Elizabeth Williams v. Paramount Realty Services, Inc., Promenade East Investors, LLC, Blue Lagoon Pools, LLC, and Merit Service Solutions, Inc. No. 2015-00507

Civil Action-Law-Negligence-Summary Judgment-Slip and Fall-Shopping Center-Parking Lot-Slush-Localized Ice Patch-Drainage Pipe-Duty of Possessor-Business Invitee-Known and Obvious Danger-Hills and Ridges Doctrine-Liability of Third Party Contractor-Snow Removal-Indemnification Clause

Plaintiff filed a Complaint after allegedly falling and sustaining injuries in the parking lot of the Promenade at Lebanon shopping center in winter weather conditions, alleging negligence against Paramount Realty Services, Inc. (“Paramount”), the property management company in charge of the Promenade at Lebanon, Promenade East Investors, LLC (“Promenade East”), the owners of the shopping center, Merit Services Solutions, Inc. (“Merit”), the company contracted by Paramount to perform snow removal and Blue Lagoon Pools, LLC (“Blue Lagoon”), the company subcontracted by Merit to perform snow removal services at the shopping center. Defendants filed Motions for Summary Judgment asserting that they owed no duty to Plaintiff to warn her of known and obvious dangers, they did not owe a duty to the Plaintiff for ice and snow covered walks pursuant to “the Hills and Ridges doctrine” and Paramount, Promenade East and Merit cannot be liable to Plaintiff because they contracted and subcontracted snow removal services to Blue Lagoon.

1. The court shall enter judgment for the moving party when there is no genuine issue of any material fact as to a necessary element of a cause of action.

2. To prevail on a claim of negligence, the plaintiff must show that the defendant owed a duty of care for the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff and the plaintiff suffered an actual loss or damages. If the plaintiff fails to show one (1) of these essential elements, the defendant has valid grounds for summary judgment.

3. The duty of care owed to a business invitee is the highest duty owed to any entrant upon land. A landowner is under an affirmative duty to protect a business invitee not only against known dangers, but also against those dangers that might be discovered with reasonable care. A possessor of land is subject to liability if that possessor knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to the invitee, should expect that the invitee will not discover or realize the danger or will fail to protect him or herself against it and fails to exercise reasonable care to protect himself or herself against the danger. For a danger to be known, it must not only be known to exist, but it also must be recognized that it is dangerous with the probability and gravity of the threatened harm appreciated.

4. The question of whether a danger is known or obvious usually is a question of fact for the jury. However, the question may be deduced by the court where reasonable minds could not differ as to the conclusion.

5. The issue of whether the danger was known and obvious to Plaintiff is a question of fact for the jury, as Plaintiff indicated that she was aware only of the presence of slush in the parking lot, not of the presence of ice under the slush that was located in close proximity to an improperly placed drainage pipe.

6. Pursuant to the “hills and ridges” doctrine, the occupier of land is not liable for general slippery conditions, as to require one’s walks always to be free of ice and snow would impose an impossible burden in view of the climatic conditions in this hemisphere.

7. In order to recover for a fall on an ice and/or snow covered sidewalk, the plaintiff must prove: (1) the snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as unreasonably to obstruct travel and to constitute a danger to pedestrians traveling thereon; (2) the property owned had either actual or constructive notice of the existence of such condition; and (3) it was the dangerous accumulation of snow and/or ice that caused the plaintiff to fall.

8. Proof of “hills and ridges” is not required when the hazard is the result of a localized patch of ice as opposed to general slippery conditions prevailing in the community.

9. In light of the Plaintiff assertion that the localized patch of ice under the slush in close proximity to an improperly placed drainage pipe was the cause of her fall, not the general slush, the “hills and ridges” doctrine does not bar the Plaintiff from pursuing her Complaint.

10. Restatement of Torts § 344 provides that a possessor of land who holds it open to the public for entry for business purposes is liable for physical harm caused by the accidental or negligent acts of third persons. This Section applies to the acts of independent contractors who are employed or permitted to carry on activities upon the land. In that circumstance, the possessor is required to exercise reasonable care for the protection of the public who enter and to supervise the activities of the contractor.

11. Since Paramount, Promenade East and Merit remain liable as land possessors holding the land open for entry for business purposes and Plaintiff asserts that these parties were negligent in the improper placement of the drainage pipe, liability is not precluded against these Defendants.

12. Indemnification provisions in Paramount, Promenade East and Merit’s service contracts with Blue Lagoon does not act to bar their liability to Plaintiff, as these provisions will become relevant only if a jury determines that Defendants were negligent.

L.C.C.C.P. No. 2015-00507, Opinion by Samuel A. Kline, Judge, November 7, 2016.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION No: 2015-00507

ELIZABETH WILLIAMS, Plaintiff

v.

