Jay Hoffman, v. Lebanon Valley College

Jay Hoffman, v. Lebanon Valley College

Civil Action-Law-Negligence-Business Invitee-Fall Through Window Grate-Pest Control Services-Motion for Summary Judgment-Genuine Issue of Material Fact-Known Dangers-Dangers Discovered with Reasonable Care-Expert Testimony-Constructive Notice-Dangerous Property Condition

Jay Hoffman (“Plaintiff”), who was working for Ehrlich Pest Control as a senior technician performing pest control services at Lebanon Valley College (“Defendant”), lodged a Complaint against Defendant alleging negligence for failing to maintain its real property in a safe and proper condition when he injured his arm and shoulder after falling through a window grate while applying pest control materials at Defendant’s property.  Plaintiff alleges that while shaking ant bait into window wells, the grates upon which he was walking were not secured and slipped off the concrete ledge where he was standing, causing him to fall.  Defendant filed a Motion for Summary Judgment, asserting that Plaintiff failed to produce evidence that Defendant had actual or constructive notice that Plaintiff walked on the grates while performing his job duties or the grate constituted a dangerous condition. 

1.  A motion for summary judgment may be granted only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. 

2.  The trial court must resolve any doubts as to the existence of a genuine issue of material fact against the moving party and may grant summary judgment only where the right to such a judgment is clear and free from doubt. 

3.  In order to establish a viable cause of action in Negligence, the plaintiff must demonstrate: (1)  a duty or obligation recognized by law that requires an actor to confirm his or her actions to a standard of conduct for the protection of others against unreasonable risks; (2) failure on the part of the defendant to conform to that standard of conduct; (3) a reasonably close causal connection between the breach of duty and the injury sustained; and (4) actual loss or damages resulting from the breach.

4.  The duty of care owed to a business invitee or visitor is the highest duty owed to any entrant upon land.

5.  The landowner must protect a business invitee not only against known dangers, but also against dangers that might be discovered with reasonable care.

6.  A property owner is liable for dangerous conditions that would have been discovered if the owner had exercised reasonable care in inspection.

7.  The question of whether a property owner had constructive notice of a dangerous condition and should have known of a defect is a question of fact for the jury. 

8.  Expert testimony becomes necessary when the subject matter of the inquiry is one involving special skills and training not common to the ordinary lay person. 

9.  Since no special skills or training are necessary for an assessment of whether the condition of the concrete was deteriorated or the grate was not in proper position, expert testimony regarding the condition of the concrete or placement of the grate is necessary for Plaintiff to establish his claim. 

10.  Viewing the record in the light most favorable to Plaintiff, sufficient support exists for a jury to find that the concrete was deteriorated or out of position where Defendant’s director of grounds services confirmed that no maintenance had been performed on the window wells since at least 2019, no protocol existed for inspection of the area and photographs show that the concrete was not in pristine condition at the time of the fall.

L.C.C.C.P. No. 2022-00132, Opinion by Donna Long Brightbill, Judge, September 5, 2024.

                        IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                            PENNSYLVANIA

                                                            CIVIL DIVISION

JAY HOFFMAN,                                           :           NO. 2022-00132

                        Plaintiff                                   :

                                                                        :

            v.                                                         :

                                                                        :

LEBANON VALLEY COLLEGE,               :

                        Defendant                               :

                                                            ORDER OF COURT

            AND NOW, this 5th day of September, 2024, upon consideration of Defendant’s Motion for Summary Judgment, Plaintiff’s response thereto, the Briefs submitted by the parties, and after Oral Argument conducted on June 7, 2024, it is hereby Ordered that said Motion is DENIED.

