J-A12043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BERWIND ROW, LLC                                IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

TINA M. TEETER

                            Appellee                No. 1706 WDA 2016


                     Appeal from the Order August 19, 2016
                  In the Court of Common Pleas of Blair County
                      Civil Division at No(s): 2014 GN 1930


BEFORE: OLSON, SOLANO and RANSOM, JJ.

MEMORANDUM BY OLSON, J.:                          FILED OCTOBER 10, 2017

       Appellant, Berwind Row, LLC, appeals, by permission, from the

interlocutory order entered on August 19, 2016, denying its motion for

summary judgment. We affirm.

       On June 14, 2014, Tina M. Teeter (hereinafter “Ms. Teeter”) filed a

complaint against Appellant. Within the complaint, Ms. Teeter averred that,

in October 2013, her daughter lived at 616 Berwind Road, in Hollidaysburg,

Pennsylvania.1 Ms. Teeter’s Complaint, 6/14/14, at ¶ 6. Ms. Teeter averred



____________________________________________


1 Ms. Teeter’s complaint incorrectly identified the property’s address. See
Ms. Teeter’s Complaint, 6/14/14, at ¶ 6. However, it is uncontroverted that
the property at issue is located at 616 Berwind Road, Hollidaysburg,
Pennsylvania. See Appellant’s Answer, 10/24/14, at ¶ 6.
J-A12043-17



that her daughter was the lessee of the premises and that Appellant was the

owner and lessor of the property. Id. at ¶¶ 6 and 8.

      According to the complaint, on October 21, 2013, Ms. Teeter was

visiting her daughter when she tripped and fell on stairs at the property,

injuring herself. Id. at ¶¶ 8 and 10-11. Ms. Teeter alleged that: the stairs

upon which she fell were “steep and dangerous [] with narrow tread depth

and over-hanging treads that do not conform to regular construction

standards;” Appellant knew of the dangerous condition that existed upon the

premises; and, Appellant was negligent because it “failed to take any steps

to eliminate the hazard, reduce its danger to invitees, or otherwise warn

users [] of its dangerous, hazardous, unsafe[,] and defective condition.” Id.

at ¶¶ 9 and 13-14.

      On October 24, 2014, Appellant answered the complaint and admitted

that, at the time of the accident, it owned the property in question and it

leased the property to Ms. Teeter’s daughter, Chasity Markle, “who utilized

the property as her own private and personal residence.”              Appellant’s

Answer and New Matter, 10/24/14, at ¶ 6. However, Appellant denied that

it was liable for Ms. Teeter’s injuries. Id. at “Wherefore” Clause.

      Further, within Appellant’s new matter, Appellant claimed that: it was

an owner out of possession, occupancy, or control; if a dangerous condition

existed on the land, the condition was open and obvious; under the lease

agreement, it was the tenant’s duty to “maintain the lease premises in good

repair and to ‘report to [Appellant] any . . . bad steps or other dangerous

                                     -2-
J-A12043-17



conditions that may exist inside or outside of the unit;’” and, “[a]t no time

did the tenant ever provide any notice of any defective condition” regarding

the stairs. Id. at ¶¶ 18-24.

      On December 20, 2016, Appellant filed a motion for summary

judgment and claimed that, as a matter of law, Ms. Teeter could not

establish that Appellant had a duty to warn or otherwise protect Ms. Teeter

against   the   dangerous   condition.     Appellant’s   Motion   for   Summary

Judgment, 12/20/16, at ¶ 10.       In particular, Appellant claimed that Ms.

Markle “was a tenant in exclusive possession and control of the subject

premises pursuant to [the] lease agreement.”        Id. at ¶¶ 7-10.     Appellant

claimed that, as a “landlord out of possession of the subject premises,” it

was not liable “to [its] lessee, or others on the land with the consent of the

lessee, [for] any dangerous condition, whether natural or artificial, which

existed when the lessee took possession and which the lessee knew or

should have known, by a reasonable inspection, existed.” Appellant’s Brief

in Support of Summary Judgment Motion, 12/20/16, at 5, quoting Parquet

v. Blahunka, 84 A.2d 187 (Pa. 1951).

