Opinion
J-S76032-16 No. 1633 EDA 2016
10-21-2016
ANTOINETTE BROWN Appellant v. KINSER B604, LLC Appellee v. ALLEN VERNAL AND EDWANDA SHEPHERD Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered April 27, 2016
In the Court of Common Pleas of Northampton County
Civil Division at No(s): No. CV-2014-9136 BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Antoinette Brown ("Ms. Brown"), appeals from the April 27, 2016, order granting summary judgment in favor of Appellees Allen Vernal and Edwanda Shepherd ("Mr. Vernal" and "Ms. Shepherd," respectively). After a careful review, we affirm.
As the trial court noted, "Vernal Allen" has been misidentified in pleadings, as well as the caption, as "Allen Vernal." For the sake of consistency, we shall refer to this Appellee as "Allen Vernal."
In its April 27, 2016, order, the trial court also granted summary judgment in favor of Kinser B604, LLC ("Kinser"). However, in her notice of appeal, Ms. Brown indicated she was appealing the the entry of summary judgment in favor of Mr. Vernal and Ms. Shepherd only. Moreover, Ms. Brown has developed no argument on appeal pertaining to Kinser. Consequently, we affirm the entry of summary judgment in favor of Kinser on this basis.
The relevant facts and procedural history are as follows: On September 25, 2014, Ms. Brown filed a complaint sounding in negligence against Kinser, the owner of a single family row home located at 604 Carlton Street, in Bethlehem, PA. As the basis for her claims, Ms. Brown alleged that, on February 17, 2014, she was at the property as an invitee for a scheduled hair appointment and could access the salon only by climbing the stairs leading from the sidewalk of the property to the front door of the property. Ms. Brown alleged that at some time prior to her appointment there had been precipitation in the form of snow, rain, or freezing rain; however, the precipitation had stopped prior to her arrival at the property. She averred there had been no snow or ice removal performed on the property and, as a result thereof, the sidewalk leading to the property, as well as the steps leading to the front door, were covered in snow and ice. Ms. Brown indicated that she slipped and fell off the steps, thereby receiving substantial injuries, including damage to her legs necessitating surgery and resulting in permanent disfigurement and loss of mobility. Accordingly, she sought damages for her pain and suffering, as well as lost wages.
Kinser filed an answer with new matter, as well as a joinder complaint to add as defendants Mr. Vernal and Ms. Shepherd, who were the tenants of the property. Therein, Kinser presented claims of indemnification and/or contribution, and additionally averred Mr. Vernal and Ms. Shepherd were solely liable to Ms. Brown. Ms. Brown filed an answer to Kinser's new matter, and Mr. Vernal and Ms. Shepherd filed an answer to Kinser's joinder complaint.
With regard to the right to join additional defendants, Pa.R.C.P. 2252 provides:
[A]ny party may join as an additional defendant any person not a party to the action who may be [] solely liable on the underlying cause of action against the joining party, or. . .liable to or with the joining party on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the underlying cause of action against the joining party is based.Pa.R.C.P. 2252.
On December 31, 2015, Ms. Brown filed a motion for partial summary judgment and a supporting brief. Ms. Brown averred there had been a blizzard for three days, which stopped on or before February 16, 2014, and no snow or ice removal had been performed prior to her arrival at the property on February 17, 2014. Accordingly, more than twenty-four hours had elapsed since the end of the blizzard and the day Ms. Brown slipped and fell. She indicated that, after having her hair done and upon leaving the property, she slipped and fell as she attempted to descend the exterior steps, which were covered with snow and ice. Ms. Brown noted that Kinser owned the property, and Mr. Vernal had leased the property; however, the lease expired on December 31, 2013. Ms. Brown indicated that, after 2012, no agent of Kinser had removed ice or snow from the subject property.
In developing her motion, Ms. Brown relied upon Article 721.03 of the City of Bethlehem's ordinances and Restatement (Second) of Torts §§ 355-362, governing the liability of lessors to persons who enter upon the land. She reasoned that Kinser had responsibilities for snow and ice removal under the former rendering it liable for her injuries as a landlord maintaining control over a portion of the premises under the latter. She further reasoned that, in the absence of a written lease between Kinser and the occupants of the property apportioning responsibility for ice and snow removal, Kinser was responsible for the same and liable to Ms. Brown. Ms. Brown's Motion for Partial Summary Judgment, filed 12/31/15.
