J-A15044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GREGORY NEIFERT,                                :     IN THE SUPERIOR COURT OF
                                                :           PENNSYLVANIA
                     Appellant                  :
                                                :
              v.                                :
                                                :
SPEEDWAY LLC AND TRACEY R.                      :
CORRELL                                         :           No. 1891 MDA 2016

                   Appeal from the Order dated November 7, 2016
                   in the Court of Common Pleas of Berks County,
                            Civil Division, No(s): 15-3929

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED SEPTEMBER 14, 2017

      Gregory Neifert (“Neifert”) appeals from the Order granting the Motion

for Summary Judgment filed by Speedway LLC (“Speedway”), and Tracey R.

Correll    (“Correll”)   (collectively,   “Defendants”),   and   dismissing   Neifert’s

Complaint, with prejudice. We affirm.

      The trial court set forth the relevant history underlying this appeal as

follows:

             Neifert[] allege[d] in his Complaint[, filed on January 2,
      2014,1] that he slipped on ice and fell on the parking lot
      [(hereinafter, “the parking lot”)] of [the predecessor corporation
      of Speedway], Hess Corporation and Hess Mart, Inc. (hereinafter,
      [“the] Store[”]), on December 7, 2012.         [Neifert] sustained
      injuries and lost consciousness for approximately five minutes.
      He subsequently filed a negligence action against [the] Store and
      its manager, [] Correll.




1
 Defendants filed an Answer and New Matter to the Complaint on July 29,
2014. Neifert thereafter filed a Reply.
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           Following the completion of discovery, [D]efendants filed a
     Motion for Summary Judgment [on September 2, 2016.2] The
     following evidence was obtained through discovery.

           [Neifert] purchased a cup of tea at [the] Store on December
     7, 2012, at 7:30 a.m. As he was returning to his truck, he fell [in
     the parking lot] and struck his head. He does not remember
     being in [the] Store and buying his drink.[3] …

           It is undisputed that ice was on the ground near where
     [Neifert] fell due to precipitation that froze on the ground. The
     only employee at [the] Store during [Neifert’s] visit[, Heather
     Knappenberger Pisarra (“Pisarra”),] had arrived for work just
     before 7:00 a.m.[,] when there was a light mist. [Pisarra stated
     that a]t the time of [her] arrival, the ground was wet, but there
     was no ice or snow. No customers complained of any ice to
     [Pisarra].

           Shortly after [Neifert] had exited [the] Store, another
     customer entered it and told [Pisarra] that someone had fallen on
     the [parking] lot. [Pisarra] went outside and provided assistance
     to [Neifert]. [Pisarra] also called 911 and [] Correll.

           [] Correll was approximately one minute away from [the]
     Store when she [] received [Pisarra’s] telephone call. [Correll]
     arrived at [the] Store shortly thereafter and also helped [Neifert].
     [Correll] looked around the [parking] lot and discovered that a
     small portion of the ground had small, thin patches of black ice
     from the ongoing misty rain. She then covered the patches with
     ice melt.



2
  Defendants asserted in their Motion for Summary Judgment that the “hills
and ridges” doctrine barred recovery by Neifert. Defendants alleged that
generally slippery weather conditions existed in the community on the day of
Neifert’s fall, and Defendants had no actual or constructive notice of the icy
condition that had caused Neifert’s injury.      Neifert filed a Response to
Defendants’ Motion.
3
  Neifert testified that he did not remember going to the Store on the morning
in question, the weather conditions at that time, or anything that transpired
after his fall. See N.T., 9/9/15, at 75, 80-81, 86. He stated that his head
injury caused him to have memory deficiencies, and his first memory after
the fall was several weeks later in the hospital. Id. at 75, 79, 111.


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            The parties also took depositions of [] two EMS workers,
     Scott Bernheiser [(“Bernheiser”)] and Carl Moyer [(“Moyer”)],
     who [had] responded to the 911 call. [] Bernheiser described the
     weather as a “kind of freak ice storm” that had begun after his
     arrival for work at 7:00 a.m. [Bernheiser stated that there] was
     still a light rain [occurring] when he had arrived at [the] Store.
     He further testified that “everything was icy” on the [parking] lot
     when he had arrived.

            [] Moyer also testified that there had been black ice in the
     area where [Neifert] had been. [] Moyer had to hold onto one of
     the firefighters because the precipitation had caused some people
     to slide as they were walking [on the parking lot].

           [Neifert] testified that if he had known that there was a
     possibility of ice and icy roads [on the day of the incident], he
     would not have driven a rollback truck [(i.e., the type of tow truck
     that he had driven on the morning in question)] because it does
     not handle well on ice and snow.

