J-E01008-15

                              2015 PA Super 217



TRACY TRUAX                                     IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

TANYA P. ROULHAC, WILDWOOD 115,
INC., AND SILVIO VITIELLO

                         Appellee                    No. 1797 EDA 2013


               Appeal from the Order Entered June 12, 2013
              In the Court of Common Pleas of Monroe County
                   Civil Division at No(s): 9958 Civil 2010

BEFORE: BOWES, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J.,
        OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.

OPINION BY MUNDY, J.:                             FILED OCTOBER 07, 2015

      Appellant, Tracy Truax, appeals from the order entered June 12, 2013,

granting summary judgment in favor of Wildwood 115, Inc. (Wildwood) and

Silvio Vitiello (collectively, Appellees). After careful review, we reverse and

remand for proceedings consistent with this opinion.

      The relevant facts and procedural history of this case are as follows.

This negligence case arises out of an accident in which a minivan driven by

Tanya Roulhac hit Truax on the sidewalk outside of Madd Anthony’s Bar

(Madd Anthony’s). Madd Anthony’s was one of the businesses located in a

150-foot wide building that is parallel to, and set back from, Route 115 in

Effort, Monroe County, Pennsylvania.     Vitiello was the sole owner of the

commercial parcel that contained both the building housing Madd Anthony’s
J-E01008-15


and a common parking lot, shared by all tenants. Complaint, 10/14/10, at ¶

7.   Wildwood was the corporate operator of two of the building’s tenants,

Madd Anthony’s, and the neighboring La Roma Pizza.            Id. at ¶ 5.

Wildwood’s tenancy included nonexclusive use in common of the parking lot,

located in front of the building. Wildwood’s Motion for Summary Judgment,

6/28/12, at ¶ 5. A concrete sidewalk for pedestrians runs the full length of

the front of the building. Vitiello’s Motion for Summary Judgment, 6/19/12,

at Exhibit 1. There are two extensions, or “bump outs,” on the front of the

building, which protrude out onto the sidewalk and almost completely block

the walking area such that a pedestrian maneuvering around them is

redirected toward the parking lot. Truax’s Answer to Wildwood’s Motion for

Summary Judgment, 8/30/12, at Exhibit E, Summary of Traffic and Site

Engineering Findings, 8/30/12, at 5.

      On March 4, 2009 at approximately 10:30 p.m., Truax and her fiancé,

Craig Foulkes, arrived at Madd Anthony’s. Complaint, 10/14/10, at ¶ 8. As

the two walked along the sidewalk toward Madd Anthony’s, Roulhac drove

her minivan into one of the head-on parking spaces directly in front of, and

perpendicular to, the sidewalk. Id. at ¶ 10. When Roulhac failed to stop,

the minivan jumped the five-inch tall concrete wheel stop and struck Truax,

pinning her to the building. Id. At that location, the parking lot was level

with the sidewalk; there was no curb. Truax’s Answer to Wildwood’s Motion

for Summary Judgment, 8/30/12, at Exhibit E, Summary of Traffic and Site


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Engineering Findings, 8/30/12, at 3. The only barrier between the parking

lot and sidewalk was the horizontal, five-inch tall concrete wheel stop. Id.

      After the accident, a helicopter transported Truax to Lehigh Valley

Hospital Center, where she was treated for multiple injuries to her left leg.

Complaint, 10/14/10, at ¶ 13.       Even after the completion of treatment,

Truax walks with a limp and has several permanent scars. Id.

      Roulhac fled the scene of the accident.        Id. at 11.    Police later

apprehended her and charged her with driving under the influence after a

blood test revealed a BAC of 0.10 and positive results for cocaine and THC.

Wildwood’s Motion for Summary Judgment, 6/28/12, at ¶ 3.               Roulhac,

however, was released on bail and fled, and Truax has been unable to locate

her to serve her with the complaint in this case. Id. at ¶ 6.