      Second, Appellant claimed, Ms. Teeter admitted that she fell on the

front steps of the premises, that she was aware the front steps were

dangerous, and that she could have avoided the dangerous front stairs by

utilizing the back door to the property.      Appellant’s Motion for Summary

Judgment, 12/20/16, at ¶¶ 15-18.         Therefore, Appellant claimed that Ms.




                                     -3-
J-A12043-17



Teeter assumed the risk of her injury.       Appellant’s Brief in Support of

Summary Judgment Motion, 12/20/16, at 11.

      Finally, Appellant claimed that it was entitled to summary judgment

because Ms. Teeter “has been unable to establish the identity of any

defective condition that allegedly caused her fall.”    Appellant’s Motion for

Summary Judgment, 12/20/16, at ¶ 11.

      Appellant supported its summary judgment motion with documents

that included Ms. Teeter’s answers to interrogatories and the operative lease

between Appellant and Ms. Markle.         Of note, Ms. Teeter provided the

following answer to an interrogatory, asking her to state the “condition or

defect which[, she] contend[s,] caused the accident:”

        The top step is approximately six and a half inches wide,
        which is too narrow to safely descend the stairs. Also, this
        top step is not level and the stairs are steep. [Ms. Teeter]
        acquired knowledge of the condition of the stairs by using
        the stairs.   She acquired this knowledge approximately
        eleven months before the accident. [Ms. Teeter] used
        extreme caution when using the stairs.

Ms. Teeter’s Answers to Interrogatories, attached as “Exhibit C” to

Appellant’s Motion for Summary Judgment, at ¶ 35.

      Moreover, in her answers to interrogatories, Ms. Teeter acknowledged

that she used the front steps to the residence “[a]pproximately every day

for several months” and she was aware that “[t]he back door” to the

residence constituted a secondary exit that “would [have] permit[ted] her to

avoid the allegedly defective stairway.” Id. at ¶ 44.



                                    -4-
J-A12043-17



      The operative lease between Appellant and Ms. Markle declared, in

relevant part:

                          RESIDENTIAL LEASE

                                   ...

        1. This LEASE, dated December 1st, 2012 is between
        LANDLORD[] Berwind Row LLC[,] called “Landlord” and
        TENANT[] Chasity Markle[,] called “Tenant,” for the
        Property located at 616 Berwind Road Hollidaysburg PA
        16648[,] called “Property.”

                                   ...

                             RENTAL TERM

        4. START AND END DATES OF LEASE (also called
        “Term”)
           (A) Start Date: December 1st 2012 []
           (B) End Date: November 20th 2013 []

                                   ...

                     CARE AND USE OF PROPERTY

        9. USE OF PROPERTY AND AUTHORIZED OCCUPANTS
           (A) Tenant will use Property as a residence ONLY.

                                   ...

        11. LANDLORD’S RIGHT TO ENTER
           (A) Tenant agrees that Landlord or Landlord’s
           representatives may enter the Property at reasonable
           hours to inspect, repair, or show the Property. Tenant
           does not have to allow possible tenants to enter unless
           they are with the Landlord or Landlord’s representative,
           or they have written permission from the Landlord.

            (B) When possible, Landlord will give Tenant 24 hours
            notice of the date, time, and reason for the visit.



                                   -5-
J-A12043-17


          (C) In emergencies, Landlord may enter Property
          without notice. If Tenant is not present, Landlord will
          tell Tenant who was there and why within 24 hours of
          the visit.

                                   ...

       12. CONDITION OF PROPERTY AT MOVE IN
          Tenant has inspected the Property and agrees to accept
          the Property “as-is” . . . .

                                   ...

       15. TENANT’S CARE OF PROPERTY
          (A) Tenant will:

                                     ...

              4. Tell Landlord immediately of any repairs needed
              and    of  any    potentially   harmful health  or
              environmental conditions. . . .

