Opinion
204 WDA 2024 205 WDA 2024 206 WDA 2024 J-A18027-24
09-05-2024
DAVID B. PHILLIPS AND RHONDA PHILLIPS, HIS WIFE Appellants v. ALTAIR REAL ESTATE SERVICES; ALTAIR HOLDINGS, LLC D/B/A ALTAIR REAL ESTATE SERVICES; YARDMASTER, INC. MOXIE ATE, LP; MOXIE ZEN LLC D/B/A MOXIE ZEN, LLC, DAVID B. PHILLPS AND RHONDA PHILLIPS, HIS WIFE Appellants v. ALTAIR REAL ESTATE SERVICES, ALTAIR HOLDINGS, LLC, D/B/A ALTAIR REAL ESTATE SERVICES, YARDMASTER, INC. AND MOXIE ATE, LP, MOXIE ZEN, LLC, D/B/A MOXIE ZEN, LLC DAVID B. PHILLPS AND RHONDA PHILLIPS, HIS WIFE Appellants v. ALTAIR REAL ESTATE SERVICES, ALTAIR HOLDINGS, LLC, D/B/A ALTAIR REAL ESTATE SERVICES, YARDMASTER, INC. AND MOXIE ATE, LP, MOXIE ZEN, LLC, D/B/A MOXIE ZEN, LLC
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered January 16, 2024 In the Court of Common Pleas of Erie County Civil Division at No(s):10130-2021
Appeal from the Order Entered January 16, 2024 In the Court of Common Pleas of Erie County Civil Division at No(s): 2021-10130
Appeal from the Order Entered January 16, 2024 In the Court of Common Pleas of Erie County Civil Division at No(s): 2021-10130
BEFORE: OLSON, J., MURRAY, J., and BENDER, P.J.E.
MEMORANDUM
MURRAY, J.
David B. Phillips (Phillips) and his wife, Rhonda Phillips (collectively, Appellants), plaintiffs in the underlying slip-and-fall negligence action, appeal the order dismissing their complaint with prejudice, and granting summary judgment in favor of the defendants, comprised of (a) Altair Real Estate Services and Altair Holdings, LLC, d/b/a Altair Real Estate Services (collectively, Altair); (b) Yardmaster, Inc. (Yardmaster); and (c) Moxie ATE, LP (Moxie ATE), and Moxie Zen LLC d/b/a Moxie Zen LLC (collectively, Moxie) (all defendants collectively referred to as Defendants). After careful consideration, we affirm.
Appellants claim that on January 23, 2019, Phillips slipped and fell on ice that had formed on the concrete sidewalk ramp (the ramp) leading to his workplace, 3200 Lovell Place, Erie, Pennsylvania (the premises). The trial court elaborated in its summary judgment opinion:
The … premises consisted of, in part, a parking lot and sidewalks; [] Moxie ATE … owned the [premises]/was the landlord; Altair was the property manager (pursuant to an agreement with Moxie); and Yardmaster was responsible for snow and ice removal at the premises (pursuant to an agreement with Moxie ATE …).Trial Court Opinion, 1/16/24, at 3.
Appellants filed a complaint on April 1, 2022, pleading negligence and loss of consortium. Appellants claimed 1) the icy, dangerous condition of the ramp caused Phillips' fall; and 2) Appellants' ensuing injuries and damages were the direct and proximate result of Defendants' negligence. Complaint, 4/1/22, ¶¶ 14-19. Subsequently, each Defendant filed an answer, new matter, and cross-claim. See Trial Court Opinion, 1/16/24, at 2-3 (thoroughly detailing the pleadings, which are not relevant to this appeal). Appellants filed a response to each Defendant's pleading.
The parties subsequently engaged in discovery, including a deposition of Phillips on January 6, 2023. The trial court competently summarized Phillips' testimony in its opinion:
Phillips testified he slipped and fell on ice on his way in to work at … [the premises] on January 23, 2019[,] between 9:00 a.m. and 9:30 a.m.[,] after parking his car, exiting it, and walking down …
[the] ramp.
….
Phillips' shift is 7:15 a.m. to 3:15 p.m., and he usually arrives at work around 7:30 a.m. [N.T., 1/6/23, at] 12. … Due to the weather conditions on th[e] morning [of January 23, 2019], Phillips was delayed in arriving to work. Id. at 12-13.
That morning, [Phillips testified,] "it was raining, ice, sleeting. I mean, it was very icy roads, sleeting." Id. at 12. Phillips testified that before he left for work that day, he had to let his car totally warm up before he could drive because the rain froze as it hit the window. Id. at 53. … Due to the conditions, Phillips testified he most likely salted his driveway and sidewalk that morning. He explained, "[m]y driveway is on a slant so there's many times I have to get up and throw salt, you know." Id. at 14. When he left his house[,] it was "raining and freezing rain" and conditions were "very slippery." Id. at 13-14.