      On October 14, 2010, Truax filed a complaint, asserting a claim for

negligence against Roulhac, claims for premises liability and a dram shop act

violation against Wildwood, and a claim for premises liability against Vitiello.

Complaint, 10/14/10, at ¶¶ 1-34.      On November 16, 2011, Truax filed a

stipulation voluntarily dismissing the dram shop claim against Wildwood. In

June 2012, after the completion of discovery, Vitiello and Wildwood filed

separate motions for summary judgment.         Appellees both contended that

the harm was not foreseeable because Vitiello was unaware of any similar

incidents of motor vehicles jumping the wheel stops.       Vitiello’s Motion for

Summary Judgment, 6/19/12, at ¶ 11; Wildwood’s Motion for Summary


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Judgment, 6/28/12, at ¶ 11.           Moreover, they argued they were under no

duty to install any other types of barriers to separate the parking lot from

the sidewalk. Vitiello’s Motion for Summary Judgment, 6/19/12, at ¶¶ 16-

28; Wildwood’s Motion for            Summary Judgment, 6/28/12, at ¶         15.

Specifically, Vitiello maintained that his duty as a possessor of land is

coextensive with the building and zoning codes, and he discharged that duty

because the wheel stops complied with the applicable zoning ordinance

governing commercial off-street parking.          Vitiello’s Motion for Summary

Judgment, 6/19/12, at ¶¶ 16-28.

       On October 3, 2012, the trial court issued an order granting summary

judgment in favor of Appellees and entering judgment accordingly.           Trial

Court Order, 10/3/12. In its opinion, the trial court reasoned, “a possessor

of land is not the insurer of the safety of his patrons and must only take

reasonable measures to control the conduct of third persons.”         Trial Court

Opinion, 10/3/12, at 7 (citation omitted). The trial court further opined as

follows.

                    No Pennsylvania court has held that a business
              owner was negligent for failing to install vertical
              bollards[1] in addition to horizontal wheel stops and
              we are not inclined to do so here. [Appellees] have
              complied with all applicable building codes and
              zoning ordinances, and to impose a duty upon
              property owners above and beyond these standards
____________________________________________


1
  Bollards are short vertical posts made of concrete or steel that can be
arranged to obstruct the passage of vehicles.



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            would defeat the purpose of having such standards
            in the first place. It would not be wise to allow juries
            to determine building standards on an ad-hoc basis
            as this would result in confusion and inconsistency
            across the Commonwealth.          Further, there is no
            evidence that a similar curb-jumping incident had
            ever occurred on [Vitiello’s] property. We find that
            the possibility that a vehicle driven by an intoxicated
            individual might drive over a concrete wheel stop
            and strike a pedestrian so remote and unforeseeable
            that it would be oppressive to hold that [Appellees]
            should have taken measures to prevent such an
            occurrence.

Id. at 8. Truax filed a motion for reconsideration of this decision, which the

trial court denied on October 5, 2012. On October 16, 2012, Truax filed a

timely notice of appeal to this Court. On June 6, 2013, a panel of this Court

quashed the appeal because the action against Roulhac was still pending.

See Truax v. Roulhac, 82 A.3d 456 (Pa. Super. 2013) (unpublished

judgment order at 1).

      Thereafter, on June 10, 2013, Truax filed with the trial court a petition

for the entry of a final order as to fewer than all parties pursuant to

Pennsylvania Rule of Appellate Procedure 341(c). Consequently, on June 12,

2013, the trial court entered a final order pursuant to Rule 341(c),

determining that an immediate appeal would facilitate resolution of the

entire case and that its October 3, 2012 order granting summary judgment

was a final order.   On June 19, 2013, Appellant filed a timely notice of




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appeal to this Court.2 A panel of this Court issued a memorandum affirming

the grant of summary judgment. See Truax v. Roulhac, 1797 EDA 2013

(Pa. Super., filed 9/24/2014) (unpublished memorandum, withdrawn). The

Honorable Mary Jane Bowes filed a dissenting memorandum.                 See id.

