Williams vs. Greentree Village, Mitchell L. Morgan Management and Bachman’s Roofing Building and Remodeling Inc. No. 2011-02305

Civil Action-Law-Negligence-Slip and Fall-Contract for Snow Removal-Motion for Summary Judgment

Plaintiff, who was a resident of Greentree Village apartment complex over which Mitchell L. Morgan Management a/k/a Morgan Properties has an interest, filed a Complaint in Negligence against Defendants, asserting that he sustained injuries when he slipped and fell on an unsalted parking lot owned by Greentree Village for which Bachman’s Roofing Building and Remodeling (“Bachman’s Roofing”) was contracted to provide snow removal services. Defendant Bachman’s Roofing filed a Motion for Summary Judgment asserting that since the contract for snow removal vests responsibility with Greentree Village to inspect and to approve the snow removal and salting of the property, liability lies with Greentree Village alone for any injury occurring on its parking lot.

1. The purpose of summary judgment is to avoid unnecessary trials and to eliminate the waste of time and resources of both litigants where a trial would be a useless formality.

2. Pa.R.C.P. Rule 1035.2 provides that after the pleadings are closed, any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense that could be established by additional discovery or expert report or if, after the completion of discovery, the adverse party fails to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issue to be submitted to a jury.

3. A nonmoving party must adduce sufficient evidence on an issue essential to the case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce such evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

4. In considering the merits of a motion for summary judgment, the court must view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

5. The elements of a cause of action in negligence are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury and actual loss. The test of negligence is whether the alleged wrongdoer could have anticipated and foreseen the likelihood of harm to the injured party resulting from his act.

6. Where a party to a contract assumes a duty owed to the other party to the contract and it is foreseeable that a breach of that duty will cause injury to some third person who is not a party to the contract, the contracting party owes a duty to all those falling within the foreseeable orbit of the risk of harm.

7. The record establishes the existence of a genuine issue of material fact as to whether Bachman’s Roofing adequately and reasonably performed its contractual duty of snow and ice removal from Greentree Village parking lot.

L.C.C.C.P. No. 2011-02305, Opinion by Samuel A. Kline, Judge, April 14, 2016.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION No: 2011-02305

JOHN M. WILLIAMS, Plaintiff,

v.

GREENTREE VILLAGE, MITCHELL L. MORGAN MANAGEMENT a/k/a MORGAN PROPERTIES, AND BACHMAN’S ROOFING BUILDING AND REMODELING, INC., Defendant

ORDER

And now, to wit, this 14^th day of April, 2016, upon consideration of the Defendant’s Motion for Summary Judgment, the parties’ briefs, oral argument and the record of the case, the Motion for Summary Judgment is DENIED.

BY THE COURT:

SAMUEL A. KLINE, J.

APPEARANCES:

Joseph A. Crowe, Esq. for the Plaintiff

Steven Snyder, Esq. for the Moving Defendant

Armand C. Pace Jr., Esq. for the Non-Moving Defendant

OPINION, KLINE, J., April 11, 2016

Before the Court is Defendant Bachman’s Roofing Building and Remodeling, Inc.’s (hereinafter “Bachman’s Roofing”) Motion for Summary Judgment. For the reasons set forth herein, we deny the Motion for Summary Judgment, as specified below.

FACTS AND PROCEDURAL HISTORY

The facts giving rise to John M. Williams’s (hereinafter “Williams”) Complaint in negligence are as follows. Williams was a resident at Greentree Village, an apartment complex, in 2009. Greentree Village or Morgan Properties (hereinafter “Greentree”) entered into a contract with Bachman’s Roofing for snow removal services for the winter of 2009-2010. The contract provided the following language:

4. Contractor must clear all parking lot areas of the apartment community including paved areas all pedestrian paths such as sidewalks, steps, porches, all entrances with special attention to fire hydrants, handicapped ramps, or spaces, mailboxes, dumpsters, storm sewers, emergency accesses, main roads, driveways and parking lot drainage grates. Contractor must clear around all dumpster/trash containers in order to facilitate trash pick-up services…these areas are marked on the site map labeled Exhibit B. Snow plowing must be done in such a manner as not to plow in any fire hydrants, mailboxes, dumpsters, or vehicles parked within designated areas.