           According to [historical records, which Defendants had
     attached as exhibits to their Motion for Summary Judgment, 4]
     there was no precipitation on December 6, 2012, the day before
     the accident. On December 7, 2012, t]here was a light rain that
     began falling at approximately 6:54 a.m.[,] when the temperature
     was 32 degrees Fahrenheit. It was still raining at 7:54 a.m.[,]
     when the temperature was 33.1 degrees Fahrenheit.

Trial Court Opinion, 1/9/17, at 1-3 (footnotes added).5




4
  The records submitted by Defendants appear to be printouts from a website
(Defendants identify it as Weather Underground), which apparently archives
historical weather records.    Neither party produced an expert report
concerning the weather on December 7, 2012.
5
   We additionally note that Ronald Landis (“Landis”), a work friend of
Neifert’s, testified that, though Landis was located several miles away from
the Store at the time of Neifert’s fall, Landis remembered that there was “a
freezing rain event” that morning, which caused “icy conditions everywhere.”
N.T., 7/28/16, at 22, 24.


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      Following a hearing on Defendants’ Motion for Summary Judgment on

November 7, 2016, the trial court entered an Order that same date granting

the Motion and dismissing Neifert’s Complaint, with prejudice. Neifert timely

filed a Notice of Appeal, after which the trial court ordered him to file a

Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.

Neifert timely filed a Concise Statement.      The trial court then issued a

Pa.R.A.P. 1925(a) Opinion.    Therein, the trial court agreed with Defendants

that the “hills and ridges” doctrine applied to this case and precluded recovery

by Neifert.

      Neifert now presents the following issues for our review:

      1. Whether the trial court erred in granting Defendants’ summary
         judgment [M]otion when there were disputed issues of
         material fact concerning the weather conditions/source of the
         icy patch at issue at the time of [Neifert’s] fall?

      2. Whether the trial court erred in granting Defendants’ summary
         judgment [M]otion when there are disputed issues of material
         fact and [] Defendants had actual/constructive notice of the
         ice?

Brief for Appellant at 4.

      “Our scope of review of a trial court’s order granting or denying

summary judgment is plenary[.]” Krapf v. St. Luke’s Hosp., 4 A.3d 642,

649 (Pa. Super. 2010). We may not disturb the order of the trial court unless

it committed an error of law or abused its discretion.    Coleman v. Wyeth

Pharms., Inc., 6 A.3d 502, 509 (Pa. Super. 2010).

           In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the



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      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. … 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.

Id. (citation omitted); see also Lineberger v. Wyeth, 894 A.2d 141, 146

(Pa. Super. 2006) (stating that “a record that supports summary judgment

will either (1) show the material facts are undisputed[;] or (2) contain

insufficient evidence of facts to make out a prima facie cause of action or

defense and, therefore, there is no issue to be submitted to the jury.”);

Overly v. Kass, 554 A.2d 970, 972 (Pa. Super. 1989) (stating that a court

ruling upon a motion for summary judgment must ignore controverted facts

contained in the pleadings and restrict its review to material filed in support

of and in opposition to a motion for summary judgment and to those

allegations in pleadings that are uncontroverted).

      For 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.”    Merlini ex rel. Merlini v. Gallitzin Water Auth., 980

A.2d 502, 506 (Pa. 2009). A land possessor is subject to liability for physical

harm caused to an invitee only if the following conditions are satisfied:




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J-A15044-17

      [the 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[s] will
      not realize it or will fail to protect themselves against it, and the
      [possessor] fails to exercise reasonable care to protect the
      invitees against the danger.

Estate of Swift v. Ne. Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super.

1997) (citation omitted).      Moreover, the “mere existence of a harmful

condition in a public place of business, or the mere happening of an accident

due to such a condition[,] is neither, in and of itself, evidence of a breach of

the proprietor’s duty of care to his invitees, nor raises a presumption of

negligence.”   Myers v. Penn Traffic Co., 606 A.2d 926, 928 (Pa. Super.

1992) (en banc) (citation omitted).

      “There is no absolute duty on the part of a landowner to keep his

premises and sidewalks free from snow and ice at all times. These formations

are natural phenomena incidental to our climate.”         Rinaldi v. Levine, 176

A.2d 623, 625 (Pa. 1962) (citation omitted). Rather, “[i]t must appea[r] 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.”        Id.   This Court has summarized the

doctrine of “hills and ridges” as follows:

      The “hills and ridges” doctrine is a long standing and well
      entrenched legal principle that 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.