Article 721.03 provides, in relevant part, that "[n]o person owning, controlling or occupying any lot. . .shall allow or permit any. . . snow [or] ice. . .to remain upon the pavements, sidewalks, footways or rights-of-way in front of or adjoining such lot for a period longer than twenty-four hours after the rain, snow, [or sleet]." Id. Exhibit D. Moreover, Article 721.03 indicates that one who neglects to remove such snow or ice within the specified time is guilty of maintaining a nuisance. Id.
The motion is not paginated.
Furthermore, in developing her motion, Ms. Brown relied upon Section 107.7 of the International Property Maintenance Code, which was adopted by the City of Bethlehem. Ms. Brown noted that Kinser had no agent living within 20 miles of Bethlehem, and thus, she suggested Kinser was in violation of Section 107.7 of the Code.
Section 107.7 provides "no certificate of occupancy shall be issued for a rental dwelling. . .unless there is provided to the inspection bureau the name and address of an agent residing within a 20 mile radius of the City of Bethlehem[.]" Ms. Brown's Motion for Partial Summary Judgment, filed 12/31/15.
As the trial court aptly noted, in the conclusion of her motion for partial summary judgment, Ms. Brown summarily sought a finding of liability as to Kinser, Mr. Vernal, and Ms. Shepherd. However, consistent with her complaint, Ms. Brown's arguments in her motion are directed to Kinser solely.
Kinser, as well as Mr. Vernal and Ms. Shepherd, filed responses to Ms. Brown's partial motion for summary judgment. Moreover, on February 4, 2016, Mr. Vernal and Ms. Shepherd filed a joint motion for summary judgment. Therein, pointing to Ms. Brown's admissions made during her deposition testimony, they sought summary judgment on the basis of the assumption of risk doctrine. Specifically, Mr. Vernal and Ms. Shepherd indicated that Ms. Brown admitted the following uncontradicted facts during her deposition:
On the way to [the subject property Ms. Brown] and her daughter noticed lots of snow on the ground that was frozen. For many parts of the walk they had to walk in the street because sidewalks were still full of snow and ice; and they had to climb over piles of snow to get from [the] street to the sidewalk.
When they got to [the subject property], there was a small pathway to the front steps with ice and snow on the steps. It
was light out and [Ms.] Brown could see the snow and ice on the steps to [the subject property]. It was slippery. There was a banister on the right [s]ide of the steps and [Ms.] Brown sent her daughter up the steps ahead of her to make sure that she wouldn't fall. They held onto the banister as they went up on the right side of the steps, which was a little clearer.Mr. Vernal and Ms. Shepherd's Motion for Summary Judgment, filed 2/4/16 (citations to Ms. Brown's deposition omitted).
After a while, [Ms.] Brown left [the subject property] to go to a store to get some supplies for her hair. She left her daughter [at the property] to play[.] It was still light out and she went out the same door[,] stayed on the side of the steps[,] and held onto the banister with her left-hand going down. The steps were still slippery. When she returned she came back up the steps again holding onto the banister and staying to the right because the steps were slippery.
[Ms.] Brown never told [Ms. Shepherd] that the steps were icy or slippery. She never asked her to put anything on the steps, or clear them to help. She never asked [Ms. Shepherd] if there was another exit.
The motion is not paginated.
Further, they indicated Ms. Brown admitted that, after her appointment, she called a cab to retrieve her and her daughter, and the cab driver told Ms. Brown to leave her bags/purse by the door and he would carry them. Id. Ms. Brown admitted during the deposition that she was aware that it was icy and she had to be careful as she descended the stairs. Id. However, Ms. Brown chose to carry her purse and another bag, thus descending the stairs without holding onto the railing resulting in her slipping and falling. Id. Accordingly, Mr. Vernal and Ms. Shepherd claimed Ms. Brown was barred from recovery under the assumption of risk doctrine.
On February 16, 2016, Kinser filed a motion for summary judgment averring it was entitled to judgment as it "is undisputed that [Kinser] was under no duty to act for the protection of [Ms. Brown] at the time of [her] alleged slip-and-fall at the single family rental property occupied by [Mr. Vernal and Ms. Shepherd]." Kinser's Motion for Summary Judgment, filed 2/16/16. To this end, Kinser argued it was a landlord out of possession who had no control over any portion of the premises.