Phillips testified that he experienced the same freezing rain conditions throughout the commute to work that day. Id. at 14. When Phillips arrived at the parking lot at [the premises], he parked in his usual parking spot[,] about two rows straight back from the ramp. Id. at 16. …
There were generally slippery conditions in the overall community at the time of the alleged incident. Id. at 53. Freezing rain continued to fall as Phillips exited [his] car in the parking lot and when he fell. Id. at 14, 55. Phillips testified the black-top parking lot was ice-covered and "[v]ery slippery, icy." Id. at 39, 59-60. There was no snow or slush in the parking lot, just freezing rain[,] which was like black ice. Id. at 21, 62-63. Phillips testified the parking lot that morning "was black ice[." Id.] When asked at different times if there was any level of thickness to the ice or if it was any higher or deeper in one spot than another spot, Phillips could not say. Id. at 36-37[; see also id. at 37 (Phillips testifying, "I could not judge any thickness. I have no clue.").]
Multiple times during his deposition, Phillips expressed his belief that during the relevant period of time[,] the area
was not salted. For example, he did not see salt. Id. at 21. He "could see the parking lot and [that] there was no salt on it or anything like that." Id. at 39. "I know it wasn't salted at the time. That's the one thing I do remember." Id. at 17.
….
Phillips testified to the sequence of events leading to the fall on the ice and to the mechanism of the fall as follows. He was walking straight, [and] pulling his wheeled computer bag behind him with his right hand. He proceeded on the ramp and took perhaps "two or three" steps and started to slip, "and then it just - you know, my leg kicked out. Then I tried to correct myself. I slid down and [fell] …." Id. at 18, 36, 56.
….
Phillips confirmed, "I started down the ramp and my foot slipped out in front of me, and I fell …[.] I got up. That's when my right leg kicked out in front of me and I hyperextended it …[.]" Id. at 65. …
….
Phillips left work early that day, a few hours after [his fall]. Id. at 23-24. On the way back to [Phillips'] car, he did not walk the ramp. Instead, he walked on the grass alongside the ramp because he knew [the grass] wouldn't have been slippery if it had frozen over. Id. [] There were no obstructions of any kind blocking access to the grassy area. Id. at 25. Phillips admitted that nothing prevented him from taking the grass to the street level on his way into work that day, rather than the ramp on which he slipped and fell. Id. at 26.Trial Court Opinion, 1/16/24, at 12, 13-15 (emphasis and footnote added; some quotation marks omitted).
Appellants concede that earlier on the morning of Phillips' fall, Yardmaster, a commercial landscape maintenance provider responsible for snow and ice removal at the premises, arrived at 4:02 a.m. and applied salt to the premises. Appellants' Brief at 17 (acknowledging Yardmaster salted the premises approximately five hours prior to Phillips' fall); see also Appellants' Brief in Opposition to Altair's Summary Judgment Motion, 8/24/23, Exh. A (Yardmaster service record documenting its maintenance of the premises at 4:02 a.m.).
After the close of discovery, each Defendant filed a motion for summary judgment (S/J Motion). In sum, the S/J Motions (1) claimed Defendants were entitled to judgment as a matter of law, as the "hills and ridges" doctrinebarred Appellants from recovery; and (2) sought dismissal of Appellants' complaint. See generally Moxie S/J Motion, 7/3/23; Yardmaster S/J Motion, 7/24/23; Altair S/J Motion, 7/26/23.
"The hills and ridges doctrine, as defined and applied by the courts of Pennsylvania, is a refinement or clarification of the duty owed by a possessor of land and is applicable to a single type of dangerous condition, i.e., ice and snow." Collins v. Phila. Suburban Dev. Corp., 179 A.3d 69, 74 (Pa. Super. 2018) (citation and quotation marks omitted). This doctrine "protects an owner or occupier of land from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations." Morin v. Traveler's Rest Motel, Inc., 704 A.2d 1085, 1087 (Pa. Super. 1997); see also Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa. Super. 2006) ("[T]o 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." (citation omitted)). However, as we discuss further infra, this doctrine can also apply to protect entities that have contracted with owners or occupiers of land (including snow removal entities).
In Altair's S/J Motion, it also argued that the doctrine of assumption of risk applied and barred recovery. Altair S/J Motion, 7/26/23, ¶¶ 43-58. Altair claimed Phillips admitted during his deposition that he: 1) was aware of the slippery conditions prevalent throughout the area attributable to the ongoing winter storm event; 2) had an alternate, non-dangerous route available to enter his workplace (i.e., the grass located alongside the ramp); and 3) chose to walk on a surface (the ice-covered ramp) that constituted an "open and obvious" dangerous condition. Id. ¶¶ 52-56.
Appellants responded to each Defendant's S/J Motion. See generally Brief in Opposition to Moxie's S/J Motion, 7/26/23; Brief in Opposition to Yardmaster's S/J Motion, 8/21/23; Brief in Opposition to Altair's S/J Motion, 8/24/23. In sum, Appellants claimed neither the hills and ridges doctrine nor the doctrine of assumption of risk barred their recovery.