          (B) Tenant will not:

                                     ...

              4. Make changes to the property, such as painting or
              remodeling, without the written permission of
              Landlord.   Tenant agrees that any changes or
              improvements made will belong to the Landlord.

              5. Perform any maintenance or repairs on the
              Property unless otherwise stated in the Rules and
              Regulations, if any.

          (C) Tenant is solely responsible to pay the costs for
          repairing any damage that is the fault of Tenant or
          Tenant’s family or guests.

                                 ADDENDUM

                                   ...




                                   -6-
J-A12043-17


        2. Property Conditions – During your tenancy please
        report to us any loose or rotting handrails, bad steps or
        other dangerous conditions that may exist inside or outside
        of the unit.

                                     ...

        9. Repairs – Tenant(s) will be responsible for the price of
        any minor repairs provided the cost to fix said repair is $30
        or less. The owner will be responsible for any repairs over
        $30 provided th[e] necessary repair was not due to tenant’s
        negligence.

Operative Lease, attached as “Exhibit A” to Appellant’s Motion for Summary

Judgment, at 1-5 and Addendum.

      Ms. Teeter responded to Appellant’s summary judgment motion by

claiming that Appellant was “the owner and possessor of the land where [Ms.

Teeter] fell” and that, even if Appellant were a landlord out of possession,

Appellant was still liable because it “retained a right of entry upon the

premises and had constructive notice of the defective condition of the steps

and railing.” Ms. Teeter’s Brief in Opposition, 10/29/15, at 3. Further, with

respect to Appellant’s claim that Ms. Teeter assumed the risk of her injuries,

Ms. Teeter claimed that she could not use an alternate exit and entryway to

the residence because the alternate path was blocked.       See Ms. Teeter’s

Response in Opposition, 10/30/15, at 3.       Ms. Teeter also attached her

deposition transcript to her response, where she testified that the back door

to the residence was blocked at the time she fell down the stairs.        Ms.

Teeter’s Deposition, 6/26/15, at 10-12.




                                    -7-
J-A12043-17



        On April 28, 2016, the trial court heard oral argument on the motion

for summary judgment.          By order entered June 20, 2016, the trial court

denied the motion. Trial Court Order, 6/20/16, at 1.

        Appellant filed a timely application to amend the summary judgment

order to allow for an interlocutory appeal by permission. See McDonald v.

Whitewater Challengers, Inc., 116 A.3d 99, 104 (Pa. Super. 2015) (“an

order     denying    summary       judgment      is   ordinarily   a   non-appealable

interlocutory order”). In its application to amend, Appellant requested that

the trial court amend the order to state that the case “involves a controlling

question of law to which there is substantial ground for difference of opinion

and that an immediate appeal from the [o]rder may materially advance the

ultimate termination of the matter.”             Appellant’s Application to Amend,

7/14/16, at 5; see also 42 Pa.C.S.A. § 702(b).2
____________________________________________


2   Section 702(b) declares:

          (b) Interlocutory appeals by permission.--When a court
          or other government unit, in making an interlocutory order
          in a matter in which its final order would be within the
          jurisdiction of an appellate court, shall be of the opinion that
          such order involves a controlling question of law as to which
          there is substantial ground for difference of opinion and that
          an immediate appeal from the order may materially
          advance the ultimate termination of the matter, it shall so
          state in such order. The appellate court may thereupon, in
          its discretion, permit an appeal to be taken from such
          interlocutory order.

