J. A12036/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

REBECCA BROCK,                    :            IN THE SUPERIOR COURT OF
                                  :                  PENNSYLVANIA
                    Appellant     :
                                  :
                 v.               :
                                  :
TURKEY HILL MINIT MARKETS D/B/A   :
TURKEY HILL, LP AND THE KROGER CO :                 No. 3461 EDA 2017
AND D670 KROGER C STRES/TURKEY :
HILL/MINIT MR                     :


             Appeal from the Order Entered September 8, 2017,
           in the Court of Common Pleas of Northampton County
                   Civil Division at No. C48-CV-2015-9738


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED JANUARY 24, 2019

      Rebecca Brock (“appellant”) appeals from the September 8, 2017 order

of the Court of Common Pleas of Northampton County entering summary

judgment in favor of Turkey Hill Minit Markets, the Kroger Co., and D670

Kroger C Stres/Turkey Hill/Minit Mr’s (collectively, “appellees”) and against

appellant. After careful review, we affirm.

      The trial court provided the following recitation of the relevant facts:

            [Appellant] alleges that she was injured at
            approximately 3:30 p.m. [on January 5, 2014,] after
            she exited her vehicle and was walking towards the
            store entrance.     Christopher Marsh, [appellant’s]
            boyfriend and passenger, testified that a “light mist”
            was falling as they arrived at the Turkey Hill. He
            further testified that he observed ice “pretty much
            everywhere. There was ice all over the parking lot.”
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            [Appellant] herself testified that the area where she
            fell was covered in smooth, shiny ice, such that the
            asphalt appeared wet.        She did not notice the
            condition of the rest of the parking lot. After she fell,
            Mr. Marsh, the EMTs and the police were sliding on the
            ice while trying to help [appellant]. Melissa Olsen, the
            Manager in Training for that Turkey Hill location,
            arrived at work approximately thirty minutes prior to
            [appellant’s] fall and described the conditions of her
            commute as “horrible” and the weather at that time
            as cold, rainy and snowy.              Additionally, a
            meteorological report states that on the date of the
            incident, sleet/freezing rain fell in the area from
            approximately 12:22 p.m. to 3:45 p.m. with air
            temperatures between 23 and 29 degrees.

Trial court order and opinion, 9/8/17 at unnumbered *3 (citations omitted).

      On March 25, 2015, appellant filed a complaint sounding in negligence

with the Court of Common Pleas of Philadelphia County.         The Philadelphia

County court granted appellees’ petition to transfer venue for forum

non conveniens on August 28, 2015, transferring the case to the trial court.

Following discovery, appellees filed a motion for summary judgment with an

accompanying brief in support on January 30, 2017. Oral argument was held

before the trial court on July 25, 2017. On September 8, 2017, the trial court

granted appellees’ motion for summary judgment.

      On October 6, 2017, appellant timely filed a notice of appeal to this

court. The trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on October 25, 2017,

and appellant timely complied on November 14, 2017. The trial court filed a

statement on November 17, 2017, pursuant to Pa.R.A.P. 1925(a), in which it



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incorporated the content of its September 8, 2017 opinion and order entering

summary judgment in favor of appellees.

      Appellant raises the following issues for our review:

            1.     Did the Trial Court err in finding that the “hills
                   and ridges” doctrine applied to the facts of this
                   case when [appellant] presented evidence
                   showing that the icy conditions were not the
                   result of an entirely natural accumulation as a
                   result of [appellees’] employees plowing and
                   salting the parking lot prior to [appellant’s] fall?

            2.     Did the Trial Court err in finding that the “hills
                   and ridges” doctrine applied to the facts of this
                   case in light of testimony contradicting the claim
                   that generally icy conditions were present at the
                   time of [a]ppellant’s slip and fall?

            3.     Did the Trial Court err in granting [appellees’]
                   Motion     for   Summary     Judgment     when
                   [appellant] offered evidence of insufficient
                   salting of the parking lot?