By orders and opinions entered on January 16, 2024, the trial court granted Defendants' respective S/J Motions and dismissed Appellants' complaint with prejudice. These timely appeals followed. Appellants and the trial court complied with Pa.R.A.P. 1925.
The trial court granted the S/J Motions of Moxie and Yardmaster based on the hills and ridges doctrine. The court granted Altair's S/J Motion based on this doctrine, as well as the assumption of risk doctrine.
This Court consolidated the appeals sua sponte.
The trial court stated in its Rule 1925(a) opinion that it relied upon the reasoning stated in its January 16, 2024, opinion. Trial Court Opinion, 3/12/24.
Appellants present three issues for review:
1. Whether the trial court erred by granting [Defendants'] motion[s] for summary judgment, when the trial judge made factual determinations regarding [Phillips'] assumption of risk[,] and whether the negligence exception of the "hills and ridges["] doctrine applied to [Defendants] before the Appellant[s] had the chance for additional discovery?
2. Whether the trial court erred in applying the hills and ridges doctrine to [] Yardmaster as a general contractor and not a land possessor?
3. Whether the trial court erred in finding Appellant assumed the risk[,] when such a determination should have been sent for jury determination under the doctrine of comparative negligence?Appellants' Brief at 7 (some capitalization modified).
We apply the following standard in reviewing the grant of a motion for summary judgment:
[S]ummary judgment is only appropriate in cases where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2(1). 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[,] and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. An appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. Because the claim regarding whether there are genuine issues of material fact is a question of law, our standard of review is de novo and our scope of review is plenary.Nicolaou v. Martin, 195 A.3d 880, 891-92 (Pa. 2018) (some citations omitted). "Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment." Straw v. Fair, 187 A.3d 966, 982 (Pa. Super. 2018) (citation omitted).
In their first issue, Appellants claim the trial court erred in granting summary judgment for Defendants, as "the evidentiary record does not support the application of the hills and ridges doctrine to bar [] Appellants' claims." Appellants' Brief at 14. Specifically, Appellants reference Phillips' deposition testimony:
[Phillips'] retelling of the incident at issue reveals that the ice accumulated on the [] premises was in such size and character to the extent that it unreasonably obstructed travel and constituted a danger to pedestrians. [Phillips] could only take two or three steps before slipping down the ramp, initiating the sequence before he fell.Id. (record citation omitted). Appellants claim Defendants "had both actual and constructive notice of the icy conditions." Id. at 16. Appellants further contend it is "undisputed that the icy condition on the premises was the direct and proximate cause of [Phillips'] fall and subsequent damages." Id.
Appellants emphasize Yardmaster applied salt to the premises approximately five hours before Phillips' fall. Id. at 17. According to Appellants,
[Yardmaster] did not sufficiently or reasonably apply salt, a task they willing[ly] undertook, which left the premises in it[]s slippery and hazardous condition. [Yardmaster's] presence on the premises in the early morning and their application of salt resulted in the condition of the [premises being] … influenced by human
intervention. A question of fact exists as to whether the premises' icy condition was the result of an entirely natural condition or an artificial condition caused by [Defendants'] negligence. Such a determination should have been left to a fact finder and, thus, summary judgment was not appropriate.Id. at 17-18.
Defendants counter Appellants failed to sustain their burden of proving the inapplicability of the hills and ridges doctrine. Specifically, Appellants presented no evidence establishing that Defendants had permitted ice to accumulate in ridges or elevations so as to unreasonably obstruct travel. See Moxie Brief at 12 ("[T]he factual record is devoid of any facts, inferences or evidence by Mr. Phillips establishing that the ice had accumulated into ridges or elevations of such size and character as to unreasonably obstruct his travel, as required under Pennsylvania law."); Altair Brief at 26-28 (same); Yardmaster Brief at 7 ("[Phillips] did not testify that the ice [on the ramp] was hilly or ridged.").
Defendants further argue Appellants did not meet the requirements of any exception to the hills and ridges doctrine. See Moxie Brief at 13-15; Altair Brief at 28-35; Yardmaster Brief at 7-8. As Yardmaster asserts,
there is no evidence that any exception[] to the hills and ridge[s] doctrine applies in this instance as there is no question that the icy[] conditions across the [premises] were of natural origin[,] due to the generalized icy sleet or rain that had been falling all morning and was continuing to fall at the time of [Phillips' fall]. Our courts recognize that such conditions are "natural phenomenon entirely incidental to our climate" for which the law makes allowances. [] Rinaldi v. Levine, 406 Pa. 74, 78[,] 176 A.2d 623, 625 (1962).Yardmaster Brief at 7-8; see also Altair Brief at 31-32 ("While it is undisputed that Yardmaster salted the [premises] at 4:02 a.m., it is further undisputed that the freezing rain event occurring on the day of Mr. Phillips' fall had been ongoing since at least 6:00 a.m., … [and] persisted up to the time that Mr. Phillips … fell." (internal citations omitted)); Moxie Brief at 14 (same).