                                                                        BY THE COURT:

                                                                        ___________________________, J.

                                                                        DONNA LONG BRIGHTBILL

JCT/jah

Cc:  Brittany E. Bakshi, Esquire/Marshall Dennehey, PC/100 Corporate Center

          Drive, Suite 201/Camp Hill, PA  17011

            Nichole L. Eisenhart, Esquire/Barley Snyder

           Court Administration

           Lisa Halsell/Judges Chambers

           Judith Huber, Esquire/Law Clerk

                        IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                            PENNSYLVANIA

                                                            CIVIL DIVISION

JAY HOFFMAN,                                           :           NO. 2022-00132

                        Plaintiff                                   :

                                                                        :

            v.                                                         :

                                                                        :

LEBANON VALLEY COLLEGE,               :

                        Defendant                               :

APPEARANCES:

BRITTANY BAKSHI, ESQUIRE              FOR JAY HOFFMAN

MARSHALL DENNEHEY, PC

NICHOLE L. EISENHART, ESQUIRE    FOR LEBANON VALLEY COLLEGE

BARLEY SNDYER

OPINION, LONG BRIGHTBILL, J., SEPTEMBER 5, 2024.

            Plaintiff Jay Hoffman (“Hoffman”) alleges that he sustained serious injuries to his arm and shoulder when he fell through a window grate on February 7, 2020 while he was applying pest control materials around the perimeter of a building at Lebanon Valley College (“LVC”).  Hoffman avers that LVC was negligent for failing to maintain its real property in a safe and proper condition.  LVC has filed a Motion for Summary Judgment arguing that it is entitled to judgment as a matter of law. Hoffman counters that there are disputed issues of material fact which remain for resolution by a jury.   We conducted Oral Argument on the Motion on June 7, 2024 and the matter is now before us for disposition.

            The pleadings and discovery reveal that at the time of the incident, Hoffman was employed by Ehrlich Pest Control as a senior technician.  He performed pest control services at LVC on a weekly basis and had been doing so for approximately nine to ten years.  In performing his duties, he was required to apply bait to the outside perimeter of buildings.  On February 7, 2020, he was shaking ant bait into window wells along the south side of Clyde A. Lynch Memorial Hall.  This required him to walk on the grates that covered the window wells to ensure that the bait fell into leaves that accumulated inside the window well.  The grates were not secured to the concrete that supported them.  When Hoffman stepped onto one of the grates, it slipped off the concrete ledge on which it was situated and Hoffman fell, sustaining the injuries to his arm and shoulder. 

Hoffman alleges that either the grate became dislodged due to the deteriorated condition of the concrete or the grate had been moved from its proper position.  Hoffman explained that he was focused on the ground where pests would have been present and did not detect anything abnormal about the grate before his fall.  He had followed this same procedure to apply bait in this area prior to this incident and had never experienced a problem with the grate.

            During his deposition, Hoffman was questioned regarding the condition of the concrete and the position of the grate:

Q.  Do you have any knowledge that supports this statement that the concrete deteriorated around the grate?

A.  Other than the pictures, no.

Q.  Do you think that those pictures show deteriorated concrete?

A.  Well, it’s not new.

Q.  But is it deteriorated?

A.  I guess that definition would be difficult for me to actually say.

Q.  Okay.  So is it fair to say that you don’t know if the concrete was deteriorated?

A.  Correct

Q.  Okay.  The next part of it says and/or someone had dislodged the grate.  As we sit here today do you have any knowledge of anyone dislodging the grate?

A.  No.

Q.  Okay.  And I believe, just to confirm when we talked about it before, you don’t recall seeing anything wrong or askew with the grate prior (sic) stepping on it?

A.  Correct.

Q.  Okay.  Question 13 says please describe everything which you did in an attempt to avoid the alleged occurrence.  The answer is written, I was performing my treatment and was unable to determine or observe that the grate was unsupported.  How do you know that the grate was unsupported?

A.  I was unable to observe.  That means I had no way of knowing that it was unsupported.

Q.  But how do you know it was unsupported?

A.  But the way the – the way you said the question it sounds like I’m saying I had no way of knowing that it was unsupported.

Q.  Okay.  But do you actually know that it was unsupported?

A.  No, I do not.

(Answer to Motion for Summary Judgment, Exhibit “A” at pp.  92-93)  Hoffman explained that the incident happened so quickly that he was not able to  make any observations or determine how it occurred.