(Bowes, J., dissenting) (unpublished dissenting memorandum, withdrawn).

Truax filed a petition for reargument en banc, which this Court granted on

December 4, 2014. Superior Court Order, 12/4/14 (per curiam). After the

filing of supplemental briefs, this matter is ready for disposition.

       On appeal, Truax presents two issues for our review, which we have

reordered for our discussion, as follows.

              [1.]   Did Vitiello and Wildwood owe a duty to take
                     reasonable measures to protect business
                     invitees from the foreseeable risk of curb-
                     jumping vehicles?

              [2.]   Did the trial court err in holding as a matter of
                     law that Vitiello and Wildwood had taken
                     reasonable precautions to protect business
                     invitees from vehicle intrusion onto a bar’s
                     sidewalk?

Truax’s Amended Brief at 3. Because these issues arise in the context of the

trial court’s order granting summary judgment in favor of Appellees and

dismissing Truax’s claims, the following standard and scope of review applies

to our consideration of this case.

____________________________________________


2
 Truax and the trial court have complied with Pennsylvania Rule of Appellate
Procedure 1925.



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                  As has been oft declared by [our Supreme]
            Court, “summary judgment is appropriate only in
            those cases where the record clearly demonstrates
            that there is no genuine issue of material fact and
            that the moving party is entitled to judgment as a
            matter of law.” Atcovitz v. Gulph Mills Tennis
            Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002); Pa.
            R.C.P. No. 1035.2(1). When considering a motion
            for summary judgment, the trial court must take all
            facts of record and reasonable inferences therefrom
            in a light most favorable to the non-moving party.
            Toy v. Metropolitan Life Ins. Co., 928 A.2d 186,
            195 (Pa. 2007). In so doing, the trial court must
            resolve all doubts as to the existence of a genuine
            issue of material fact against the moving party, and,
            thus, may only grant summary judgment “where the
            right to such judgment is clear and free from all
            doubt.” Id. On appellate review, then,

                  an appellate court may reverse a grant of
                  summary judgment if there has been an error
                  of law or an abuse of discretion. But the issue
                  as to whether there are no genuine issues as
                  to any material fact presents a question of law,
                  and therefore, on that question our standard of
                  review is de novo. This means we need not
                  defer to the determinations made by the lower
                  tribunals.

            Weaver v. Lancaster Newspapers, Inc., 926 A.2d
            899, 902-03 (Pa. 2007) (internal citations omitted).
            To the extent that this Court must resolve a question
            of law, we shall review the grant of summary
            judgment in the context of the entire record. Id. at
            903.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (parallel

citations omitted).

      “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


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summary judgment.” Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1223 (Pa.

Super. 2012) (citations omitted), appeal denied, 65 A.3d 412 (Pa. 2013).

Further, “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.” Id.

            Thus, our responsibility as an appellate court is to
            determine whether the record either establishes that
            the material facts are undisputed or contains
            insufficient evidence of facts to make out a prima
            facie cause of action, such that there is no issue to
            be decided by the fact-finder. If there is evidence
            that would allow a fact-finder to render a verdict in
            favor of the non-moving party, then summary
            judgment should be denied.

Id., quoting Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa. Super.

2011) (citations omitted).

     In order to hold a defendant liable for negligence, the plaintiff must

prove the following four elements: (1) a legally recognized duty that the

defendant conform to a standard of care; (2) the defendant breached that

duty; (3) causation between the conduct and the resulting injury; and (4)

actual damage to the plaintiff.   Ramalingam v. Keller Williams Realty

Group, --- A.3d ---, 2015 WL 4927797, at *5 (Pa. Super. 2015). The trial

court explained that it granted summary judgment because it concluded as a

matter of law that there was no duty because the harm was unforeseeable.

Trial Court Opinion, 10/3/12, at 8.   Further, the trial court declared that


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even if there was a duty, Appellees fulfilled it by complying with all

applicable building codes and zoning ordinances. Id.