42 Pa.C.S.A. § 702(b).




                                           -8-
J-A12043-17



        The trial court later amended its summary judgment order to declare

that the order “involves a controlling question of law to which there is

substantial ground for difference of opinion and that an immediate appeal

from the order may materially advance the ultimate termination of the

matter.”     Trial Court Order, 8/19/16, at 1.        On September 16, 2016,

Appellant filed a petition for permission to appeal in this Court.           See

Appellant’s United States Postal Service Form 3817 Certificate of Mailing,

9/16/16, at 1.3       On November 10, 2016, this Court granted Appellant’s



____________________________________________


3   In relevant part, Pennsylvania Rule of Appellate Procedure 1311 declares:

           Permission to appeal from an interlocutory order containing
           the statement prescribed by 42 Pa.C.S. § 702(b) may be
           sought by filing a petition for permission to appeal with the
           prothonotary of the appellate court within 30 days after
           entry of such order in the lower court or other government
           unit. . . .    If the petition for permission to appeal is
           transmitted to the prothonotary of the appellate court by
           means of first class, express, or priority United States Postal
           Service mail, the petition shall be deemed received by the
           prothonotary for the purposes of Rule 121(a) (filing) on the
           date deposited in the United States mail, as shown on a
           United States Postal Service Form 3817 Certificate of
           Mailing, or other similar United States Postal Service form
           from which the date of deposit can be verified.

Pa.R.A.P. 1311(b). In this case, Appellant has included the United States
Postal Service Form 3817 Certificate of Mailing in the certified record – and
the certificate of mailing reveals that Appellant deposited its petition for
permission to appeal in the mail on September 16, 2016. See Berwind
Row, LLC v. Teeter, 96 WDM 2016, at Petition for Permission to Appeal.




                                           -9-
J-A12043-17



petition for permission to appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1311.4

       Appellant presents three issues for our review:

         [1.] Whether the trial court erred in denying [Appellant’s]
         motion for summary judgment where there are no genuine
         issues of material fact as to [Appellant’s] position and duty
         as a landlord out of possession and the tenant’s duty to
         report any defects of the stairs or railings on the
         property[?]

         [2.] Whether the trial court erred in denying [Appellant’s]
         motion for summary judgment where there are no genuine
         issues of material fact as to whether Plaintiff had assumed
         the risk of traversing an open and obvious danger where
         she had an alternative route available to her but
         nonetheless chose to traverse the allegedly dangerous
         condition of which she was well aware and had been warned
         of by the tenant (assuming arguendo there was a defect)[?]

         [3.] Whether the trial court erred in denying [Appellant’s]
         motion for summary judgment where Plaintiff is unable to
         identify the alleged defect that caused her fall as set forth in
         her complaint[?]

Appellant’s Brief at 7 (some internal capitalization omitted).

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

summary judgment is plenary, and our standard of review is clear: the trial

court’s order will be reversed only where it is established that the court

committed an error of law or abused its discretion.”          Englert v. Fazio
____________________________________________


4 The trial court did not enter an order directing the filing of a concise
statement of errors complained of on appeal, pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b).




                                          - 10 -
J-A12043-17


Mech. Servs., Inc., 932 A.2d 122, 124 (Pa. Super. 2007) (internal citations

omitted). Moreover,

        [s]ummary judgment is appropriate only when the record
        clearly shows that there is no genuine issue of material fact
        and that the moving party is entitled to judgment as a
        matter of law. The reviewing court must view the record in
        the light most favorable to the nonmoving party and resolve
        all doubts as to the existence of a genuine issue of material
        fact against the moving party. Only when the facts are so
        clear that reasonable minds could not differ can a trial court
        properly enter summary judgment.

Id. (internal citations omitted).

      First, Appellant claims that the trial court erred in denying its summary

judgment motion because it is a landlord out of possession and, as such, it is

subject to a “general rule of non-liability.” Appellant’s Brief at 21. According

to Appellant, “[n]either [Ms. Teeter] nor the [trial] court [] identified any

exception to the general rule of non-liability that may apply to [Appellant] in

this case.” Id. This claim fails.

      This Court has stated:

        As a general rule, a landlord out of possession is not liable
        for injuries incurred by third parties on the leased premises
        because the landlord has no duty to such persons. This
        general rule is based on the legal view of a lease transaction
        as the equivalent of a sale of the land for the term of the
        lease. Thus, liability is premised primarily on possession
        and control, and not merely [on] ownership.

Jones v. Levin, 940 A.2d 451, 454 (Pa. Super. 2007) (internal citations and

quotation omitted).