5. Contractor will apply rock salt (asphalt surfaces) and calcium (concrete surfaces) at the completion of every snow/ice storm, once the property cleanup is complete unless otherwise rejected by the property. Pre-salting may be necessary and is recommended for all anticipated snow falls.

See Plaintiff’s Brief in Opposition to Defendant Bachman’s Roofing’s Motion for Summary Judgment, Exhibit A.

Furthermore, the contract between Greentree and Bachman’s Roofing provided a job description, which states in relevant part:

Upon completion by contractor, contractor’s work must be inspected and accepted by Agent or Owner.

Agent or Owner may at any time have its employees or other representative inspect contractor’s performance to determine if the job is being or has been done as agreed to. Contractor agrees that is (sic) such a representative shall determine the job is not being performed properly or is otherwise unsatisfactory for any reason whatever and so notifies contractor thereof, contractor shall not do any further work toward completion of the job until Agent or Owner notifies contractor to proceed.

Contractor shall forever defend, indemnify and save Agent or Owner against every suit, claim demand, lien, judgment or any and all other expense arising in connection with any and all of these including reasonable attorney’s fees, for or on account of the violation of any law, whether local, state or federal or for personal injury or death to any person, or damage to any property which arises out of contractor’s performance of the job.

See Plaintiff’s Brief in Opposition to Defendant Bachman’s Roofing’s Motion for Summary Judgment, Exhibit A.

A snowstorm hit Lebanon, Pennsylvania on December 19, 2009 and December 20, 2009. Greentree contacted Bachman’s Roofing to provide snow removal services on December 19 and 20. Due to snowmelt and refreeze, Greentree contacted Bachman’s Roofing to salt the parking lot on December 21, 2009. Allegedly, before Bachman’s Roofing salted the parking lot on December 21, 2009, Williams was walking to his car through the unsalted parking lot when he slipped, falling backwards and landing on his left side, resulting in injury.

Williams filed his complaint on November 18, 2011, against the Defendants alleging that he sustained personal injuries on December 21, 2009 when he slipped and fell in a Greentree Village parking lot due to negligence on part of both Defendants for improper snow/ice removal. Greentree filed its Answer with New Matter and Crossclaims on January 25, 2012. Williams responded to Greentree’s New Matter on January 27, 2012.

Bachman’s Roofing filed its Answer to Greentree’s crossclaims, along with its own New Matter and Crossclaim, on May 3, 2012. Greentree responded to Bachman’s Roofing’s crossclaims on June 11, 2012. The Defendants filed summary judgment motions on August 27, 2013 and September 11, 2013. Williams filed his answer to the summary judgment motion on September 16, 2013. Thereafter, the parties agreed to a stipulation to consolidate the summary judgment motions on September 20, 2013. The summary judgment motions were denied on January 3, 2014. The current summary judgment motion, was filed by Bachman’s Roofing on December 30, 2015. Williams’s answer to the summary judgement motion was filed on January 13, 2016. Greentree filed its reply to the motion for summary judgment on January 22, 2016. Oral argument was heard on April 1, 2016 where all parties presented argument to this Court. The case is thus before us and ripe for disposition.

DISCUSSION

Motions for summary judgment are governed by Pa.R.C.P. 1035.2, which provides:

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.

Pa.R.C.P. 1035.2. The Supreme Court of Pennsylvania has stated:

The Pennsylvania Rules of Civil Procedure governing summary judgment instruct, in relevant part, that the court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action. In considering the merits of a motion for summary judgment, a court views 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. Finally, the court may grant summary judgment only when the right to such a judgment is clear and free from doubt.

Sevast v. Kakouras, 915 A.2d 1147, 1152-1153 (Pa. 2007) (citations omitted). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists.” Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). The purpose of summary judgment is to avoid unnecessary trials and to eliminate the waste of time and resources of both litigants where a trial would be a useless formality. Curran v. Children’s Service Center of Wyoming County, Inc., 578 A.2d 8 (Pa. Super. 1990). A comment to Pa.R.C.P. 1035.2 reads, “Oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact. See Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).”