It is well settled that,
[f]or a party to prevail in a negligence action, a plaintiff must prove that the defendant owed a duty of care to the plaintiff, that duty was breached, the breach resulted in the plaintiff's injury, and the plaintiff suffered an actual loss or damages. A land possessor is subject to liability for physical harm caused to an invitee only if the following conditions are satisfied:
[T]he land possessor knows of or reasonably should have known of the condition and the condition involves an unreasonable risk of harm, the possessor should expect that the invitee will not realize it or will fail to protect himself against it, and the possessor fails to exercise reasonable care to protect the invitee against the danger.
An invitee must present evidence proving either the possessor of the land had a hand in creating the harmful condition, or he had actual or constructive notice of such condition. What constitutes constructive notice depends on the circumstances of the case, but one of the most important factors to consider is the time that elapsed between the origin of the condition and the accident.Collins, 179 A.3d at 73-74 (citations, quotation marks, footnote, and brackets omitted; footnote added; formatting modified). "The mere fact that an accident has occurred does not entitle the injured person to a verdict. A plaintiff must show that the defendant owed a duty of care, and that this duty was breached." Rauch v. Mike-Mayer, 783 A.2d 815, 824 n.8 (Pa. Super. 2001) (citations omitted).
It is undisputed that Phillips was an invitee at the time of his fall.
Instantly, the trial court granted summary judgment for Defendants on the basis of the hills and ridges doctrine. To avoid the application of this doctrine, a plaintiff must establish three elements:
(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.
This Court has further opined that the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove the snow and ice when it is in a dangerous condition.Biernacki v. Presque Isle Condos. Unit Owners Ass'n, 828 A.2d 1114, 1117 (Pa. Super. 2003) (emphasis added; internal citations, quotation marks and brackets omitted).
[T]he burden is upon a plaintiff to prove not only that there was an accumulation of snow and ice on the sidewalk but that such accumulation, whether in the form of ridges or other elevations, was of such size and character to constitute a substantial obstruction to travel. A mere uneven surfacecaused by persons walking on the snow and ice as it freezes will not constitute such an obstruction to travel.Rinaldi, 176 A.2d at 626 (emphasis added). "It must appear that there were dangerous conditions due to ridges or elevations which were allowed to remain for an unreasonable length of time, or were created by defendant's antecedent negligence." Bacsick v. Barnes, 341 A.2d 157, 160 (Pa. Super. 1975) (en banc) (citations omitted).
Here, Appellants argue they presented a genuine issue of material fact as to whether they met an exception to the hills and ridges doctrine, i.e., that the icy condition of the ramp was caused by Yardmaster's antecedent negligence (salting the premises at 4:02 a.m.). Appellants' Brief at 17. Appellants rely on this Court's decision in Harvey, 901 A.2d 523. Appellants' Brief at 17.
In Harvey, after a snowstorm in the general area had ended, a snow plow owned by one of the defendants cleared the subject property. Harvey, 901 A.2d at 525. Shortly thereafter, the plaintiff "slipped and fell on black ice[,] sustained injuries," and later instituted a negligence action. Id.; see also id. (noting plaintiff fell "[a]fter it had stopped snowing"). The trial court found the hills and ridges doctrine applied and barred plaintiff from recovery, and thus entered a nonsuit in favor of defendants at the close of trial. Id.
This Court reversed, noting the evidence "suggest[ed] that the condition of the land was influenced by human intervention." Id. at 527; see also id. at 526 (stating that under the hills and ridges doctrine, the snow and ice complained of must be "the result of an entirely natural accumulation, following a recent snowfall," since "the protection afforded by the doctrine is predicated on the assumption that these formations are natural phenomena incidental to our climate" (emphasis in original; citation, quotation marks and brackets omitted)). In light of the defendant's "interaction with the snow via plowing, the ice in this case could not have been the result of an entirely natural accumulation." Id. at 527 (emphasis and quotation marks omitted); see also id. at 525 (noting plaintiff had "observed that some portions of the road were covered with packed down snow from being plowed and that there were patches of cleared asphalt."). Thus, we held that as the plowing activity may have interacted with recent snowfall to create a dangerous condition, a genuine issue of material fact arose regarding whether the condition resulted from an entirely natural weather event. Id. at 527. Accordingly, we concluded the hills and ridges doctrine did not insulate defendants from liability, contrary to the trial court's finding. Id.
Defendants counter Harvey is distinguishable and unavailing to Appellants. See Moxie Brief at 13-14 ("[T]here is no factual dispute that the alleged condition that caused Mr. Phillips to fall, ([] ice) was the exact natural condition that resulted from the ongoing weather event that day," in contrast to Harvey, where "the condition of the property was caused by human intervention … after the snow event had ended" (emphasis in original)); Altair Brief at 34 (emphasizing that in Harvey, "the area where plaintiff fell … was plowed and salted … after the snow event ended." (italics in original)).