            In his deposition, Michael Mumper, LVC’s Director of Facilities Services, testified that LVC had no protocol for inspections of the window grates as they are not located on a paved walkway.  He confirmed that no maintenance had been performed on the grates from 2019 to the date of the incident and no grates had been replaced within the previous ten years.  After the incident, LVC hired Graves Construction to install aluminum angle irons to bolt down the location where the grates intersected the concrete on the window well.  (Answer to Motion for Summary Judgment, Exhibit “B” at pp. 15-21)

Several photographs of the window grate area were produced and discussed during the depositions of Hoffman and Mumper.  (Answer to Motion for Summary Judgment, Exhibits “A” and “B”.)   These were taken both before and after Graves Construction bolted the grate down.

A motion for summary judgment may be granted only when there are no

genuine issues of material fact and the moving party is entitled to judgment as a matter of law.  Sellers v. Township of Abington, 106 A.3d 679 (Pa. 2014).  It is the moving party’s burden to demonstrate the absence of any issue of material fact, and the trial court must evaluate all the facts and make reasonable inferences in a light most favorable to the non-moving party.  Khalil v. Williams, 278 A.3d 859, 871 (Pa. 2022).  The trial court must also resolve any doubts as to the existence of a genuine issue of material fact against the moving party and may grant summary judgment only where the right to such a judgment is clear and free from doubt.  Id.  If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.  Patel v. Kandola Real Estate, L.P., 271 A.3d 421, 426 (Pa. Super. 2021).  The moving party has the burden to prove the absence of genuine issues of fact, and the court must resolve any doubts regarding the existence of a genuine issue of material fact against the moving party.  Bourgeois v. Snow Time, Inc., 242 A.3d 637 (Pa. 2020).

The non-moving party must produce evidence, beyond mere pleadings, on issues on which the non-moving party has the burden of proof to withstand summary judgment.  Id.

            In order to establish a viable cause of action for negligence, the plaintiff must demonstrate the following four elements:  (1) a duty or obligation recognized by the law that requires an actor to conform his actions to a standard of conduct for the protection of others against unreasonable risks; (2) failure on the part of the defendant to conform to that standard of conduct, i.e., a breach of duty; (3) a reasonably close causal connection between the breach of duty and the injury sustained; and (4) actual loss or damages that result from the breach. Gutteridge v. A.P. Green Services, Inc, 804 A.2d 643, 654 (Pa. Super. 2002).

LVC argues that Hoffman has failed to produce any evidence that LVC had actual or constructive notice that Hoffman walked on the grates while applying  bait to the outside of buildings or that the window grate was in a dangerous condition.   LVC contends that because Hoffman has not identified any building code that requires that window wells must be covered or that any coverings must be able to bear weight, there was no reason for LVC to know of the dangerous condition of the grates or for it to inspect the grates to ensure that they could support the weight of a person.  LVC further argues that Hoffman’s theory of liability requires expert testimony as to the deficiency of the window grate.  Since Hoffman has failed to produce an expert report, LVC contends that he will be unable to show that the grate was in a dangerous condition.  LVC also argues that Hoffman’s testimony contradicts his contention that the grate had been dislodged and was not replaced properly.

At common law, “[t]he standard of care a possessor of land owes to one who enters upon the land depends upon whether the latter is a trespasser, licensee, or invitee.” Gutteridge, 804 A.2d at 655.   

Pennsylvania law defines “invitee” 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.

Id. at 655-56, quoting Updyke v. BP Oil Co., 717 A.2d 546, 549 (Pa. Super. 1998). LVC concedes that Hoffman was an invitee at the time of this incident.

            The duty of care owed to a business invitee (or business visitor) is the highest duty owed to any entrant upon land. The landowner must protect an invitee not only against known dangers, but also against those which might be discovered with reasonable care. Shellenberger v. Kreider Farms, 288 A.3d 898 (Pa. Super. 2023).  Case law sets forth the duty that a possessor of land owes to business invitees as follows:

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

• 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

• 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.

Id. at 908.   

