J-A34018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LISA ROVINSKY AND JOSEPH                     :    IN THE SUPERIOR COURT OF
ROVINSKY,                                    :         PENNSYLVANIA
                                             :
                           Appellants        :
                                             :
              v.                             :
                                             :
LOURDESMONT/GOOD SHEPHERD                    :
YOUTH AND FAMILY SERVICES,                   :
SISTERS OF THE GOOD SHEPHERD                 :
PROVINCE OF MID-NORTH AMERICA,               :
METZ & ASSOCIATES, LTD, AND METZ             :
CULINARY MANAGEMENT,                         :
                                             :
                            Appellees        :    No. 681 MDA 2014


              Appeal from the Order Entered March 31, 2014,
           In the Court of Common Pleas of Lackawanna County,
                     Civil Division, at No. 2011-02304.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.:                              FILED MARCH 31, 2015

     Lisa Rovinsky (“Appellant”) and Joseph Rovinsky,1 appeal from the

March   31,        2014   order   entering   summary   judgment   in   favor   of

Lourdesmont/Good Shepherd Youth and Family Services, Sisters of the Good

Shepherd Province of Mid-North America, Metz & Associates, LTD, and Metz




1
  Appellant’s husband, Joseph Rovinsky, is a party to this action insofar as
he filed a derivative loss of consortium claim at count three of the amended
complaint. Amended Complaint, 2/24/12. Throughout this memorandum,
when we refer to “Appellant,” we are referring to Lisa Rovinsky.
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Culinary Management (collectively “Appellees”) in this slip-and-fall case.2

After review, we affirm.

      The relevant facts and procedural history of this matter were set forth

by the trial court as follows:

             The instant matter arises out of an April 13, 2009 incident
      which took place at the former Lourdesmont facility in Clarks
      Summit, Pennsylvania. On that date, [Appellant] was present at
      the facility as a business invitee. She was employed by the
      Northeastern     Educational   Intermediate    Unit   19    as   a
      Paraeducator, and was performing as a lunch monitor on April
      13, 2009. See Transcript of December 20, 2012 Oral Deposition
      of Lisa Rovinsky at pg. 10, 18, 27.

             On the date in question, a food fight took place in the
      cafeteria that [Appellant] was monitoring. According to
      [Appellant’s] testimony, the fight broke out in the middle of a
      twenty minute lunch period and lasted approximately five to
      seven minutes. [Transcript of December 20, 2012 Oral
      Deposition of Lisa Rovinsky] at 29. As [Appellant] was exiting
      the cafeteria after the food fight, she slipped in a
      clearish/reddish fluid and was injured. Id. at 41.

Trial Court Opinion, 6/19/13, at 1-2.

      Appellant filed a praecipe for writ of summons on March 11, 2011.

Thereafter, on October 17, 2011, Appellant filed a complaint against

Appellees alleging negligence, and on February 24, 2012, Appellant filed an


2
  In a prior order, filed on June 19, 2013, the trial court granted summary
judgment in favor of Lourdesmont/Good Shepherd Youth and Family
Services and Sisters of the Good Shepherd Province of Mid-North America.
The March 31, 2014 order granted summary judgment in favor of the
remaining defendants, Metz & Associates, LTD, and Metz Culinary
Management. Appellant’s notice of appeal, filed on April 16, 2014, clarifies
that she is appealing the March 31, 2014 order, which made final the June
19, 2013 order, as it disposed of all claims and all parties.

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amended complaint.     In a final order filed March 31, 2014, the trial court

granted the remaining defendants’ motion for summary judgment.                 This

appeal followed.

      On   appeal,   Appellant    presents    three   issues    for   this   Court’s

consideration:

      A. Whether the trial court erred in granting summary judgment
      where [Appellant] did not voluntarily assume the risk but instead
      was acting in the course of her employment and whether the
      route chosen by [Appellant] is considered dangerous, safe, or if
      alternatives exist is a genuine issue of material fact that should
      be decided by the finder of fact?

      B. Whether the trial court erred in granting summary judgment
      where [Appellees’] failure to establish policies and procedures to
      prevent food fights from happening again, having cleanup
      procedures in place following such food fights, and such failures
      put [Appellant] at risk as a business invitee are genuine issues of
      material fact which preclude summary judgment?