In its opinion, the trial court determined the hills and ridges doctrine precluded Appellants' recovery from Defendants:
There is no genuine issue of material fact that [Appellants] are unable to satisfy the first element of the hills and ridges doctrine.
[See Biernacki, 828 A.2d at 1117 (a plaintiff must establish "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.").] Further, under this doctrine, [Appellants] 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. The [deposition] testimony of Phillips establishes [Appellants] are unable to show that snow and/or ice accumulated on the … ramp in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon. [Appellants] failed to produce evidence … that would support a finding [that] hills and ridges were present at the relevant time and place Phillips fell.
The record is devoid of evidence of any differing thicknesses of the ice in the area where Phillips fell, or of ridges, hills, or elevations of any size, let alone those of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon. See[, e.g., N.T., 1/6/23, at 37 (Phillips testifying he "could not judge any thickness" in the ice on the ramp). Appellants] are unable to satisfactorily establish any Defendant owed a duty of care to Phillips under the hills and ridges doctrine or under traditional negligence theory. In the absence of a duty of care owed by any Defendant, [Appellants] may not recover against any Defendant in this negligence action.Trial Court Opinion, 1/16/24, at 15-16 (bold emphasis in original; remaining emphasis added; footnote and some quotation marks omitted).
The trial court further rejected Appellants' claim that Yardmaster's antecedent negligence caused or contributed to the dangerous condition of the ramp:
Generally slippery conditions prevailed in the geographic area from the time Phillips left his residence at 6:00 a.m.[,] if not earlier, until sometime after the alleged slip-and-fall incident[,] which occurred between 9:00 a.m. and 9:30 a.m.
Any suggestion [that] something other than a natural accumulation of ice was present at the time and location of the
incident is pure conjecture. The record is devoid of evidence of the presence of any "patches" of ice, or of ridges, hills, or elevations of any size comprised of ice, sleet or snow or a combination of the same. Phillips' consistent account is [that] he did not see salt and he did not believe the subject area was salted. There is no indication in the record [that] the surfaces[,] which Phillips described as being very slippery and icy and consisting of "black ice[,]" were in a state of disrupt from salting activity [by Yardmaster] five or more hours prior to his slip and fall [o]n the ice.
There is no basis for application to any Defendant of the antecedent negligence exception to the "hills and ridges" doctrine. [Appellants] failed to offer any information tending to show that a failure to exercise care in an undertaking either 1) increased the risk of harm to Phillips, or 2) that Phillips suffered his alleged harm due to reliance upon the undertaking.
[Appellants'] focus in asserting the negligence exception is the performance of salting work by Yardmaster. The claim of antecedent negligence of Yardmaster strains credulity.
[Appellants] failed to offer any information of a fact tending to show the manner of salting work performed at 4:0[2] a.m. increased the risk of harm to Phillips more than five hours later, during which interval of time an ongoing winter storm event consisting of rain, freezing rain and sleet continued to persist. [Appellants] are also hard-pressed to assert reliance upon an undertaking by Yardmaster, inasmuch as Phillips' testimony is that at the time he fell, he did not believe salting work had been performed.Id. at 16-17 (bold emphasis in original; remaining emphasis added).
The trial court's reasoning is supported by the law and the record. We agree with its conclusion that Appellants failed to sustain their burden of proof as to (a) the size and character of any ridge or elevation of ice on the ramp that may have constituted a substantial obstruction to pedestrian travel; and (b) the antecedent negligence exception. See id.; see also, e.g., Wilson v. Howard Johnson Rest., 219 A.2d 676, 678 (Pa. 1966) (where plaintiff slipped and fell on smooth, wet ice in the parking lot of defendant restaurant, holding the hills and ridges doctrine applied and insulated defendants from liability, where plaintiff's testimony established that "the cause of his fall was wet, slippery ice, devoid of any obstructions or ridges or elevations allowed to remain for an unreasonable length of time ….").
Our decision in Collins, 179 A.3d at 69, is controlling. There, during an ongoing blizzard, the plaintiff "slipped and fell on an ice/snow covered sidewalk on property owned by [a defendant] and leased to [plaintiff's] employer …." Id. at 71. Plaintiff instituted a negligence action against the landowner (defendant), as well as other defendants. Id. Defendant moved for summary judgment, invoking the hills and ridges doctrine, arguing defendant "had no duty to remove ice/snow from the premises during the blizzard." Id. (footnote omitted). Defendant emphasized plaintiff's admission in discovery that "from early that morning to the time of his fall[,] there was a blizzard occurring." Id. (brackets omitted). The trial court granted defendant's summary judgment motion based on the hills and ridges doctrine. Id. at 72.