      In her first issue on appeal, Truax asserts that Appellees owed a duty

to protect her from the foreseeable risk of curb-jumping vehicles. Truax’s

Amended Brief at 19-20.     The level of any duty owed to one present on

another’s land depends on that person’s status.      Cresswell v. End, 831

A.2d 673, 675 (Pa. Super. 2003) (citation omitted).     All the parties agree

that Appellees owed Truax a duty because she had the status of a business

invitee of Madd Anthony’s.       Truax’s Amended Brief at 13; Vitiello’s

Supplemental Brief at 15; Wildwood’s Brief at 7.     Likewise, the trial court

found that Appellees owed Truax a duty as a business invitee. Trial Court

Opinion, 10/3/12, at 5.

      “The duty owed to a business invitee is the highest duty owed to any

entrant upon land. The landowner is under an affirmative duty to protect a

business visitor not only against known dangers but also against those which

might be discovered with reasonable care.” Charlie v. Erie Ins. Exch., 100

A.3d 244, 253 (Pa. Super. 2014), quoting Emge v. Hagosky, 712 A.2d 315,

317 (Pa. Super. 1998).    Specifically, the duty to protect business invitees

against intentional or negligent acts of third parties is expressed in Section

344 of the Restatement (Second) of Torts as follows.

            § 344. Business Premises Open to Public: Acts
            of Third Persons or Animals




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             A possessor of land who holds it open to the
             public for entry for his business purposes is
             subject to liability to members of the public
             while they are upon the land for such a
             purpose, for physical harm caused by the
             accidental, negligent, or intentionally harmful
             acts of third persons or animals, and by the
             failure of the possessor to exercise reasonable
             care to

                   (a) discover that such acts are being done
                   or are likely to be done, or

                   (b) give a warning adequate to enable the
                   visitors to avoid the harm, or otherwise to
                   protect them against it.

Restatement (Second) of Torts § 344; see also Moran v. Valley Forge

Drive-In Theater, Inc., 246 A.2d 875, 878 (Pa. 1968) (adopting Section

344).

        Comment f to Section 344 explains the duty to protect business

invitees against third party conduct arises only if the owner has reason to

anticipate such conduct.

             f. Duty to police premises. Since the possessor is
             not an insurer of the visitor’s safety, he is ordinarily
             under no duty to exercise any care until he knows or
             has reason to know that the acts of the third person
             are occurring, or are about to occur.         He may,
             however, know or have reason to know, from past
             experience, that there is a likelihood of conduct on
             the part of third persons in general which is likely to
             endanger the safety of the visitor, even though he
             has no reason to expect it on the part of any
             particular individual. If the place or character of his
             business, or his past experience, is such that he
             should reasonably anticipate careless or criminal
             conduct on the part of third persons, either generally
             or at some particular time, he may be under a duty

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              to take precautions against it, and to provide a
              reasonably sufficient number of servants to afford a
              reasonable protection.

Restatement (Second) of Torts § 344 cmt. f.

      Consequently, Appellees owed Truax “a duty owed to any business

invitee, namely, that [they] would take reasonable precaution against

harmful     third   party   conduct    that   might     be   reasonably   anticipated.”

Paliometros v. Loyola, 932 A.2d 128, 133 (Pa. Super. 2007) (citations

omitted).

              The reason is clear; places to which the general
              public are invited might indeed anticipate, either
              from common experience or known fact, that places
              of general public resort are also places where what
              men can do, they might. One who invites all may
              reasonably expect that all might not behave, and
              bears responsibility for injury that follows the
              absence of reasonable precaution against that
              common expectation.

Feld v. Merriam, 485 A.2d 742, 745 (Pa. 1984).

      Accordingly, as a matter of law, Appellees had a duty to exercise

reasonable care to protect its business invitees, including Truax, from all

harmful third party conduct that Appellees reasonably anticipated due to

either the place or character of the business, or Appellees’ past experience.