The motion is not paginated.
In support thereof, Kinser averred it was undisputed that, although the initial lease between Kinser and Mr. Vernal expired on December 31, 2012, the parties had executed a written lease extension, thus extending the term of the written lease to December 31, 2013. Moreover, it was undisputed that, prior to the expiration of the extension, the parties verbally agreed to extend the lease on a month-to-month basis indefinitely, and as of the filing of the motion, Mr. Vernal and Ms. Shepherd remained as tenants. Kinser noted the parties' written lease agreements provided that the tenant was to "keep the property clean and safe," and Kinser retained no control or possession over any portion of the premises, including the steps at issue.
Alternatively, echoing in large part the same portions of Ms. Brown's uncontradicted deposition testimony as set forth in Mr. Vernal and Ms. Shepherd's summary judgment motion, Kinser argued it was relieved of any duty to protect Ms. Brown under the assumption of risk doctrine.
Ms. Brown filed an answer to Mr. Vernal and Ms. Shepherd's joint motion for summary judgment. Therein, she admitted all factual allegations contained in Mr. Vernal and Ms. Shepherd's motion for summary judgment. Her only denial was to the averment "[Ms. Brown] is barred from recovery by the doctrine of assumption of the risk[,]" since such averment constituted a conclusion of law to which no response was needed. Ms. Brown's Answer, filed 3/7/16. Additionally, in her brief in opposition to Mr. Vernal and Ms. Shepherd's motion for summary, Ms. Brown confined her argument to the issue of duty, i.e., which defendant (the property owner or the tenants) had the duty to ensure the steps were free from snow and ice. She averred that Kinser (the property owner) owed her the duty since there was no written lease in place at the time of the incident.
The answer is not paginated.
She also argued that the trial court should dismiss Mr. Vernal and Ms. Shepherd's joint motion for summary judgment on the basis it was untimely filed. The trial court explained in its order/opinion that their motion was not untimely filed. See Trial Court Order/Opinion, filed 4/27/16, at 10.
Ms. Brown also filed an answer to Kinser's motion for summary judgment. Therein, she admitted all of the factual allegations contained in Kinser's motion as to the circumstances of her fall.
By order and opinion entered on April 27, 2016, the trial court denied Ms. Brown's motion for partial summary judgment, but granted Kinser's, as well as Mr. Vernal and Ms. Shepherd's, motions for summary judgment. Ms. Brown filed a timely notice of appeal specifically indicating that she was appealing from the order entered on April 27, 2016, "with respect[] to Allen Vernal and [Ed]wanda Shepherd, only." The trial court directed Ms. Brown to file a Pa.R.A.P. 1925(b) statement, Ms. Brown timely complied, and the trial court filed a brief Pa.R.A.P. 1925(a) opinion relying on its previous order/opinion.
With regard to the trial court's entry of summary judgment in favor of Mr. Vernal and Ms. Shepherd, Ms. Brown presents the following issue on appeal:
Did the [trial court] err in not giving proper weight to the fact that on all previous occasions when [Ms. Brown] entered or exited the home it was daylight and on the occasion when [Ms. Brown] left the home and slipped and fell, it was nighttime and there was no porch light turned on which made conditions entirely different from any previous time [Ms. Brown] entered or exited the [subject premises]?Ms. Browns' Brief at 4.
Ms. Brown alleges that the trial court erred in holding, as a matter of law, that she assumed the risk of her injury, thus relieving Mr. Vernal and Ms. Shepherd of a duty of care. In this regard, she avers that there are genuine issues of material fact. Specifically, she avers that she "testified that there was no snow and ice on the stairs during the day and that on all other occasions prior to her leaving the home that evening when she entered or existed the house it was daylight out." Ms. Brown's Brief at 11. She notes that, had she slipped on the stairs during the daylight hours, she would not contest that she is barred from recovery under the assumption of risk doctrine. Id. at 12. However, Ms. Brown avers that she is not barred under the assumption of risk doctrine since:
[S]he came to the steps for the first time in the dark with no porch light lit when she exited the premises and was injured. This was the first time she had come to this risk and she was not previously aware of it nor was there any other option for egress.Id. at 13.
