Judges Opinions, — July 8, 2015 11:17 — 0 Comments

Porter vs. Tony’s Mining Company Restaurant, Inc., et al. No. 2012-00148

Civil Action-Law-Motion for Summary Judgment-Negligence-Slip and Fall by Patron-Restaurant After Hours-Side Entrance-Duty of Care-Business Invitee and Trespasser

1. In a motion for summary judgment, the burden is on the moving party to prove that no genuine issue of material fact exists for trial.

 2. The duty owed by a possessor of land to a third party entering the land depends upon whether the entrant is a trespasser, a licensee or an invitee. A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so. A licensee is a person who is privileged to enter or to remain on the property only by virtue of the possessor’s consent. An invitee is either a public invitee or a business visitor.

 3. Generally, the determination of whether an individual is a trespasser, licensee or invitee is a determination of fact for the jury. Only when the evidence is insufficient to support the existence of that issue is it appropriate for the Court to resolve that issue.

 4. Record established that issue of material fact existed as to whether the status of the plaintiff had changed from that of a business invitee to a trespasser when the plaintiff, who was a patron of the Defendant earlier in the evening while the establishment was open and had returned to retrieve a coat and keys left at the establishment after the establishment had closed, had fallen on ice at a side entrance of the establishment and had sustained injuries.

 5. The duty of care owed by a possessor of land to an invitee is the highest duty owed to an entrant upon land. The possessor must protect an invitee not only against known dangers, but also against dangers that might be discovered with reasonable care. The possessor of land is subject to liability for physical harm caused to his or her invitee by a condition on the land if he or she: 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; he or she should expect that the invitee will not discover or realize the danger or will fail to protect against it; and he or she fails to exercise reasonable care to protect the invitee against the danger.

 6. A possessor of land is subject to liability for physical harm caused to a licensee by a condition on the land if: the possessor knows or has reason to know of the condition, should realize that it involves an unreasonable risk of harm to the licensee and should expect that they will not discover or realize the danger; the possessor fails to exercise reasonable care to make the condition safe or to warn the licensee of the condition and the risk involved; and the licensee does not know or have reason to know of the condition and the risk.

 7. Even if record established that the Plaintiff’s status was that of an invitee or licensee, issue of fact found to exist regarding the cause of the Plaintiff’s fall and whether the Defendants had notice of the condition, as record indicates that Defendants and/or employees may have been outside the side entrance of the establishment and had constructive and/or actual notice of the conditions.

 8. The Court denied the Motion for Summary Judgment.

L.C.C.C.P. No. 2012-00148, May 15, 2015.

Stephen M. Greecher, Esquire, for Lynee K. Porter

Wade D. Manley, Esquire, for Tony’s Mining Company Restaurant, Inc., et al.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA CIVIL DIVISION No: 2012-00148

LYNEE K. PORTER

c/o The Cornwall Inn, Plaintiff

v.

TONY’S MINING COMPANY RESTAURANT, INC.

d/b/a TONY’S MINING COMPANY RESTAURANT,

and

PAUL J. KOTKAS and JEAN KOTKAS, Defendants

ORDER

And now, to wit, this 15th day of May, 2015, upon consideration of the Defendants’ Motion for Summary Judgment, the parties’ briefs in support of their positions, and the record of the case, the Motion for Summary Judgment is DENIED.

BY THE COURT:

SAMUEL A. KLINE, J.

APPEARANCES:

Stephen M. Greecher, Esq. for the Plaintiff

Wade D. Manley, Esq. for the Defendants

OPINION, KLINE, J., MAY 15, 2015

Before the Court is the Defendants’ Motion for Summary Judgment. For the reasons set forth herein, we deny the Motion for Summary Judgment, as specified below.

FACTS AND PROCEDURAL HISTORY

On January 25, 2012, Plaintiff (hereinafter “Porter”) filed a Civil Complaint sounding in negligence. The matter is a slip and fall case. The Complaint alleges that Porter was a patron of Tony’s Mining Company Restaurant the night of February 14, 2010. She was accompanied by an individual named Frank Rendazzo. She arrived around 8:15 pm, and she ordered a drink, soup, and salad. Thereafter, she received a call from her daughter, and she had to leave the restaurant. Porter and Mr. Rendazzo departed, but Mr. Rendazzo had left his coat and keys at the restaurant. Porter advised that they would be returning, and Porter was told to come back. They returned around 10:00 pm, went to the front door, and found it was locked. They heard the owners and others on the other side of the front door. They knocked on the front door but no one came. Porter walked from the front door to the kitchen door on the side of the restaurant. As Porter began to walk towards the kitchen door, she slipped and fell on ice. The parking lots on the side of the restaurant along the path she had taken had not been salted or treated with anti-skid material. She suffered injuries as a result.

On February 23, 2012, the Defendants filed an Answer with New Matter. Among defenses raised in the New Matter are that Porter was a trespasser, she assumed the risk, and she was contributorily and/or comparatively negligent. On September 5, 2014, Porter filed a praecipe indicating that depositions were taken of 8 individuals, which included the parties and 5 other witnesses.

On March 19, 2015 the Defendants filed a Motion for Summary Judgment and supporting brief. The matter was listed for the April 2015 Term of Argument Court. The parties waived oral argument, and the matter was decided on the briefs. On April 10, 2015, Porter filed an Answer to the Motion for Summary Judgment and a supporting brief. On April 20, 2015, Porter filed a supplement to her exhibit list. 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).