See   Restatement       (Second)      of   Torts    §   344;   Paliometros,    supra.

Specifically, in this case, if it was reasonably foreseeable that a vehicle

operated by a third party would encroach on the sidewalk, then Appellees




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had a duty to exercise reasonable care to protect its business invitees from

that harm.

     The record before the trial court revealed Truax introduced sufficient

evidence from which the jury could conclude that the harm was foreseeable.

Specifically, Truax presented the expert report of James D’Angelo, a

Professional   Engineer   and     the    principal   and   founding   partner    of

Transportation Engineering and Construction, Inc.            Truax’s Answer to

Wildwood’s Motion for Summary Judgment, 8/30/12, at Ex. E, Summary of

Traffic & Site Engineering Findings, at 1. D’Angelo examined the parking lot

outside   of   Madd   Anthony’s   to    determine    how   the   conditions   there

contributed to the accident and Truax’s injuries. Id. During the course of

his investigation, D’Angelo observed signs that the two “bump outs” of the

building, which encroach out onto the sidewalk, have been hit by vehicles

“because either the curb stop is not set back far enough to prevent the

overhang of a vehicle from hitting the building or the parking maneuver was

performed at a higher and potentially uncontrollable speed.” Id. at 5. He

also noted that four painted, concrete post bollards had been installed to

protect a well casing on the southeastern corner of the property. Id. at 6.

Based on his inspection, D’Angelo concluded “that the owner was aware of




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measures which would have increased pedestrian safety while on the

sidewalk.” Id. at 8.3

____________________________________________


3
  Appellees now contend that D’Angelo’s report could not support a prima
facie case of negligence as a matter of law because he did not express his
opinion to “a reasonable degree of engineering standards” nor did he identify
the relevant standards. Vitiello’s Supplemental Brief at 7-15; Wildwood’s
Supplemental Brief at 3-6. First, we note that “[i]n negligence actions,
[e]xpert testimony is not required where the matter under investigation is so
simple, and the lack of skill or want of care so obvious, as to be within the
range of the ordinary experience and comprehension of even
nonprofessional persons.” Ovitsky v. Capital City Econ. Dev. Corp., 846
A.2d 124, 126 (Pa. Super. 2004) (citations and internal quotation marks
omitted). Here, a jury would be capable, even without expert testimony, to
decide whether Appellees took reasonable care to protect its business
invitees by using common sense notions of safety in evaluating its parking
lot security measures. See id. (concluding, in case of injury to a business
invitee due to the criminal conduct of a third party, that lay jurors could
determine whether the hotel’s security measures were reasonable). Thus,
Truax could establish a prima facie case that Appellees did not meet the duty
of care even without accepting D’Angelo’s opinions.

      Moreover, “expert witnesses are not required to use ‘magic words’
when expressing their opinions; rather, the substance of their testimony
must be examined to determine whether the expert has met the requisite
standard.” Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 155 (Pa.
2009) (emphasis removed; citation omitted). Here, D’Angelo concluded,
“Based on my review, it is my professional opinion that the site … is deficient
from a[] … pedestrian protection standpoint.” Truax’s Answer to Wildwood’s
Motion for Summary Judgment, 8/30/12, at Ex. E, Summary of Traffic & Site
Engineering Findings, at 8. He also noted that the site could be “brought up
to standards” by installing a vertical curb of at least five inches and bollards
to protect pedestrians. Id. Viewed in its entirety, D’Angelo’s report met the
standard of being expressed to a reasonable degree of engineering certainty.

      Finally, the report contained facts and observations, separate from
D’Angelo’s opinions, which demonstrate a factual issue exists of whether
Appellees met the standard of care. Therefore, Appellees could not meet
their burden to show that no genuine issue of material fact exists. See
Summers, supra.