Appellant’s brief at 4.

      In reviewing an appeal from the trial court’s grant of a motion for

summary judgment, we are governed by the following standard of review:

                   [O]ur standard of review of an order
                   granting summary judgment requires us
                   to determine whether the trial court
                   abused its discretion or committed an
                   error of law. Our scope of review is
                   plenary. In reviewing a trial court’s grant
                   of summary judgment, we apply the same
                   standard as the trial court, reviewing all
                   the evidence of record to determine
                   whether there exists a genuine issue of
                   material fact. We view the record in the
                   light most favorable to the non-moving
                   party, and all doubts as to the existence


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               of a genuine issue of material fact must
               be resolved against the moving party.
               Only where there is no genuine issue of
               material fact and it is clear that the
               moving party is entitled to a judgment as
               a matter of law will summary judgment be
               entered. All doubts as to the existence of
               a genuine issue of a material fact must be
               resolved against the moving party.

               ***

               Upon appellate review, we are not bound
               by the trial court’s conclusions of law, but
               may reach our own conclusions.

          Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798
          (Pa.Super. 2012) (internal citations omitted).

          Rule of Civil Procedure 1035 governs motions for
          summary judgment and provides, in relevant part, as
          follows:

               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


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                         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.       This Court has explained the
            application of this rule as follows:

                   Motions       for     summary     judgment
                   necessarily and directly implicate the
                   plaintiff’s proof of the elements of a cause
                   of action. Summary judgment is proper
                   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. In
                   other words, 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 and
                   the moving party is entitled to judgment
                   as a matter of law, summary judgment is
                   appropriate. Thus, a record that supports
                   summary judgment either (1) shows the
                   material     facts     are  undisputed    or
                   (2) contains insufficient evidence of facts
                   to make out a prima facie cause of action
                   or defense.

            Petrina, 46 A.3d at 798.

Criswell v. Atlantic Richfield Co., 115 A.3d 906, 908-909 (Pa.Super. 2015).

      In their motion for summary judgment, appellees relied on the hills and

ridges doctrine.




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          The hills and ridges doctrine, “as defined and applied
          by the courts of Pennsylvania, is a refinement of
          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.” Wentz v. Pennswood
          Apartments, [] 518 A.2d 314, 316 ([Pa.Super.]
          1986). See Williams v. Shultz, [] 240 A.2d 812,
          813-[8]14 [(Pa.] 1968) (indicating that the doctrine
          of hills and ridges applies to preclude liability where
          “the accident occurred at a time when general slippery
          conditions prevailed in the community as a result of
          recent precipitation” (citations omitted)).

          In order to recover for a fall on an ice or snow covered
          surface, a plaintiff must show:

                      (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 Condominiums Unit
          Owners Ass’n, Inc., 828 A.2d 1114,] 1117
          [(Pa.Super. 2003)] (quotations omitted).

          As this Court has held, “the hills and ridges doctrine
          may be applied only in cases where the snow and ice


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            complained of are the result of an entirely natural
            accumulation following a recent snowfall[.]” Harvey
            v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526
            (Pa.Super. 2006) (quotation marks, quotation, and
            emphasis omitted). Further, “the protection afforded
            by the doctrine is predicated on the assumption that
            ‘[t]hese formations are [n]atural phenomena
            incidental to our climate[.]’” Id. (quotation and
            citation omitted).

Collins v. Philadelphia Suburban Dev. Corp., 179 A.3d 69, 74 (Pa.Super.

2018).