On appeal, this Court affirmed:
There is no factual dispute that [plaintiff] slipped and fell on ice/snow during an active blizzard; that is, at a time when "generally slippery conditions" prevailed in the community. Moreover, under prevailing law, a landowner has no obligation to correct the conditions until a reasonable time after the winter storm has ended. Accordingly, as a matter of law, [defendant] had no duty to remove the ice and snow, which began at approximately 8:30 a.m., from the sidewalk at the time
[plaintiff] fell between 1:30 p.m. and 2:00 p.m., particularly in light of the fact [that] the blizzard was still occurring at this time. See Biernacki,[ 828 A.2d at 1117] (holding landowner did not have [a] duty to remove snow by the next morning after snowfall); Gilligan v. Villanova University, 401 Pa. Super. 113, 584 A.2d 1005, 1007 (Pa.[ ]Super. 1991) ("Snow and ice upon a pavement create merely transient danger, and the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove it when it is in a dangerous condition.") (citations omitted)).Collins, 179 A.3d at 75-76 (some citations omitted; emphasis added).
Additionally, the Collins Court rejected plaintiff's claim that he met the antecedent negligence exception to the hills and ridges doctrine, reasoning as follows:
We dispose of this argument simply by noting that [plaintiff] concede[s] a snowstorm was in progress at the time of [plaintiff's] fall. Thus, under the hills and ridges doctrine, [defendant] had no affirmative duty to ensure the removal of the ice/snow until a reasonable time after the cessation of the winter storm. Absent any evidence that [defendant] created the hazard or exacerbated the storm-created condition, we agree with the trial court that the hills and ridges doctrine precluded [defendant's] liability.Id. at 76-77 (citation omitted; emphasis added).
Instantly, like Collins, Appellants concede that Phillips' fall occurred during an ongoing winter storm event, which caused slippery, icy conditions in the general vicinity. Significantly, Phillips admitted that freezing rain continued to fall when he arrived at the premises and walked on the ramp. N.T., 1/6/23, at 14, 55; see also Appellants' Brief at 22 (conceding that Phillips "was aware that freezing rain was occurring at the time of the incident"). Moreover, although Yardmaster had applied salt to the premises prior to Phillips' fall, the record establishes Phillips slipped and fell on ice that was an entirely natural accumulation, attributable to an ongoing winter storm. Cf. Harvey, 901 A.2d at 527. Appellants merely hypothesize that Yardmaster left unnatural accumulations of ice on the ramp after its salting activity. Based on the foregoing, the trial court did not err or abuse its discretion in concluding the hills and ridges doctrine precluded Appellants' recovery, and granting Defendants' respective S/J Motions on that basis. Appellants' first issue does not merit relief.
In their second issue, Appellants argue the "trial court erred in applying the hills and ridges doctrine to [] Yardmaster," as it is "a general contractor and not [a] land possessor." Appellants' Brief at 18. Appellants cite a single authority in their one-paragraph argument: Wentz v. Pennswood Apartments, 518 A.2d 314, 316 (Pa. Super. 1986) (stating the hills and ridges doctrine is a "clarification of the duty owed by a possessor of land and is applicable to a single type of dangerous condition, i.e., ice and snow covered walks." (emphasis added)). Appellants' Brief at 18.
Appellants correctly point out that "Yardmaster was a contractor employed by [] Moxie, the actual possessor" of the premises. Appellants' Brief at 18.
Preliminarily, we address whether Appellants preserved this issue for review. Appellants' court-ordered concise statement pertaining to Yardmaster, even when liberally construed, did not raise or reasonably suggest this issue. See Concise Statement (Yardmaster), 3/7/24. Accordingly, Appellants waived this issue. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph [] are waived."); Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (same).
The trial court's order directing Appellants to file a concise statement expressly cautioned, "Any issue not properly included in the Statement timely filed and served pursuant to Pa.R.A.P. 1925(b) shall be deemed waived." Order, 2/15/24.
The trial court did not address this issue in its Rule 1925(a) opinion. See Lord, 719 A.2d at 308 ("Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the appellate process.").
Nevertheless, even if not waived, we would determine this issue lacks merit. Yardmaster argues the trial court did not err or abuse its discretion in applying the hills and ridges doctrine to it. Yardmaster Brief at 8-9. We agree.
Yardmaster correctly points out that in Biernacki, 828 A.2d 1114,
a case arising out of a fall [on snow and ice] in a parking lot, the hills and ridges doctrine was specifically applied to[, inter alia,] a snow removal contractor because plaintiff's claim against it was, as in this matter, based in tort rather than contract; therefore, the hills and ridges doctrine is applicable to Yardmaster in the case herein as well. Id. [at 1117;] see also O'Leary v. Fed. Realty Inv. Trust, 268 A.3d 452 (Pa. Super. [] 2021) [(unpublished memorandum at 6) ("Where a snow removal entity is alleged to be negligent based on a theory of liability rooted in tort […], the entity is protected by the 'hills and ridges'
doctrine to the same degree as a landowner." [(emphasis added)]).Yardmaster Brief at 9 (footnote added); see also Biernacki, 828 A.2d at 1117 (holding, "the hills and ridges doctrine is applicable [to defendant snow removal entity] because [plaintiff's] suit is based in tort rather than contract," and rejecting plaintiff's claim of the doctrine's inapplicability "because the parties contracted for snow removal" (footnote omitted)). Based on the foregoing, the trial court properly extended the hills and ridges doctrine to Yardmaster. Appellants' second issue is waived, and also fails on the merits.