PARAMOUNT REALTY SERVICES, INC., PROMENADE EAST INVESTORS, LLC, BLUE LAGOON POOLS, LLC, and MERIT SERVICE SOLUTIONS, INC., Defendants

ORDER

And now, to wit, this 7^th day of November, 2016, upon consideration of the Defendants’ Motions for Summary Judgment, the parties’ briefs, oral argument and the record of the case, the Motions for Summary Judgment are DENIED.

BY THE COURT:

SAMUEL A. KLINE, J.

APPEARANCES:

Thad M. Gelsinger, Esq. for the Plaintiff

Thomas E. Brenner, Esq. for the Moving Defendant, Promenade East Investors, LLC and Paramount Realty Services, Inc.

Steven Snyder, Esq. for the Moving Defendant, Merit Service Solutions, Inc.

OPINION, KLINE, J., November 7, 2016

Before the Court are two Motions for Summary Judgment. The first Motion for Summary Judgement is filed by Defendant Promenade East Investors, LLC and Paramount Realty Services, Inc. (hereinafter “Promenade Defendants”). The second Motion for Summary Judgment is filed by Merit Service Solutions, Inc. (hereinafter “Merit”). For the reasons set forth herein, we deny both Motions for Summary Judgment, as specified below.

FACTS AND PROCEDURAL HISTORY

The pertinent facts giving rise to Elizabeth A. Williams’s (hereinafter “Williams”) Complaint in negligence are as follows. The Complaint was filed on March 24, 2015, asserting a claim of negligence against all of the defendants. The negligence claims are based upon an incident that occurred at the Promenade at Lebanon; a shopping center located at 100 North 8^th Avenue, Lebanon, Pennsylvania.

The incident occurred on January 5, 2014 at approximately 3:30 p.m. The weather was a mixture of snow and rain on January 5, 2014. The parking lot at the Promenade at Lebanon, was treated earlier that day by Blue Lagoon Pools, LLC (hereinafter “Blue Lagoon”). (Notes of Testimony from Todd Kline’s Deposition, 42-43). Williams was shopping at the Verizon store located in the shopping center on that day. Upon exiting the Verizon store, Williams stepped from the sidewalk to the parking lot and fell, resulting in injury.

Thereafter, Williams filed her Complaint, sounding in Negligence against the defendants: Promenade East Investors, LLC the owners of the shopping center; Paramount Realty Services, Inc., the property management company that was contracted by Promenade; Merit Service Solutions, Inc., contracted by Paramount to perform snow removal services; and Blue Lagoon Pools, LLC (hereinafter “Blue Lagoon”), subcontracted by Merit to perform the snow removal services for the property.

Promenade Defendants filed their Answer to the Complaint with New Matter on May 15, 2015. Merit filed its Answer to the Complaint with New Matter on June 5, 2015. Finally, Blue Lagoon filed its Answer to the Complaint with New Matter on July 20, 2015.

The first Motion for Summary Judgment was filed by Promenade Defendants on May 5, 2016 with their Brief in Support filed on May 20, 2016. Williams filed her Answer to the first Motion for Summary Judgment on May 23, 2016 with her Brief Contra Motion for Summary Judgment filed on June 9, 2016.

Merit filed the second Motion for Summary Judgment on June 3, 2016 and filed its Brief in Support of Summary Judgment on July 7, 2016. Williams filed her response to the second Motion for Summary Judgment on June 13, 2016 and filed her Brief Contra Motion for Summary Judgment on July 14, 2016. Oral Argument was consolidated for both Motions for Summary Judgment and scheduled for the August 2016 Argument Court Term. 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, the aforementioned rule established by Nanty-Glo will apply, except where “the moving party supports the motion by using admissions of the opposing party or the opposing party’s own witness.” First Philson Bank, N.A. v. Hartford Fire Ins. Co., 727 A.2d 584, 587 (Pa. Super. 1999).

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).

To prevail on a claim of negligence, the plaintiff must show: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach resulted in injury to the plaintiff; and (4) the plaintiff suffered an actual loss or damages. Merlini ex rel. Merlini v. Gallitzin Water Auth., 980 A.2d 502, 506 (Pa. 2009). “If the plaintiff fails to establish one of the essential elements of actionable negligence, the defendant has valid grounds for summary judgment.” Braxton v. Dep’t of Transp., 634 A.2d 1150, 1158 (Pa. Cmwlth. 1993).

Promenade Defendants and Merit posit three arguments in support of their motions for summary judgment. The three arguments are: a duty does not exist because the danger was known and obvious; the “hills and ridges” doctrine bars the imposition of liability; and responsibility for snow removal lies with Blue Lagoon.