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      Similarly, Truax provided the affidavit of William Breuer, the owner of

a strip mall adjacent to the plaza containing Madd Anthony’s. Id. at Ex. D,

Affidavit of William Breuer, at 1. He stated that 40 years ago, he installed

bollards between the head-on parking area and the sidewalk in front of his

strip mall “because [he] understood there was a safety issue with head-on

parking directly facing a pedestrian walkway.”   Id.   He observed the four

bollards protecting the well casing protruding from the ground at Madd

Anthony’s. Id. He also recalled that years ago, there were large rocks in

place to separate the Madd Anthony’s parking lot from the sidewalk, but

“they were removed after a vehicle pushed one of them into the building.”

Id.

      This evidence, viewed in a light most favorable to Truax, would enable

a reasonable jury to conclude that Appellees had actual or constructive

knowledge of a foreseeable risk of harm to business invitees walking on the

sidewalk, and the trial court should not have decided the issue as a matter

of law.   See Young v. Prizm Asset Mgmt. Co., 100 A.3d 594, 602 (Pa.

Super. 2014) (concluding that summary judgment was not appropriate when

a business invitee’s evidence created a question for the jury of whether

defendant had actual or constructive notice of criminal acts of third

persons); Rabutino v. Freedom State Realty Co., Inc., 809 A.2d 933,

939-941 (Pa. Super. 2002) (reversing trial court’s order granting summary

judgment when business invitee presented evidence that would enable a


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reasonable jury to find the defendant had “actual knowledge of a foreseeable

risk of harm that went effectively unchecked[]”). Truax presented evidence

that Appellees were aware or should have been aware of the risk of vehicles

intruding onto the sidewalk, including the report of D’Angelo and the

affidavit of Breuer.         Accordingly, the fact-finder could conclude that

Appellees had a duty to exercise reasonable care to protect Truax, as its

business invitee, from that reasonably foreseeable harm. See Paliometros,

supra.

       We do not agree with the trial court that the risk of a vehicle

encroaching on a sidewalk is per se unforeseeable as a matter of law.4 Such

a rule is contrary to the principle of Pennsylvania law that the question of

foreseeability should be submitted to the jury unless the plaintiff does not

present evidence on that issue. See, e.g., Alumni Ass’n, Delta Zeta Zeta

of Lambda Chi Alpha Fraternity v. Sullivan, 535 A.2d 1095, 1098 (Pa.

Super. 1987) (noting that while the scope of a duty may be limited to

reasonably foreseeable risks, “[o]nly when the question of foreseeability is

undeniably clear may a court rule as a matter of law that a particular
____________________________________________


4
  Compare State Farm Fire & Cas. Co. v. Bell, 30 F. Supp. 3d 1085, (D.
Kan. 2014) (noting that the majority of jurisdictions analyzing the duty to
protect business invitees “have concluded there is no liability because
[vehicle incursion] accidents are insufficiently likely as a matter of law”
before rejecting that approach and holding that the foreseeability of a third
party’s acts is a question of fact for the jury), quoting Jefferson v. Qwik
Korner Mkt., Inc., 34 Cal. Rptr. 2d 171, (Cal. Ct. App. 1994), with Alumni
Ass’n, supra.



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defendant did not have a duty to a particular plaintiff[]”), affirmed, 572 A.2d

1209 (Pa. 1990), citing Migyanko v. Thistlewaite, 419 A.2d 12, 14 (Pa.

Super. 1980) and Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 100

(N.Y. 1928). Summary judgment is inappropriate in premises liability cases

involving business invitees where the evidence establishes a prima facie case

that the third party’s accidental, negligent, or intentional conduct was

reasonably foreseeable to the occupant of the premises. In this case, Truax

presented evidence that would allow a jury to conclude that the risk of a

vehicle encroaching on the sidewalk in front of Madd Anthony’s was

reasonably foreseeable.   Therefore, we conclude the trial court erred as a

matter of law by holding that curb-jumping is per se unforeseeable. See id.