                                     - 11 -
J-A12043-17


      There are six exceptions to this general rule of non-liability for a

landlord out of possession.     Dorsey v. Cont'l Assocs., 591 A.2d 716,

718-719 (Pa. Super. 1991). We have declared:

        A landlord out of possession may incur liability (1) if he has
        reserved control over a defective portion of the demised
        premises; (2) if the demised premises are so dangerously
        constructed that the premises are a nuisance per se; (3) if
        the lessor has knowledge of a dangerous condition existing
        on the demised premises at the time of transferring
        possession and fails to disclose the condition to the lessee;
        (4) if the landlord leases the property for a purpose
        involving the admission of the public and he neglects to
        inspect for or repair dangerous conditions existing on the
        property before possession is transferred to the lessee; (5)
        if the lessor undertakes to repair the demised premises and
        negligently makes the repairs; or (6) if the lessor fails to
        make repairs after having been given notice of and a
        reasonable opportunity to remedy a dangerous condition
        existing on the leased premises.

Dorsey, 591 A.2d at 718-719 (internal quotations and citations omitted).

      In this case, the trial court denied Appellant’s summary judgment

motion because, it concluded, there was “[a] genuine issue of material fact

[] as to whether [Ms. Teeter] and [Appellant] had knowledge of the alleged

dangerous or defective condition of the stairs and railing.”         Trial Court

Opinion, 6/20/16, at 8-9.    We agree with Appellant that this conclusion is

erroneous, as Ms. Markle agreed to rent the property “as is,” the alleged

dangerous condition was open, and Ms. Teeter admitted that she was aware

of the condition of the stairs for months prior to her fall. Therefore, the trial

court’s reason for denying summary judgment was incorrect.




                                     - 12 -
J-A12043-17


      Nevertheless, “we are not bound by the rationale of the trial court and

may affirm on any basis.” Richmond v. McHale, 35 A.3d 779, 786 n.2 (Pa.

Super. 2012).     And, as Ms. Teeter correctly argues in her brief, when

viewing the record in the light most favorable to her as the nonmoving

party, there is a genuine issue of material fact that Appellant is “subject to

liability as a landlord out of possession under the reserved control

exception.” Ms. Teeter’s Brief at 6. To be sure, the case at bar is controlled

by our opinion in Jones.

      In Jones, the plaintiff sued the defendant after she fell on ice that had

accumulated in a parking lot.     The defendant owned the parking lot, but

leased it to a company named Sam Levin, Inc. Id. at 452-453. The trial

court granted the defendant’s summary judgment motion on the basis that

the defendant was “a landlord out of possession” who “did not have ‘control’

of [] the [premises] on which [the plaintiff] was caused to slip [and] fall.”

Id. at 453.

      On appeal, this Court explained the “reserved control” exception to the

general rule of non-liability for an out-of-possession landlord:

        the landlord may be liable if he or she has reserved control
        over a defective portion of the leased premises or over a
        portion of the leased premises which is necessary to the
        safe use of the property (the “reserved control” exception).
        Restatement (Second) of Torts § 361. The reserved control
        exception is most clearly applicable to cases involving
        “common areas” such as shared steps or hallways in
        buildings leased to multiple tenants.         However, the
        applicability of the exception is not limited to such
        well-defined “common areas.” Our Supreme Court invoked

                                     - 13 -
J-A12043-17


        the reserved control exception in a case involving an
        allegedly defective radiator in one tenant's unit of a building
        occupied by several commercial tenants, after the landlord-
        owner of the building was sued for negligence by a tenant
        who had been seriously burned by steam from the radiator.
        [Smith v. M.P.W. Realty Co., 225 A.2d 227, 228–229 (Pa.
        1967)]. Importantly, the entire building was served by a
        central steam-heating system, which was controlled and
        operated by the landlord. As our Supreme Court explained,

           where the landlord retains control of a part of the leased
           premises, which is necessary to the safe use of the
           leased portion, he is liable to the lessee and others
           lawfully on the premises for physical harm caused by a
           dangerous condition existing upon that part over which
           he retains control, if by the exercise of reasonable care
           he could have discovered the condition and the risk
           involved, and made the condition safe.