Pursuant to Pa.R.A.P. 126(b)(1)-(2), unpublished non-precedential memorandum decisions of this Court filed after May 1, 2019, may be cited for their persuasive value.
In their third and final issue, Appellants claim the trial court improperly entered summary judgment in favor of Altair based on the doctrine of assumption of risk. See Appellants' Brief at 19-24. Appellants maintain "such a determination should have been sent for jury determination under the doctrine of comparative negligence." Id. at 19; see also id. at 24 ("[E]ven if [Phillips'] choice of path was negligent, such a finding would not suffice to qualify his actions as assuming the risk," as "reasonable minds may disagree on the extent of [Phillips'] negligence, warranting consideration by a fact finder."). According to Appellants, the dangerous condition that caused Phillips' fall (i.e., ice on the ramp), was "neither known nor obvious" to him. Id. at 22; see also id. at 21 (citing Barrett v. Fredavid Builders, Inc., 685A.2d 129, 130 (Pa. Super. 1996) ("Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known and obvious risk and therefore is considered to have assumed liability for his own injuries.")). Appellants further claim the fact that Phillips "was aware that freezing rain was occurring at the time of the incident is not determinative to [his] appreciating and accepting the risk of entering the ramp …." Id. at 22.
In their respective S/J Motions (and appellate briefs), Moxie and Yardmaster did not raise the doctrine of assumption of risk.
Altair counters the trial court correctly ruled that Appellants' recovery was barred based on the doctrine of assumption of risk. See Altair Brief at 36-45. Altair claims,
There is no genuine issue of material fact that the icy conditions of the ramp were open and obvious, that an alternate, non-slippery route was available to [Phillips], and that [Phillips] proceeded in the face of a known danger (here, the ice), despite the availability of … [a] non-slippery route of travel.Id. at 36 (bold omitted). Altair emphasizes Phillips' deposition testimony that he (a) was aware that slippery conditions prevailed in the general vicinity (including the ramp) before and at the time of his fall; (b) did not believe the premises had been salted; and (c) could access his workplace via an alternate, non-slippery route (i.e., grass alongside the ramp), but chose to instead travail the icy ramp. Id. at 44.
This Court has explained the
assumption of risk doctrine … eliminates a defendant's duty of care to the plaintiff where the plaintiff has consented to relieve the defendant of that duty or the plaintiff has voluntarily
participated in an activity which carries an inherent risk of the very damages which the plaintiff sustained.Massaro v. McDonald's Corp., 280 A.3d 1028, 1037 (Pa. Super. 2022).
[A]ssumption of the risk is established as a matter of law only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Voluntariness is established only when the circumstances manifest a willingness to accept the risk. Mere contributory negligence does not establish assumption of the risk. Rather, a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff's injuries. In order to prevail on assumption of risk, the defendant must establish both the "awareness of the risk" prong and the "voluntariness" prong.Staub v. Toy Factory, Inc., 749 A.2d 522, 529 (Pa. Super. 2000) (en banc) (internal citations and some quotation marks omitted). Although the question of whether the assumption of the risk doctrine applies "is usually a question of fact for the jury," the court may resolve the issue "where reasonable minds could not differ as to the conclusion." Howell v. Clyde, 620 A.2d 1107, 1110 n.8 (Pa. 1993) (citations omitted); see also Barrett, 685 A.2d at 131 ("[T]he determination that the plaintiff has assumed the risk of his injuries such that recovery is prevented should occur only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.").
Generally, a plaintiff will be found to have assumed the risk only where it has been sufficiently demonstrated that he or she fully understands the specific risk, and voluntarily chooses to encounter it, under circumstances that manifest a willingness to accept it.Ott v. Unclaimed Freight Co., 577 A.2d 894, 899 (Pa. Super. 1990) (citation, quotation marks and brackets omitted).
Instantly, the following exchange occurred at Phillips' deposition:
Q. [Counsel for Yardmaster]: What were the conditions like when you left your house that morning in terms of what the weather was doing?
A. [Phillips:] Raining and freezing rain, that's what it was.
Q. Okay. So the entire time from when you left your house until you got to the office, was it that same freezing rain?
A. Yes.
Q. Okay. And when you left your house, what were the ground conditions like, you know, the sidewalks, your driveway or the grass?
A. Very slippery. I had to get up and probably salt the driveway and sidewalk. My driveway is on a slant so there's many times I have to get up and throw salt, you know.
Q. And then what were the roads like?
A. Slippery.
….
Q. Okay. And when you got to [the premises], it was still the same ongoing precipitation that you'd seen that entire morning?