The Defendants first argue that they are entitled to summary judgment because Porter’s status changed from a business invitee to a trespasser. The Defendants assert that throughout discovery, Porter has maintained that she was initially a business invitee on the property of the Defendants. She left the premises with the business owner’s understanding that she would be returning within 5 to 10 minutes. Instead, Plaintiff returned to the premises approximately 2 hours later, after the business was closed. Porter then attempted to gain access into the business through a rear entrance designated for deliveries. It was at this point that she exceeded her scope as a business invitee and became a trespasser on the Defendants’ premises. As such, she cannot establish the necessary elements of a cause of action against the Defendants for breach of a duty of care. (See brief, p. 6). Porter responds by arguing her status while she was on the premises at the time of her fall is an issue of fact for resolution by a jury. Further, there are facts that would permit a jury to find that Porter was still an invitee. (See brief, p. 4). Porter also asserts that even if she is not an invitee, she can be found to be a licensee. (See brief, p. 10).

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).

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 and Palange v. City of Philadelphia, Law Dept., 640 A.2d 1305, 1308 (Pa. Super. 1994).

Generally, the determination of whether an individual is an invitee, licensee, or trespasser is one of fact for the jury. See Slobodzian v. Beighley, 401 Pa. 520, 164 A.2d 923 (1960); Rivera v. Philadelphia Theological Seminary, 326 Pa.Super. 509, 474 A.2d 605 (1984); Restatement (Second) of Torts § 332 cmt. l (1965); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 37, at 235-38 (5th ed. 1984). Where the evidence is insufficient to support an issue, however, it may be appropriate for the court to remove that issue from the jury. Prosser and Keeton on the Law of Torts, supra.

Palange, 640 A.2d at 1307. Furthermore, “[i]t has long been the law of this Commonwealth that the duty of a possessor of land towards a third person entering the land has been measured by the status of the entrant at the time of the accident.” Id. at 1308.

The Court cannot grant summary judgment because there simply are far too many questions of fact as to Porter’s status on the premises at the time of the injury. For example, the Defendants’ argument completely ignores certain deposition testimony where Porter testified that she was told to come back, and “…we were going to have dessert…” (Porter deposition, p. 48-49). There is a discrepancy as to how long she intended to be away from the restaurant. Mr. Kotkas stated that their intention was to come back in 5-10 minutes, while Porter denies this. (Mr. Kotkas deposition, p. 47, Porter deposition, p. 48-49). There was testimony that Mrs. Kotkas was told “she had no business being back in that area.” (Mrs. Kotkas, p. 44). All of these are factors that are relevant in determining her status upon her return. There is also deposition testimony indicating that the kitchen door is not a normal place for customers to come; it is just for deliveries and for employees to enter. However, “I’m sure there were occasions when the front door was still locked that people would come back there and knock on the door if they saw cars in the parking lot, but it is not the normal entrance for anyone other than employees or delivery people.” (Kling deposition, p. 10). There was testimony that some customers, including Porter, have used the kitchen door to purchase gift certificates.

More importantly, even assuming that the Defendants are correct that Porter became a trespasser at the time of the injury, that determination generally must be made by a jury. The Court will not make that determination at this time.

The Defendants next argue that they are entitled to summary judgment because, assuming that Porter was an invitee or a licensee, Porter has failed to identify both what caused her fall and that Defendants had notice of the condition.

The duty that a possessor of land owes to an invitee 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. The duty a possessor of land owes to invitees is 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

(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.

Gillingham v. Consol Energy, Inc., 51 A.3d 841, 850 (Pa. Super. 2012) (citations omitted). A landowner is subjected to liability for physical harm caused to licensees by a condition on the land if:

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved.

Cresswell v. End, 831 A.2d 673, 677 (Pa. Super. 2003), citing Restatement (Second) of Torts, § 342. “The duty owed to trespassers by a property owner is only to refrain from willful or wanton misconduct.” Graham v. Sky Haven Coal, Inc., 563 A.2d 891, 896 (Pa. Super. 1989).

Defendants cite to Porter’s deposition where they claim she cannot identify what she slipped on. She does not know whether she slipped on ice, snow, or even grass. Defendants state:

Given that this incident took place in the winter after a recent snowfall, it is plausible that any patch of grass on any piece of property in the area that evening could be deemed ‘slippery.’ Moreover, because Plaintiff has not identified what the exact cause of her alleged fall was, Plaintiff has also failed in her Complaint to aver how Defendants were responsible for allowing the allegedly dangerous condition to exist on the premises.

(See brief, p. 11).

Porter counters by arguing that there is evidence in the record which suggests the Defendants had or could have had constructive or active notice of the conditions. This evidence includes: employees went outside the back door to smoke that night (Mrs. Kotkas deposition, p. 39-40; Beiler deposition, p. 28, Stewart deposition, p. 12); the ground was somewhat wet (Beiler deposition, p. 25); snow is plowed against the side of the restaurant (Beiler deposition, p. 20-21); a rainspout was present near where Porter fell and the pavement was wet (Hummel deposition, p. 33); and it was very cold that night (Mrs. Kotkas deposition, p. 11).

Porter also claims that she identified what caused the fall. Officer Troxell testified in a deposition that there was ice where Porter was found. (Troxell deposition, p. 16). When asked if he recalled anything that Ms. Porter said to him at the scene, he testified, “Again, referencing my report, she had told me that she had slipped on the ice, and in her words, possibly broke her knee cap.” (Troxell deposition, N.T. 17).

Once again, there are far too many questions of fact. Porter has identified deposition testimony which clearly creates genuine issues of material fact as to whether the Defendants had notice of the conditions at the time of the accident and as to what caused the fall. The Defendants have misconstrued summary judgment because they merely cite to limited portions of depositions and use those portions to draw their own conclusions to attempt to persuade the Court that there are no issues of material fact. The Defendants’ arguments fail to recognize other portions of the depositions that undoubtedly create genuine issues of material fact. 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.

 

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