        Smith, 225 A.2d at 229 (citing Restatement (Second) of
        Torts § 361 and also noting that § 361 had previously been
        applied to plumbing and heating systems over which the
        landlord had retained control).

Jones, 940 A.2d at 454-455 (some internal citations omitted).

     The Jones Court held that the trial court erred in granting summary

judgment to the defendant because, first, there was a genuine issue of

material fact as to whether the lease between the defendant and Sam Levin,

Inc. was a sham.     Id. at 456.    As an alternative holding, however, the

Jones Court held that – even if the lease were not a sham – the explicit

terms of the lease between the defendant and Sam Levin, Inc. created a

genuine issue of material fact as to whether the defendant “reserved

control” over the parking lot. Id. The Court explained:

        even the terms of the [] lease suggested that the
        [defendant] retained some control over the property.

                                    - 14 -
J-A12043-17


        Although, under the lease, Sam Levin, Inc., as tenant, was
        responsible for all repairs to the premises, the terms of
        the lease also provided that the tenant “shall make no
        structural repairs or alterations without [the
        defendant’s] consent.” In light of this provision, we
        conclude that, even under the [] lease, there is a genuine
        issue of material fact as to whether the [defendant]
        continued to exercise control over defective portions
        of the property in question. If the [defendant] continued
        to exercise such control, the reserved control exception to
        the general rule of out-of-possession landlord non-liability
        may be applicable.

Id. (internal citations omitted) (emphasis added).

      The   alternate   holding   in    Jones   is   binding   on   this   Court.

Commonwealth v. Reed, 971 A.2d 1216, 1220 (Pa. 2009) (“where a

decision rests on two or more grounds equally valid, none may be relegated

to the inferior status of obiter dictum”) (internal quotations, citations, and

corrections omitted).   Moreover, the alternate holding in Jones mandates

that we uphold the trial court’s summary judgment order because, in the

case at bar, the operative lease specifically declares:

        (B) Tenant will not:

                                        ...

            4. Make changes to the property, such as painting
            or remodeling, without the written permission of
            Landlord.    Tenant agrees that any changes or
            improvements made will belong to the Landlord.

            5. Perform any maintenance or repairs on the
            Property unless otherwise stated in the Rules and
            Regulations, if any.




                                       - 15 -
J-A12043-17


Operative Lease, attached as “Exhibit A” to Appellant’s Motion for Summary

Judgment, at 3 (emphasis added).

      As was true in Jones, the above lease provisions forbid the tenant

from making any repairs to the alleged dangerous condition.         Therefore,

pursuant to Jones, the above provisions create “a genuine issue of material

fact as to whether the [Appellant] continued to exercise control over

defective portions of the property in question.”    See Jones, 940 A.2d at

456. As such, under Jones, we must conclude that Appellant’s first claim on

appeal fails because, “[i]f [Appellant] continued to exercise such control, the

reserved control exception to the general rule of out-of-possession landlord

non-liability may be applicable.” See id.

      Next, Appellant claims that the trial court erred in denying its

summary judgment motion because Ms. Teeter assumed the risk of

traversing the alleged dangerous stairs.       Appellant’s Brief at 21.    We

conclude the trial court properly determined that a genuine issue of material

fact exists as to whether Ms. Teeter assumed the risk, thus defeating

Appellant’s summary judgment motion.

      We have explained:

        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. Our Supreme Court
        on occasion has affirmed a trial court's decision that as a
        matter of law, a plaintiff voluntarily proceeded in the face of
        a known risk and absolved the defendant from responsibility

                                    - 16 -
J-A12043-17


         for the injuries sustained. Howell v. Clyde, 620 A.2d 1107
         (Pa 1993) (four justices concurring in this portion of
         holding); Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983).

         However, the 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. Struble v. Valley
         Forge Military Academy, 665 A.2d 4 (Pa. Super. 1995);
         Long v. Norriton Hydraulics Inc., 662 A.2d 1089 (Pa.
         Super. 1995).