      C. Whether summary judgment was not appropriate at the time
      of [Appellees’] motion because discovery was incomplete, expert
      reports    were   not    exchanged    and   the   record   was
      underdeveloped?

Appellant’s Brief at 4 (intermittent capitalization omitted).

      An order granting summary judgment is subject to the following scope

and standard of appellate review:

             Our standard of review [in] an appeal from the grant of a
      motion for summary judgment is well-settled. A reviewing court
      may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.




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             In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the non[-]moving party bears the
      burden of proof on an issue, he may not merely rely on his
      pleadings or answers in order to survive summary judgment.
      Failure of a non-moving party to adduce sufficient evidence on
      an issue essential to his case and on which he bears the burden
      of proof establishes the entitlement of the moving party to
      judgment as a matter of law. Lastly, we will review 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.

Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super. 2008)

(quoting Murphy v. Duquesne University, 777 A.2d 418, 429 (Pa. 2001)).

      Appellant argues that the trial court erred in granting summary

judgment because Appellant did not voluntarily assume the risk of falling

when she walked through the cafeteria following the food fight. Appellant’s

Brief at 15. We conclude that the trial court committed no error or abuse of

discretion in granting Appellees’ motion for summary judgment because

Appellant’s assertion is belied by the record.

      It is undisputed that Appellant was a business invitee at the

Lourdesmont facility at the time of her fall.

      When an invitee enters business premises, discovers dangerous
      conditions which are both obvious and avoidable, and
      nevertheless proceeds voluntarily to encounter them, the
      doctrine of assumption of risk operates merely as a counterpart
      to the possessor’s lack of duty to protect the invitee from those
      risks. By voluntarily proceeding to encounter a known or obvious


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     danger, the invitee is deemed to have agreed to accept the risk
     and to undertake to look out for himself. It is precisely because
     the invitee assumes the risk of injury from obvious and
     avoidable dangers that the possessor owes the invitee no duty to
     take measures to alleviate those dangers. Thus, to say that the
     invitee assumed the risk of injury from a known and avoidable
     danger is simply another way of expressing the lack of any duty
     on the part of the possessor to protect the invitee against such
     dangers.

Montagazzi v. Crisci, 994 A.2d 626, 635-636 (Pa. Super. 2010), (quoting

Carrender v. Fitterer, 469 A.2d 120, 125 (Pa. 1983)).

     Appellant claims that Quinn v. Funk Bldg. Corp., 263 A.2d 458 (Pa.

1970), supports her argument.     Appellant’s Brief at 14-16.    We disagree.

The relevant facts in Quinn are as follows:

            The plaintiff, a structural ironworker, was injured while
     working for Acme Welding and Erection Co. at the Mayfair
     Shopping Center in Bethel Park, Pa. Acme was the project’s
     subcontractor for the erection of the structural steel. At the time,
     the shopping center building was only partially erected; only the
     steel columns, together with the steel beams which connected
     them, were in place. The structure was divided into a number of
     forty-eight foot square bays. Spanning each bay, from beam to
     beam, were “bar joists,” steel members which were to support
     the roof. These bar joists were not of the same weight or
     strength as the steel beams and were intended to support only
     the roof and whatever snow might accumulate on it. The roof
     was to be constructed by first placing steel decking upon the bar
     joists and then placing insulation on top of the decking.

             Although the bar joists were laid in place, they were not
     initially secured to the beams; they were to be secured at a later
     stage of construction. Approximately one week prior to March
     22, 1968, the date on which plaintiff sustained his injuries,
     bundles of steel decking were placed upon the bar joists under
     the direction of Sylvan (a sub-subcontractor under defendant
     Funk for the installation of the decking) by a crane and crew


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     which it had hired. Because of the weight of these bundles of
     steel decking and their placement away from the supporting
     beams, the bar joists sagged and bowed.

           Shortly before the accident, the plaintiff was told by his
     foreman, a Mr. Dawson, to get a ladder from the far side of one
     of the bays. In doing so, he walked beneath five or six bar joists
     on which were resting two bundles of steel decking. While he
     was walking back with the ladder, the bar joists gave way and,
     together with the bundles of decking, fell upon the plaintiff
     causing him serious bodily injury.

Quinn, 263 A.2d at 460.