                                   ***



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J-A15044-17


      In order to recover for a fall on an ice or snow covered surface, []
      a plaintiff is required to prove: (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; (3) that it was the dangerous accumulation of
      snow and ice which caused the plaintiff to fall.

Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1087, 1088 (Pa.

Super. 1997) (emphasis added, citation and paragraph break omitted).

Accordingly, “a prerequisite to the application of the ‘hills and ridges’ doctrine

is a finding of generally slippery conditions[,] as opposed to isolated icy

patches.” Id.; see also Tonik v. Apex Garages, Inc., 275 A.2d 296, 298

(Pa. 1971) (stating that “[p]roof of ‘hills and ridges’ is necessary only when it

appears that the accident occurred at a time when general slippery conditions

prevailed in the community[.]”).

      In his first issue, Neifert argues that the trial court committed legal

error in entering summary judgment against him because there were

disputed issues of material fact regarding (1) the weather conditions prior to

Neifert’s fall; and (2) the source of the ice upon which he fell. See Brief for

Appellant at 9-14; see also id. at 13 (asserting that “[t]he trial court … made

a factual conclusion regarding the weather conditions[,] when the record

evidence contains material facts in dispute regarding same. Such a decision

is reserved for a jury.”).   Neifert argues that, contrary to the trial court’s

finding, “there is no evidence of generally slippery conditions” existing in the




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J-A15044-17

community on the date in question, and therefore, the hills and ridges

doctrine does not insulate Defendants from liability. Id. at 13. According to

Neifert,

       each witness testified [in depositions] as to different weather
       conditions [on the date of the incident,] and not one witness was
       able to reference any temporal nexus needed to show that there
       were [generally] slippery conditions at the time of the incident,
       that the isolated patch at issue was caused by a recent weather
       event[,] or why there w[ere] no icy conditions on other parts of
       the [parking lot] – all dispositive issues for Defendants to be
       successful with their argument.

Id. at 9-10; see also id. at 10-12, 14 (pointing to the deposition testimony

of Correll, Pisarra, Bernheiser and Moyer, and asserting that these witnesses

gave different accounts regarding the weather conditions on the day of

Neifert’s fall);6 id. at 13 (noting Neifert’s deposition testimony that, although

he did not remember the weather conditions on the day of his fall, he would

not have driven his “rollback truck” had the weather been icy that day, due to

the vehicle’s poor performance in such conditions, which, Defendants urge,

“corrobotate[s] that there were no slippery conditions [on] the morning of the

fall.”).

       We have reviewed the relevant testimony of the witnesses to which

Neifert points, see id. at 10-14, in support of his claim that there was a




6
  We observe that the citations to the Reproduced Record that Neifert sets
forth in his brief do not correspond with the testimony to which he refers,
which significantly complicates our review.


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J-A15044-17

factual dispute as to whether generally slippery conditions existed in the

community on the day of his fall. The record evidence, viewed in a light most

favorable to Neifert, supports the trial court’s following analysis of this

matter:

      No one disputes the fact that some kind of precipitation occurred
      in the morning of December 7, 2012. Some witnesses described
      it as icy rain, and others called it a light mist; however, no one
      controverted the fact that the precipitation froze when it hit the
      ground. The pertinent issue is the state of the parking lot, not
      the exact state of the precipitation. No one disputes that it had
      been raining. Therefore, the state of the precipitation is not a
      material fact because it is quite clear that the general community
      experienced icy conditions.

Trial Court Opinion, 1/9/17, at 4-5.       Viewing the uncontroverted record

evidence in the light most favorable to Neifert, we conclude that there is no

genuine dispute that Neifert’s fall occurred at a time when general slippery

conditions prevailed in the community.

      Moreover, contrary to Neifert’s claim, there was also no testimony or

evidence presented that Neifert fell on a specific localized patch of ice.   In

addressing this claim, the trial court stated as follows:

      [Neifert] next argues that [the trial] court erred in granting
      [D]efendants’ summary judgment [M]otion because [Neifert] fell
      on an isolated patch of ice, thus, negating the “hills and ridges”
      doctrine. … [Neifert] misconstrues the applicability of the
      doctrine of hills and ridges. It is applicable where ice is the
      result of a natural accumulation and there are general slippery
      conditions in the community. It does not maintain that the
      whole property must be one big sheet of ice. Furthermore, [] in
      the instant case, there had to have existed more than one small
      isolated patch of ice because [] Moyer saw people sliding
      elsewhere on the [parking] lot. Water freezes at 32 degrees
      Fahrenheit. It was raining, and the water froze on the ground.