Known and Obvious Dangers

The first argument posited by Promenade Defendants and Merit is that there was no duty owed to Williams to warn of known and obvious dangers. The standard of care a land possessor owes to someone that enters their land depends upon “whether the person entering is a trespassor, licensee or invitee.” Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). The Superior Court has stated:

The duty of a possessor of land toward a third party entering the land depends upon whether the entrant is a trespasser, licensee, or invitee. The Restatement (Second) of Torts defines a trespasser as a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise. A licensee is a person who is privileged to enter or remain on the land only by virtue of the possessor’s consent. The status of invitee is defined as follows:

(1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land.

Updyke v. BP Oil Co., 717 A.2d 546, 549 (Pa. Super. 1998), citing Restatement (Second) of Torts § 332 and Palange v. City of Philadelphia, Law Dept., 640 A.2d 1305, 1308 (Pa. Super. 1994).

Possessors of land owe a duty to protect invitees from foreseeable harm. Carrender, 469 A.2d at 123. The duty owed to a business invitee is the highest duty owed to any entrant upon land. Emge v. Hagosky, 712 A.2d 315, 317 (Pa. Super. 1998). “The landowner is under an affirmative duty to protect a business visitor not only against known dangers but also against those which might be discovered with reasonable care.” Id. Furthermore, the possessor is subject to liability 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 invitee, 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.

Carrender. 469 A.2d at 123, citing Restatement (Second) of Torts § 343. “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Moon v. Dauphin County, 129 A.3d 16, 22 (Pa. Cmwlth. 2015), citing Restatement (Second) of Torts § 343A.

For a danger to be “known,” it must “not only be known to exist, but…also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.” Restatement (Second) § 343A comment b. Finally, the question of whether a danger was known or obvious is usually a question of fact for the jury, however the question may be decided by the court where reasonable minds could not differ as to the conclusion. Carrender, 469 A.2d at124, citing Restatement (Second) § 328B comments c and d.

In the matter at hand, Promenade Defendants and Merit argue that the danger was obvious and known to Williams because Williams knew the parking lot was slushy. Due to the fact that the ice was an obvious and known danger to Williams, Promenade Defendants and Merit were not under a duty to take precautions or warn Williams of the danger.

Conversely, Williams argues that the ice was not obvious and known to her when she fell. Williams argues that she was aware that there was slush on the ground but did not see the ice underneath the slush. In support of her argument that there was ice underneath the slush, Williams points to the existence of an improperly placed drainage pipe that caused the accumulation of ice. Furthermore, Williams argues that her case is different from the factual scenario in Carrender, where the Pennsylvania Supreme Court found that the danger stemming from an ice patch was known and obvious to the plaintiff.

In Carrender, the plaintiff slipped and fell on a patch of ice in a parking lot. Carrender, 469 A.2d at 121. There, the plaintiff parked in a parking spot adjacent to a patch of ice, while the rest of the parking lot was free of any ice or snow. Id. The plaintiff even stated she knew there was ice and was aware of the danger the ice created, especially to a person with a prosthetic leg. Id. at 121-22. As such, the Pennsylvania Supreme Court determined that when the plaintiff slipped on the ice and broke her hip, the danger was known and obvious to the plaintiff. Id. at 124. Therefore, the defendants in Carrender could have reasonably expected that the danger would be avoided by patrons. Id.

In the matter at hand, Williams states that she was only aware there was slush present when she was traversing the parking lot. Williams indicates that she was unaware that there was ice underneath the slush until after she had fallen. Furthermore, Williams states that this ice was located in close proximity to a drainage pipe. It cannot be definitively said that knowing and appreciating the risks of danger from slushy conditions is the same as knowing and appreciating the risks of danger from sheets of ice. Accordingly, this Court believes that determining whether the danger was known and obvious to Williams is a question for the jury.

“Hills and Ridges” doctrine

Next, Promenade Defendants and Merit argue that the “hills and ridges” doctrine bars the imposition of liability for Williams’ negligence claim. The “hills and ridges” doctrine, adopted in Pennsylvania, is a legal principle that refines the duty owed by possessors of land for ice and snow covered walks. Wentz v. Pennswood Apartments, 518 A.2d 314, 316 (Pa. Super. 1986). The Superior Court has further stated:

The rule holds that an owner or occupier of land is not liable for general slippery conditions, for to require that one’s walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions in this hemisphere. In order to recover for a fall on an ice or snow covered sidewalk, a plaintiff must prove: (1) that snow and ice had accumulated on the sidewalk 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 condition; [and] (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.

Id. (citations omitted).

However, “proof of hills and ridges is not required when the hazard is not the result of a general slippery condition prevailing in the community, but of a localized patch of ice.” Bacsick v. Barnes, 341 A.2d 157, 160 (Pa. Super. 1975). The “hills and ridges” doctrine may only be applied in cases where the snow and ice complained of are the result of an “entirely natural accumulation,” following a recent snowfall. Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa. Super. 2006).