      The hills and ridges doctrine is not an absolute defense that can be used

by a property owner any time a plaintiff brings a cause of action sounding in

negligence as a result of a slip and fall on ice and/or snow. Indeed,

            [t]his general “hills and ridges” rule is subject to a
            number of [other] significant exceptions. Thus, proof
            of hills and ridges is not required when the hazard is
            not the result of a general slippery condition prevailing
            in the community, but of a localized patch of ice.
            Tonik v. Apex Garages, Inc., [] 275 A.2d 296 ([Pa.]
            1971); Williams v. Schultz, [] 240 A.2d 812 ([Pa.]
            1968). Nor is proof of hills and ridges required when
            an icy condition is caused by the defendant's neglect,
            as where a city maintains a defective hydrant, water
            pipe, drain, or spigot. Ward v. Pittsburgh, [] 44
            A.2d 553 ([Pa.] 1945).

Harmotta v. Bender, 601 A.2d 837, 842 (Pa.Super. 1992), appeal denied,

608 A.2d 30 (Pa. 1992), quoting Bacsick v. Barnes, 341 A.2d 157, 160

(Pa.Super. 1975). See also Beck v. Holly Tree Homeowners Ass’n, 689

F. Supp.2d 756, 762-763 (E.D.Pa. 2010) (applying Pennsylvania law).

      In the case before us, the trial court concluded that appellant “can point

to no evidence that would establish that the ice in the area where she fell was


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anything other than a natural accumulation and generally slippery as a result

of an ongoing weather event.”         (Trial court order and opinion, 9/8/17 at

unnumbered *5.) The trial court further determined that when “viewing the

evidence in the light most favorable to [appellant] as the non-moving party,

it is clear that genuine issues of material fact do not exist.”           (Id. at

unnumbered *4.) We agree.

        Appellees produced an expert report from John R. Scala, PhD CCM1

(“Dr. Scala”). In his report, Dr. Scala noted that a winter storm caused six to

eight inches of snow to fall in Northampton County between January 2 and

January 3, 2014, with bitterly cold air settling over the area until the morning

of January 5, 2014. (Scala Report at *2; R.R. at 52a.)

              The frigid air mass produced record low, sub-zero
              temperatures at [Lehigh Valley International Airport]
              from January 3 through January 5, 2014.              The
              prolonged cold resulted in 45 consecutive hours with
              an air temperature at or below 20°F and
              98 consecutive hours of sub-freezing temperatures.
              These weather conditions froze the asphalt surface
              present in the parking lot of the Turkey Hill Minit Mart
              as well as several inches below presenting an ideal
              design    for    instantaneous    freezing    of   liquid
              precipitation falling upon it.

Scala Report at *2; R.R. at 53a. These conditions caused raindrops to “freeze

immediately upon contact with the sub-freezing ground leading to a rapid

accumulation of ice.” (Id. at *2; R.R. at 53a.)




1   Dr. Scala is a certified consulting meteorologist.


                                        -8-
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      Dr. Scala also elaborated on the specific weather conditions present on

the day and time of the incident.

            Doppler radar from KDIX provided a more accurate
            assessment of the precipitation coverage, intensity,
            and start and stop times relative to the automated
            observations from [Lehigh Valley International
            Airport]. The data indicated the precipitation began
            between 12:12 pm and 12:22 pm on January 5, 2014
            in the vicinity of the Turkey Hill. Steady light to
            moderate freezing rain persisted for more than three
            hours before ending between 3:45 pm and 3:55 pm.
            The air temperature rose from 23°F to 29°F during
            this time, based on the observations from [Lehigh
            Valley International Airport].

Id. at *2; R.R. at 53a.    Ultimately, Dr. Scala concluded that the weather

conditions the day of the incident provided an “ideal design for the

instantaneous freezing of liquid precipitation falling upon [the surface of the

Turkey Hill parking lot.]” (Id. at *2; R.R. at 53a.)

      Appellant did not provide any expert testimony or report to rebut

Dr. Scala’s conclusions.   The facts and evidence viewed in the light most

favorable to appellant reflect that appellant failed to produce evidence of facts

essential to the cause of action which would necessitate the issues being

submitted to a jury. See Pa.R.Civ.P. 1035.2(2). Accordingly, we find that the

trial court did not err when it granted appellees’ motion for summary

judgment.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 1/24/19




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