Barrett v. Fredavid Builders, Inc. 685 A.2d 129, 130-131 (Pa. Super.

1996).

      As our Supreme Court has held, if the plaintiff has “agreed to accept

the risk and to undertake to look out for [her]self,” the landowner is relieved

of its duty of care to the plaintiff and, thus, does not have any duty to

protect the plaintiff against the dangers she knowingly and voluntarily

chooses to face.    Carrender, 469 A.2d at 125.        Nevertheless, under the

Second Restatement of Torts:

         (1) A plaintiff does not assume a risk of harm unless he
         voluntarily accepts the risk.

         (2) The plaintiff's acceptance of a risk is not voluntary if the
         defendant's tortious conduct has left him no reasonable
         alternative course of conduct in order to

            (a) avert harm to himself or another, or

            (b) exercise or protect a right or privilege of which the
            defendant has no right to deprive him.

Restatement (Second) of Torts § 496E.




                                      - 17 -
J-A12043-17


      In the case at bar, there is a genuine issue of material fact as to

whether Ms. Teeter assumed the risk of her injury because, viewing the

record in the light most favorable to Ms. Teeter, the steps upon which she

fell may have been the sole usable means of egress and ingress to the

property. To be sure, while Ms. Teeter acknowledged that the back door to

the residence constituted a secondary exit that “would [have] permit[ted]

her to avoid the allegedly defective stairway,” Ms. Teeter testified that the

back door was “blocked” at the time she fell down the front stairs.         Ms.

Teeter’s Answers to Interrogatories, attached as “Exhibit C” to Appellant’s

Motion for Summary Judgment, at ¶ 44; Ms. Teeter’s Deposition, 6/26/15, at

10-12. Therefore, there is a genuine issue of material fact as to whether Ms.

Teeter voluntarily encountered the risk associated with using the front stairs.

Thus, the trial court properly held that Appellant was not entitled to

summary judgment on the ground that Ms. Teeter had assumed the risk of

her injury.

      Finally, Appellant claims that the trial court erred in denying its

summary judgment motion because Ms. Teeter cannot identify the cause of

her fall.    Appellant’s Brief at 24.    This is simply incorrect, as Ms. Teeter

testified that she fell because of the unreasonably dangerous front steps and

railing.    Ms. Teeter’s Deposition, 6/26/15, at 9-11; see also Ms. Teeter’s

Answers to Interrogatories, attached as “Exhibit C” to Appellant’s Motion for

Summary Judgment, at ¶ 35 (declaring that she fell because the top step


                                        - 18 -
J-A12043-17


was “too narrow” and “not level” and also that the stairs upon which she fell

were too steep).5 Therefore, Appellant’s final claim on appeal fails.

        Order affirmed. Jurisdiction relinquished.




____________________________________________


5   Ms. Teeter testified:

           [Ms. Teeter]: Well, the top of the porch had a shake to it.
           It was not nailed in correctly I guess, or it was just getting
           old. . . . But the steps were so narrow that my feet don’t fit
           on the steps. It’s a steep drop down. The steps are real
           old.

           I grabbed the side of the railing to walk down. I had the
           [book bag], which she only had a few papers in the [book
           bag], but I grabbed her [book bag] and proceeded to walk
           down the steps. And I just, I don’t know how I slipped, but
           I just fell boom, boom, boom, down them all. Landed on
           the bottom.

           [Appellant’s Attorney]: So you’re not really sure what
           exactly –

           [Ms. Teeter]: I think the railing gave and it caused me to
           fall.

           [Appellant’s Attorney]: You think the railing was loose?

           [Ms. Teeter]: Well, that and the step itself. The first step is
           more, I don’t know what you would say, it pulled out where
           it is built, where it connects to the house I should say. It
           has a slope.

Ms. Teeter’s Deposition, 6/26/15, at 9-10.




                                          - 19 -
J-A12043-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017




                          - 20 -