                                   -9-
J-A15044-17


Trial Court Opinion, 1/9/17, at 5 (paragraph break omitted); see also N.T.

(Neifert deposition), 9/9/15, at 75, 80-81 (wherein Neifert stated that he did

not remember anything on the day of his injury, including the condition of the

parking lot or the slippery condition that caused him to fall).     Viewing the

evidence in the light most favorable to Neifert, we agree with the trial court’s

determination that there is no genuine factual dispute in this regard.

      Finally, the trial court correctly found that the uncontradicted facts show

that Neifert failed to produce any evidence that ice had accumulated on the

parking lot in ridges or elevations that unreasonably obstructed his travel and

constituted a danger.     See Trial Court Opinion, 1/9/17, at 7; see also

Wilson v. Howard Johnson Rest., 219 A.2d 676, 678 (Pa. 1966) (where

the plaintiff truck driver had slipped on a sheet of smooth, wet ice in the

parking lot of defendant restaurant, holding that defendant was insulated

from liability by the hills and ridges doctrine, where the plaintiff’s own

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”).

      In his second issue, Neifert contends that the trial court erred in

entering summary judgment against him, where there existed a genuine issue

of material fact as to whether Defendants had actual and/or constructive

notice of the icy condition upon which he fell. Brief for Appellant at 16, 19;

see also Morin, supra (stating that, in order to recover for a fall on an ice-



                                 - 10 -
J-A15044-17

or snow-covered surface, a plaintiff must prove that the property owner had

actual or constructive notice of the existence of such condition).            Neifert

asserts that “the testimony confirms that the icy conditions would have

existed for several hours before [Neifert] fell; that [the Store] employees

would have walked through the parking lot before [Neifert’s] fall[;] and[,] as

such, Defendants had actual or constructive notice of the [dangerous]

condition.” Brief for Appellant at 19. According to Neifert,

      [v]iewing the facts in a light most favorable to [Neifert] as the
      non-moving party, if there were general icy conditions, as []
      Defendants are arguing, then [] Defendants removed that ice
      from other parts of [the parking lot,] with the exception of the
      [area in which Neifert] f[e]ll. Or the ice at issue came from
      something other than precipitation. Either way, it is an issue of
      fact for the jury to decide, not the trial court[.]

Id. at 18.

      In its Opinion, the trial court addressed Neifert’s claim as follows:

      There is absolutely no evidence that [D]efendants knew about the
      slippery conditions prior to [Neifert’s] accident. Moreover, even
      [Neifert] had not realized that the [parking] lot was icy[, i.e.,
      when he had traversed it to enter the Store to purchase his tea].
      Presumably, he entered and exited [the] Store on the same
      general path. He had no trouble traveling to the Store. The ice
      evidently developed rather rapidly between the time of [Neifert’s]
      arrival and departure.

Trial Court Opinion, 1/9/17, at 6; see also id. at 7 (stating that “[n]o one

ever told [Pisarra,] who was working at the time [of Neifert’s fall,] that the

[parking] lot was icy. It had not been icy when [Pisarra] had arrived [at the

Store] approximately thirty minutes earlier.”); id. (finding that “[D]efendants

acted within a reasonable time after receiving notice of [the] condition [of the



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parking lot]. The formation of the ice, [Neifert’s] fall, [the Store’s] knowledge

of the accident, and the ice removal[,] occurred within thirty minutes”).

      Our review discloses that the trial court’s above analysis is supported by

the uncontroverted facts of record, and we agree with its determination that

there is no disputed issue of material fact in this regard. See id. at 6, 7; see

also Estate of Swift, 690 A.2d at 722 (holding that, although the

plaintiffs/appellants had presented evidence that the decedent’s fall was

caused by water on the floor, the plaintiffs/appellants could not establish a

breach of duty because they failed to produce evidence showing that the

defendant hospital had notice of the condition, how the water arrived on the

floor, and how long the condition existed; thus, summary judgment was

proper). Moreover, viewing the record evidence in the light most favorable to

Neifert, there is no support for his controverted supposition that “Defendants

[had] removed [] ice from other parts of [the parking lot,] with the exception

of the [area in which Neifert fell, o]r the ice at issue came from something

other than precipitation.” Brief for Appellant at 18; see also Overly, supra.

Finally, Neifert failed to adduce any evidence to substantiate his claim that

the ice that formed on the parking lot was caused by a source other than the

precipitation that fell on the morning of December 7, 2012, which all of the

witnesses attested to.




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J-A15044-17

     Based upon the foregoing, we conclude that the trial court properly

applied the hills and ridges doctrine and granted Defendants’ Motion for

Summary Judgment.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/14/2017




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