In addition, Pa.R.C.P. 1035.3(a) requires the non-moving party to file a response to the moving party’s 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.” Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1207, footnote 15 (Pa. 2009).

Bachman’s Roofing argues that it is entitled to summary judgment because Greentree was responsible for inspecting and approving Bachman’s Roofing snow removal/salting of Greentree’s property. Under the snow removal contract, Greentree’s Maintenance Supervisor, Lonnie Reager (hereinafter “Reager”), had the responsibility of making sure the parking lots were safe and ice-free because Reager directed where Bachman’s Roofing plowed the snow and inspected Bachman’s Roofing’s work before leaving the property. Reager instructed Bachman’s Roofing to plow the snow from the parking lot into the corner, where Greentree always piled snow.

Bachman’s Roofing argues that because Reager was the final arbiter of Bachman’s Roofing’s work, liability remains with Greentree for any injury occurring on Greentree’s parking lots. Additionally, Bachman’s Roofing argues that there is no indication that a duty was ever breached because it performed its duties under the contract, which were to remove snow and ice to the satisfaction and approval of Greentree. Furthermore, there was no breach of a duty because Reager accepted the work performed by Bachman’s Roofing.

In response, Greentree and Williams argue that a genuine issue of material facts exists as to whether the performance of the snow plowing by Bachman’s Roofing, was conducted reasonably. Greentree specifically argues that Bachman’s Roofing had a duty to clear all parking lot areas of snow and ice, including the application of rock salt/calcium, re-salting when necessary. Greentree argues that this duty to clear the parking lots of all snow and ice did not end with Reager.

Finally, both parties argue that because summary judgment is only appropriate in the clearest of cases, it should not be granted here because a jury should determine if Bachman’s Roofing adequately and reasonably performed its duty.

The law is well-settled that:

…[N]egligence is defined as the absence of care under the circumstances[.] The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm to the injured person, resulting from his act[.] It is axiomatic that the elements of a negligence-based cause of action are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and actual loss.

Charlie v. Erie Ins. Exchange, 100 A.3d 244, 250 (Pa. Super. 2014). Furthermore, our Superior Court has stated:

Where a party to a contract assumes a duty to the other party to the contract, and it is foreseeable that a breach of that duty will cause injury to some third person not a party to the contract, the contracting party owes a duty to all those falling within the foreseeable orbit of risk of harm…It is a primary social duty of every person to take thought and have a care lest his action result in injuries to others. This social duty the law recognizes and enforces, and for any injury resulting from any person’s lack of elementary forethought, the law holds that person accountable.

Printed Terry Finishing Co., Inc. v. City of Lebanon, 372 A.2d 460, 466-67 (Pa. Super. 1977).

Upon a review of the record, in the light most favorable to the non-moving party, the Court cannot grant summary judgment because a genuine dispute as to a material fact exists. Specifically, there is a question as to whether Bachman’s Roofing adequately and reasonably performed its contractual duty of snow and ice removal from Greentree’s parking lot.

At oral argument, Bachman’s Roofing argued that as a sophisticated party, Greentree should have known that directing Bachman’s Roofing to pile the snow in the corner of the parking lot would result in slippery conditions when the snow melts and refreezes. However, in response to this argument, it was argued that Bachman’s Roofing is also a sophisticated company, specializing in snow and ice removal services. As such, it should have known that the placement of the snow would result in slippery conditions as well. It was also argued that there is a material question as to whether Bachman’s Roofing piled the snow in a reasonable manner because there was argument that Bachman’s Roofing piled the snow too high. To rule that there are no genuine issues of material fact would be an egregious error, and this Court would be improperly usurping the role of the jury.

For all the aforementioned reasons, the Motion for Summary Judgment is denied.

 

1) The Complaint was filed in Lebanon County on November 18, 2011 and received by the Berks County Sheriff’s Office on November 28, 2011.