     The plaintiff in Quinn subsequently filed an action to recover damages

for the injuries he sustained. Quinn, 263 A.2d at 460. Following a trial, the

jury returned a verdict in favor of the plaintiff against one of the original

defendants, Sylvan Sheet Metal Company (“Sylvan”), in the amount of

$125,000.     Sylvan filed a motion for judgment n.o.v. (“JNOV”) and a new

trial. The trial court denied Sylvan’s motions, and Sylvan appealed. Thus,

the issue presented on appeal in Quinn was whether the trial court erred in

denying Sylvan’s motion for JNOV.

     The Supreme Court concluded that:

     reasonable minds could well have differed as to whether the
     plaintiff unreasonably placed himself in a situation known to him
     to be dangerous. We cannot hold, therefore, that plaintiff was
     contributorily negligent as a matter of law. The motion for
     judgment n.o.v. on this ground was properly denied.

Id. at 462.




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       We conclude that Quinn is distinguishable from the case at bar.      In

Quinn, the plaintiff’s injuries were caused not by slipping and falling on a

known and obvious hazard, but rather by objects falling on him while

walking a path that he had traversed safely immediately prior to the

accident. The Court in Quinn reiterated: “We have often said that in cases

of falling objects the proof necessary to establish negligence under the

circumstances need be only slight.” Id. at 461.

       In Quinn, the Supreme Court found that “Plaintiff, having sustained a

concussion, had no recollection of the accident or the events immediately

preceding it. He could not, therefore, testify as to his motivation in choosing

to walk under the bar joists or his assessment of the danger involved.” Id.

at 461. Finally, the Supreme Court found that the plaintiff “had little reason

to appreciate that these bowed bar joists represented a significant danger to

him. They had remained stationary and, though bowed, had supported the

decking bundles for a week. In going to get the ladder almost immediately

before the accident, he had taken the same route without mishap.” Id. at

462.

       In the case at bar, we have markedly different facts, a different

procedural posture, and none of the favorable findings that supported the

plaintiff’s claim in Quinn.    As evidenced by her deposition testimony,

Appellant admitted that there was a food fight resulting in food and liquid




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being strewn across the walls and floor of the cafeteria.         Deposition of

Appellant, 12/20/12, at 28-32.    Furthermore, Appellant admitted that she

chose to walk across the obviously soiled floor:

      Q.[Counsel for Appellees:] As you were exiting the cafeteria and
      before you fell, were you looking at the ground in front of you?

      A.[Appellant:] No.

      Q. Why not?

      A. Because I don’t look at the ground.

      Q. Do you recall where you were looking when you first felt
      yourself slip?

      A. I was looking everywhere.

      Q. Would that be everywhere but the ground?

      A. No. I’m just -- I’m just looking to where I was going.

Id. at 44.

      Upon review, we conclude that the record supports the trial court’s

findings that Appellant was aware that the floor was covered in spilled food

and beverages, chose to walk across the floor despite the spills, and

admitted that she did not look down at the floor where she was walking.

Accordingly, we discern no abuse of discretion in the court’s determination

that Appellant assumed the risk of walking across the soiled floor, and

therefore, Appellees owed her no duty.         Carrender, 469 A.2d at 124.




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Because there was no duty owed, a necessary element of negligence,3

Appellant could not have succeeded in her claim.         For these reasons, we

further agree with the trial court’s conclusion that Appellees were entitled to

judgment as a matter of law. Shepard, 948 A.2d at 856.

      Moreover, because we conclude that Appellant could not establish the

necessary   elements    of   negligence,   Appellant’s   remaining   issues   are

meritless. No expert report or school policy against food fights would alter

the fact that Appellant admitted that she was aware of the floor’s condition

and assumed the risk involved. Therefore, as stated above, Appellees owed

her no duty.   See Carrender, 469 A.2d at 125 (reiterating that plaintiff

cannot recover where plaintiff’s own testimony indicated that danger was

open and obvious).

      For the reasons set forth above, we conclude that the trial court

committed no abuse of discretion or error of law in granting summary

judgment in favor of Appellees. Accordingly, we affirm.

      Order affirmed.




3
  It is well settled that when a plaintiff is complaining of negligence, the
plaintiff must prove the essential elements of duty, breach, causation, and
damages. Wittrien v. Burkholder, 965 A.2d 1229 (Pa. Super. 2009). As
noted above, summary judgment is proper where the plaintiff fails to prove
an essential element of her cause of action. Shepard, 948 A.2d at 856.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/31/2015




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