as the
presence of the frisbee, as indicia of negligence.
However, the manner of Ms. Lebo'sfal is simply
unattributable as to causation. In her deposition, he stated that
25 Deposition of Mary Lebo, May 8, 1992, N.T. U. Generally,
"the question of whether a danger was known or obvious [to the
invitee] is ... a question of fact for the jury." Carrender v.
Fitterer, 503 Pa. 178, 186, 469 A.2d 120, 124 (19E3). However,
this "question may be decided by the court where reasonable minds
could not differ as to the conclusion." Id.
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1047 Civil 1992
she did not know why she fell down the steps.26 It is well settled
that "the mere happening of an accident does not constitute
evidence of negligence and -the burden (is] on plaintiffs to prove
... that [the defendants'] negligence was the proximate cause of
the accident." DiGiannantonio v. Pittsburgh RailwaY Co., 402 Pa.
27, 29, 166 A.2d 28, 30 (1960).27
Inasmuch as Plaintiff Mary Lebo's claim can not survive a
motion for summary judgment because of deficiencies in connection
with duty and causation, her husband's claim for loss of consortium
must also fail. A claim for loss of consortium is derivative of
the injured spouse's claim against the defendant. Ecatteregia v.
Shin Shen Wu, 343 Pa. Super. 452, 495 A.2d 554 (1985). "(T]he non-
injured spouse will be granted or denied recover, for loss of
consortium to the same extent that the injured spouse is granted or
denied recovery." Brenna v. Sabolsice, 13 D. & C.3 583 (Bedford
Co. 1980).
For these reasons, the following Order will be entered:
ORDER OF COURT
AND NOW, this ctt day of October, 1992, upon careful
consideration of Defendants' Motion for Summary Judgment, the
briefs and oral arguments of the parties, and the record,
26 Deposition of Mary Lebo, May 8, 1992, N.T.
2' See also Raibley v. Kanze, 220 Pa. Super. 446
(1972).
E
7, 13, 19.
289 A.2d 161
1047 Civil 1992
Defendants' Motion for Summary Judgment is GRANTED.
BY THE COURT,
J. Wesley Oler, Jr., 4.
Harold S. Irwin, III, Esq.
IRWIN, IRWIN & McKNIGHT
Counsel for Plaintiffs
William A. Addams, Esq.
FOWLER, ADDAMS, SHUGHART & RUNDLE
Counsel for Defendants
:rc
D