A. Yes.N.T., 1/6/23, at 13-14 (emphasis added). Phillips' testimony continued:
Q. And what was the condition of the parking lot like?
A. Very slippery, icy. I know it wasn't salted at the time. That's one thing I do remember. I walked up to the ramp and when I hit the ramp, that's when [Phillips' fall] happened.
Q. Can you sort of walk me through exactly what happened?
A. I walked straight and I'm pulling my computer bag … behind me. I got up to the ramp, started going down[,] slowly in fact[,] because I know it wasn't salted or anything, and then … my leg kicked out. Then I tried to correct myself. I slid down and [fell] …. My ankle twisted … and my knee hyperextended.Id. at 17-18 (emphasis added).
Furthermore, Phillips testified that when he left his workplace later that day, he utilized an alternate, non-slippery route to successfully get to his car:
Q. As of the time you left, you didn't see any salt when you were going back out to your car?
A. Not that I can recall, no.
Q. Now, the grassy area next to the ramp that you went back up [when leaving work], did that have any obstructions or anything blocking it in any way?
A. No. [] I stepped up off the street onto the grass and there's a little curb there, you know, where that ridge cut out on the other side. It was right there. I stepped up on the grass, went that way just so I didn't have to walk up the ramp. …
….
Q. Sir, had anything prevented you from taking the grass down to the street level[, i.e., earlier that day when Phillips had arrived at work]?
A. No. I just always take my normal route[, i.e., via the ramp]. That's how I've always went. Other people were going down [the ramp] so I went down as well.Id. at 25-26 (emphasis added); see also id. at 24 (Phillips testifying that when he walked back to his car, he "went to the side of the ramp on the grass …. There's grass alongside there and so I used that just to make sure.").
Ther trial court, in opining it properly applied the doctrine of assumption of risk to Altair, reasoned as follows:
The testimonial admissions of Phillips establish there is no genuine issue of material fact [that] the elements of the defense of assumption of the risk are met. Phillips has [previously] observed the ramp at [the premises] in slippery or snow-covered or ice-covered conditions. In his words, that morning the black-top parking lot was ice-covered and "[v]ery slippery, icy." [N.T., 1/6/23, at 17.] Phillips testified to his particular awareness of the risks attendant with slanted surfaces in freezing, icy weather. [See, e.g., id. at 14.] He most likely even salted his own driveway that morning, given the conditions and the fact [that] his driveway "is on a slant." [Id.] Yet, Phillips proceeded onto the ramp. Phillips testified nothing prevented him from taking the grass … on his way into work that day, and he offered no explanation why he did not take the alternate route. [Id. at 25. Appellants'] assertions Phillips was unaware of the icy conditions of the ramp and/or did not fully appreciate the risk of harm to him presented by the conditions are belied by the record.Trial Court Opinion, 1/16/24, at 17 (emphasis added; some quotation marks omitted). The trial court's reasoning is supported by the law and the record, and we agree with its conclusion.
Our decision in Ott, 577 A.2d 894, is controlling. There, the plaintiff instituted a negligence action after she slipped and fell while walking through defendant's snow- and ice-covered parking lot. Id. at 895; see also id. (plaintiff explaining pedestrians frequently used the parking lot as a "shortcut" to a train station, plaintiff's destination). Plaintiff testified in her deposition that (a) "she could see the ice and could distinguish the ice from the bare ground," id. at 898; and (b) "she knew that the ice was slippery and that she could slip and fall on the ice and be injured …." Id. at 899; see also id. at 895 ("[S]now and ice were present on the surface of the parking lot and were readily apparent to [plaintiff.]"). Notably, plaintiff also conceded there was "an alternative route [that] was readily available to her." Id. at 898. The trial court entered summary judgment in favor of defendants, concluding they "owed no duty to [plaintiff] because she assumed the risk of crossing the ice-covered parking lot." Id. at 895.
On appeal, this Court affirmed, emphasizing plaintiff's testimony established that she (a) "was well aware of the risks involved in attempting to cross the ice;" and (b) "nevertheless proceeded to encounter it in spite of the fact that an alternative route was readily available to her." Id. at 898. We determined plaintiff "fully understood that she could fall on the ice and sustain injury, and that she voluntarily chose to cross the parking lot, even though there was an alternative path available to her." Id. at 899. As such, plaintiff assumed the risk of injury, which barred her recovery. Id.
Applying Ott, we conclude that Phillips' testimonial admissions established beyond question that he voluntarily and knowingly proceeded in the face of an obvious, dangerous condition. Similar to the circumstances in Ott, Phillips (a) was well aware of the dangerous, icy condition of the ramp (which, he believed, had not been salted); (b) appreciated the risks of traversing it; and (c) "nevertheless proceeded to encounter it in spite of the fact that an alternative route was readily available" to him that, he admitted, posed no danger. Id. at 898. Accordingly, we discern no trial court error or abuse of discretion in granting Altair's S/J Motion based on the doctrine of assumption of risk.
Based on the foregoing, we affirm the orders granting Defendants' S/J Motions and dismissing Appellants' complaint with prejudice.
Order affirmed.
Judgment Entered.