            Because a possessor is under an affirmative duty to protect an invitee not only against dangers of which the possessor knows but also against those that he might discover with reasonable care, a property owner is liable for dangerous conditions that would have been discovered if the owner had exercised reasonable care in inspection.  3 Summ. Pa. Jur. 2d Torts §39:12 (2d ed.), citing Vitali v. Bankers Securities Corp., 157 A.2d 633 (Pa. 1960).  However, a possessor is not liable for a latent defect of which it was ignorant or that could not have been discovered in the exercise of reasonable care and diligence.  Id., citing Greco v. 7-Up Bottling Co. of Pittsburgh, 165 A.2d 5 (Pa. 1960); Jemison v. Pfeifer, 152 A.2d 697 (Pa. 1959).  The question whether a landowner had constructive notice of a dangerous condition and thus should have known of the defect, i.e., the defect was apparent upon reasonable inspection, is a question of fact. Com., Dept. of Transportation v. Patton, 686 A.2d 1302 (Pa. 1997).  As such, it is a question for the jury, and may be decided by the court only when reasonable minds could not differ as to the conclusion. Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 124 (1983). If there is any dispute created by the evidence, the court is not permitted to decide the issue. 

            Expert testimony becomes necessary when the subject matter of the inquiry is one involving special skills and training not common to the ordinary lay person.  Brandon v. Ryder Truck Rental, Inc., 34 A.3d 104 (Pa. Super. 2011).  However, expert testimony is not needed in every general negligence case.  Id. 

Without proving the dangerous condition of the concrete, Hoffman cannot prove that LVC should have known of the problem through a reasonable inspection.  The bases for Hoffman’s claim against LVC is that the concrete was in a deteriorated condition such that it did not support the grate when Hoffman stepped on it to apply the bait or that the grate was not in its proper position as it slipped immediately when he stepped on it.  We do not believe that an expert opinion regarding the condition of the concrete and/or placement of the grate is necessary for Hoffman to prove negligence on the part of LVC as no special skills or training are necessary for such an assessment by the jury.

Viewing the record in the light most favorable to Hoffman, as the non-moving party, we believe that there is sufficient support for Hoffman’s propositions by which a jury could find that the concrete was either deteriorated or was out of its position at the time of this incident.  Mumper confirmed that no maintenance had been performed on the window wells since at least 2019 and that LVC had no protocol for inspection of the area where Hoffman fell.  Hoffman has submitted photographs of the window well which indicate that the concrete was not in pristine condition at the time of his fall.  It is within the sole province of the jury to view these photographs, in conjunction with Hoffman’s testimony, to determine whether the condition of the concrete was deteriorated to the point to which it would not hold the grate in position when Hoffman stepped on it.  In addition, Hoffman claims that the grate slipped as soon as he took one step onto it.  He confirmed that that this had never occurred before during his application of bait in that location.  This testimony supports Hoffman’s claim that the grate was out of its normal place.  In the event that the jury would find that the evidence indicates either of these scenarios, the jury must then determine whether LVC had a duty to inspect the window wells and, if so, whether the dangerous condition could have been detected through a reasonable inspection.^[1]  Since Hoffman has produced evidence by which a jury could potentially render a verdict in his favor on these issues, we will deny LVC’s Motion for Summary Judgment.

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[1] We note that Hoffman brings up the fact of LVC having the concrete bolted down after this incident.  Pa.R.E. 407 provides:

 Rule 407. Subsequent Remedial Measures

When measures are taken by a party that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible against that party to prove:

• negligence;

• culpable conduct;

• a defect in a product or its design; or

• a need for a warning or instruction.

But the court may admit this evidence for another purpose such as impeachment or–if disputed–proving ownership, control, or the feasibility of precautionary measures.

Pa.R.E. 407.  Evidence of subsequent remedial measures is admissible to prove feasibility, but only when feasibility of precautionary measures has been controverted. 1 West’s Pa. Prac., Evidence §407-2 (4^th ed.), citing  Duchess v. Langston Corp., 769 A.2d 1131 (Pa. 2001).  This does not appear to be an issue in this matter.