We note the following relevant legal precepts.
[S]ummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment where the right to such judgment is clear and free from all doubt.
Truax v. Roulhac , 126 A.3d 991, 996 (Pa.Super. 2015) (en banc)(citations omitted).Malanchuk v. Sivchuk , ___ A.3d ___, 2016 WL 4943061, *4 (Pa.Super. filed Sept. 15, 2016) (citations, quotation marks, and quotations omitted).
An order granting summary judgment will be reversed if the trial court committed an error of law or abused its discretion. Id. The decision relating to "whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals." Id. at 997 (citation omitted). It is settled that, "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." Id. (citation omitted).
Moreover, under the rule announced in Borough of Nanty-Glo v. American Surety Co. of New York , 309 Pa. 236, 163 A. 523, 524 (1932), summary judgment is prohibited "where the moving party relies exclusively on oral testimony, either through testimonial affidavits or deposition testimony, to establish the absence of a genuine issue of material fact except where the moving party supports the motion by using admissions of the opposing party or the opposing party's own witness." Lineberger v. Wyeth , 894 A.2d 141, 149 (Pa.Super. 2006) (quotation and quotation marks omitted) (emphasis in original). Additionally, it is well settled that arguments not presented to the trial court in opposition to summary judgment cannot be raised for the first time on appeal. McHugh v. Proctor v. Gamble , 875 A.2d 1148, 1151 (Pa.Super. 2005) (citations omitted).
Here, we initially note that, in their motion for summary judgment, Mr. Vernal and Ms. Shepherd argued that Ms. Brown was barred from recovery under the doctrine of assumption of the risk. In her answer and supporting brief in opposition to Mr. Vernal and Ms. Shepherd's joint motion for summary judgment, Ms. Brown admitted the facts as alleged by Mr. Vernal and Ms. Shepherd and did not address their assumption of risk argument. As the trial court notes in in its order/opinion, "[i]n her brief contra the instant motion, [Ms. Brown] wholly fails to address [Mr. Vernal and Ms. Shepherd's] reliance on the assumption of the risk doctrine, electing instead to further her theory that. . .Kinser is liable for her injuries." Trial Court Order/Opinion, filed 4/27/16, at 11.
In the case sub judice, Ms. Brown has alleged, for the first time on appeal, that there is a genuine issue of material fact, i.e., that there was no snow or ice on the stairs during the daylight hours, and thus, Ms. Brown was not aware of the dangerous conditions when she slipped and fell in attempting to descend the stairs during the nighttime hours. As she did not raise this argument in opposition to Mr. Vernal and Ms. Shepherd's motion for summary judgment, it is proper to affirm the trial court's entry of summary judgment in favor of Mr. Vernal and Ms. Shepherd on this basis. See McHugh , supra.
Additionally, we agree with the trial court that there is no genuine issue of material fact, and Mr. Vernal and Ms. Shepherd are entitled to judgment as a matter of law under the assumption of risk doctrine. In this regard, we rely on the trial court's well-reasoned order/opinion. See Trial Court Order/Opinion, filed 4/27/16, at 11-14. Further, we note that the basis of Ms. Brown's appellate argument is that she testified during her deposition that there was no snow or ice on the stairs during the daylight hours, and thus, the danger was not known or obvious to her when she later descended the stairs in the dark without a porch light. See Ms. Brown's Brief at 11-12. However, she is mistaken in her characterization of her deposition testimony. In fact, during her deposition, Ms. Brown repeatedly admitted that she saw thick ice on the stairs when she initially arrived at the property, as well as when she returned to the property after buying supplies. Ms. Brown's Deposition testimony, dated 10/14/15, at 36-39, 45. Ms. Brown testified that, when she slipped and fell down the stairs, "I wasn't rushing. I wasn't—no, I wouldn't say I was rushing because I knew it [sic] was ice, so I had to be careful." Id. at 57. Further, when asked if she knew the steps were covered in ice when she descended and fell, Ms. Brown replied, "Yes." Id.
For all of the aforementioned reasons, we affirm the trial court's April 27, 2016, order entering summary judgment in favor of Kinser, Mr. Vernal, and Ms. Shepherd. We direct the parties to attach a copy of the trial court's April 27, 2016, order/opinion in the event of further proceedings.
Affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/21/2016
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