Promenade Defendants and Merit argue that there was a generally slippery condition in the community on the day that Williams fell. This generally slippery condition was caused by a wintery mix of weather, resulting in slush on the parking lot. Due to the existence of a generally icy/slippery condition that day, Williams is required to prove “hills and ridges” were present to establish liability, which she has not done.

On the other hand, Williams argues that the “hills and ridges” doctrine does not apply. Williams first argues that the “hills and ridges” doctrine does not apply because the conditions were modified by human intervention in that the defendants caused the parking lot to be salted. In addition, Williams argues that ice underneath the slush was caused by a drain pipe.

Upon reviewing the evidence in the light most favorable to Williams, as the non-moving party, in the matter sub judice, we find that liability is not barred by the “hills and ridges” doctrine. The general conditions in the community that day were slushy, as a result of snow, sleet and rain that had fallen. Here, Williams is not alleging the general slippery/icy conditions caused her to fall. Rather, Williams is alleging that a localized patch of ice in close proximity to a drain pipe was the cause of fall.

Viewing the provided deposition testimony in the light most favorable to Williams, it appears that that ice was not a “natural phenomenon” that occurred as a result of the inclement weather conditions, but was a result of artificial conditions. According to the aforementioned case law of Pennsylvania, this factual scenario is outside the scope of the “hills and ridges” doctrine and therefore, liability is not barred.

Additionally, there was deposition testimony that the parking lot was salted earlier in the day. (Notes of Testimony from Todd Kline’s Deposition, 42-43). This testimony creates a factual issue as to whether or not the parking lot was properly salted to avoid the formation of a localized patch of ice. The salting of the parking lot, would take this factual scenario outside the bar to liability under the “hills and ridges” doctrine because there was human intervention. Harvey, 901 A.2d at 526-27. For the above mentioned reasons we find that the “hills and ridges” doctrine does not bar liability.

Responsibility for Snow Removal

Finally, Promenade Defendants and Merit argue that liability does not lie with them because they contracted and sub-contracted snow removal services to Blue Lagoon. Therefore, Promenade Defendants and Merit argue that liability lies with Blue Lagoon as the party who was actually in charge of snow removal. Further, they argue that their indemnification provisions of their contracts prevent liability.

Restatement Second of Torts, Section 344 states the following in regard to liability of possessors of land to invitees for acts of third persons:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

Restatement Second of Torts § 344. Comment (c) to Section 344 states that Section 344 applies to the acts of independent contractors, “who are employed or permitted to carry on activities upon the land. The possessor is required to exercise reasonable care, for the protection of the public who enter, to supervise the activities of the contractor or concessionaire….” See Miller v. Peter J. Schmitt & Co., Inc., 592 A.2d 1324, 1328 (Pa. Super. 1991).

Promenade Defendants and Merit argue that as an employer of an independent contractor, they are not liable for physical harm caused to another as a result of an act or omission of the contractor and/or his servants. Mentzer v. Ognibene, 597 A.2d 604, 610 (Pa. Super. 1991). In Mentzer, the employee of a sub-contractor was injured on the job and the injured employee sought to hold the employer/land owner liable for the negligence of the independent contractor. The Court in Mentzer determined that exceptions to the general rule that an employer of an independent contractor is not liable for physical harm to another by actions of the contractor, did not apply and therefore liability was precluded.

However, the factual scenario in the matter sub judice is distinctively different than that in Mentzer. Here, the Promenade Defendants would remain liable as the land possessor who is holding its land open for entry for business purposes, as stated in Section 344 of the Restatement Second of Torts. Furthermore, Williams hasn’t filed her Complaint against Promenade Defendants solely on the basis of Merit and Blue Lagoon’s negligence in snow removal, but she is also claiming that Promenade Defendants were negligent in permitting the drain pipe to drain onto the parking lot, creating a dangerous accumulation of ice.

Additionally, Merit and Promenade Defendants point to the existence of indemnification provisions in their respective Service Agreements for the contracting of snow removal services. In pointing to these provisions of their respective service agreements, the Defendants argue that the existence of these provisions bar any liability. This is incorrect. The existence of these indemnification provisions will come into play if and when the jury determines that the Defendants were negligent. If that happens, the defendants may seek indemnification through their respective agreements depending on the ultimate jury determination.

For all the aforementioned reasons, the Motions for Summary Judgment are denied.

1) Williams briefly argues that the rule espoused in Nanty-Glo applies here because the Defendants’ Motion for Summary Judgment solely relies on oral testimony. However, Williams fails to recognize that the exception to the Nanty-Glo rule applies to the present situation because the Defendants are relying on oral testimony of the Plaintiff in her deposition. See supra First Philson Bank.