Accordingly, we reverse the trial court’s grant of summary judgment based

on the issue of the foreseeability of the harm, because we conclude this

issue should have been submitted to the jury.

      In Truax’s second issue, she contends that the trial court erred by

concluding that Appellees discharged their duty as a matter of law by

complying with all applicable building codes and zoning ordinances. Under

Pennsylvania law, the issue of whether a defendant has breached its duty is

normally submitted to the jury.

                  While the existence of a duty is a question of
            law, whether there has been a neglect of such duty
            is generally for the jury. However, the issue of
            whether an act or a failure to act constitutes
            negligence may be removed from consideration by a
            jury and decided as a matter of law when the case is

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            free from doubt and there is no possibility that a
            reasonable jury could find negligence.

Emerich v. Phila. Ctr. for Human Dev., Inc., 720 A.2d 1032, 1044 (Pa.

1998) (citations omitted).

      As discussed above, Appellees had a duty to exercise reasonable care

to protect its business invitees, including Truax, from all harmful third party

conduct that Appellees reasonably anticipated.         Here, the trial court

concluded that Appellees met their duty to Truax by complying with all

applicable building codes and zoning ordinances.         Trial Court Opinion,

10/3/12, at 8 (reasoning “[Appellees] have complied with all applicable

building codes and zoning ordinances, and to impose a duty upon property

owners above and beyond these standards would defeat the purpose of

having such standards in the first place[]”).   This is an incorrect statement

of law.   “Compliance with a law or administrative regulation relieves the

actor of negligence per se, but it does not establish as a matter of law that

due care was exercised.”     Berkebile v. Brantly Helicopter Corp., 281

A.2d 707, 710 (Pa. Super. 1971) (en banc); accord Mohler v. Jeke, 595

A.2d 1247, 1251 (Pa. Super. 1991).       While a defendant can introduce its

compliance with law or regulation as evidence of the exercise of due care,

“[c]ompliance with a legislative enactment or an administrative regulation

does not prevent a finding of negligence where a reasonable [person] would

take additional precautions.”   Restatement (Second) of Torts § 288C; see

also Berkebile, surpa (adopting Section 288C). Accordingly, in this case,

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Appellees’ maintenance of concrete wheel stops in accord with building

codes and zoning ordinances may be evidence of its exercise of due care,

but it is not conclusive that Appellees exercised due care as a matter of law.

      Moreover, Truax presented evidence sufficient to enable the jury to

conclude that a reasonable person would have taken additional precautions.

Specifically, Truax presented evidence that vehicle incursions onto the

sidewalk were foreseeable because the bump outs on the building appeared

to have sustained damage from vehicles striking them in the past. Truax’s

Answer to Wildwood’s Motion for Summary Judgment, 8/30/12, at Ex. E,

Summary of Traffic & Site Engineering Findings, at 5. The accident itself, in

which Roulhac drove her van over a wheel stop onto the sidewalk, shows

that the wheel stops were not sufficient to impede a vehicle’s progress.

Moreover, the other vertical bollards on Vitiello’s property established that

additional precautions were in place to protect a well casing, which it could

have employed to protect pedestrians from the foreseeable risk of vehicles

encroaching onto the sidewalk. Id. at 6; Id. at Ex. D, Affidavit of William

Breuer, at 1. By presenting such evidence, Truax created a question for the

jury of whether a reasonable person would take additional precautions

beyond complying with building codes and zoning ordinances.               See

Berkebile, supra; Restatement (Second) Torts § 288C.            Therefore, we

conclude that the trial court erred in deciding that Appellees fulfilled their

duty to Truax as a matter of law. See Berkebile, supra.


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      For these reasons, we conclude that the trial court erred in granting

summary judgment.      Consequently, we reverse the June 12, 2013 order

granting summary judgment and remand for further proceedings consistent

with this opinion.

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judges Bowes, Donohue, Shogan, Lazarus, Olson, Wecht, and Stabile

join the Opinion.

      Judge Jenkins files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2015




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