J-S20037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KATRINA SOOHEY,                                    IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

SHEETZ, INC.,

                            Appellee                   No. 1407 WDA 2015


                 Appeal from the Order Entered August 18, 2015
             in the Court of Common Pleas of Westmoreland County
                       Civil Division at No.: 1114 of 2015


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                      FILED MARCH 29, 2016

        Appellant, Katrina Soohey, appeals from the trial court’s order

sustaining the preliminary objections in the nature of a demurrer of

Appellee, Sheetz, Inc., and dismissing her complaint of negligence.         We

affirm.

        On March 4, 2015, Appellant filed a complaint, asserting a claim of

negligence against Appellee.         The complaint avers that on the morning of

May 1, 2013, she entered a Sheetz, Inc. store on her way to school. While

carrying her wallet in her hands, she brewed a cup of cappuccino at the self-

serve machine, placed a lid on the hot cappuccino, and then carried it to the

cooler where she obtained a bottle of Gatorade and a glass bottle of

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S20037-16



Starbucks coffee. She carried all of these items, including her wallet, in her

hands and arms. While reaching for a pack of pack of gum, the glass bottle

of Starbucks coffee and the hot cappuccino began to slide from her grasp.

The bottle of coffee crashed to the floor and the cappuccino spilled on her

left arm and breast causing scalding burning to her left breast.         (See

Complaint, 3/04/15, at 2-3). Appellant alleges that Appellee is liable for this

harm because of its negligence in not providing a shopping basket to carry

multiple items (including at or near boiling temperature cappuccino) or a

place to put them, making customers carry hot beverages through the store,

and failure to warn of the danger of carrying hot beverages through the

store.1 (See Complaint, at 3-6).

       On April 13, 2015, Appellee filed preliminary objections in the nature

of a demurrer to the complaint arguing that the trial court should dismiss it

because Appellant failed to “plead any legally cognizable duty owed to her

under Pennsylvania law.” (Preliminary Objections, 4/13/15, at 2). The trial

court heard oral argument on the objections on July 22, 2015. On August

18, 2015, it entered an order, which found that “in the exercise of due care,

[Appellant] could have avoided the harm that was caused by her carrying


____________________________________________


1
   Although Appellant states that she alleged fourteen “separate detailed
allegations of negligence,” a review of her complaint reveals fourteen often
repetitive underdeveloped statements, which, at best, allege the three
allegations of negligence stated above.      (Appellant’s Brief, at 1; see
Complaint, at 3-6).



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too many items at once, including her own wallet, and tucking a cup of hot

coffee between her forearm and chest.” (Order, 8/18/15, at 3). The count

concluded that it “[could not] find that [Appellant’s] harm was foreseeable,

or that [Appellee] had a duty to prevent said harm in this matter as the

alleged ‘condition’ was open and obvious to [Appellant] and all other

business invitees on the premise” and therefore sustained Appellee’s

objections and dismissed the complaint.          (Id. at 4).   This timely appeal

followed.2

       Appellant raises two questions on appeal:

       I.:   [Whether] the [trial] court improperly refuse[d] to
       acknowledge the specific allegations of negligence contained in
       Appellant’s complaint?

       II.: [Whether] the [trial] court err[ed] in concluding Appellant
       was required to plead a defect in the land that created the
       unreasonable risk of harm?

(Appellant’s Brief, at vi).

       Our standard of review of a trial court order sustaining preliminary

objections in the nature of a demurrer is well settled.

              A preliminary objection in the nature of a demurrer is
       properly granted where the contested pleading is legally
       insufficient. Preliminary objections in the nature of a demurrer
       require the court to resolve the issues solely on the basis of the
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2
  Appellant filed a timely notice of appeal on September 14, 2015. The trial
court did not direct Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On October 2, 2015, it
entered an order pursuant to Rule 1925(a), which adopted the reasoning in
its August 18, 2015 order. See Pa.R.A.P. 1925(a).



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     pleadings; no testimony or other evidence outside of the
     complaint may be considered to dispose of the legal issues
     presented by the demurrer. All material facts set forth in the
     pleading and all inferences reasonably deducible therefrom must
     be admitted as true.

           In determining whether the trial court properly sustained
     preliminary objections, the appellate court must examine the
     averments in the complaint, together with the documents and
     exhibits attached thereto, in order to evaluate the sufficiency of
     the facts averred. The impetus of our inquiry is to determine the
     legal sufficiency of the complaint and whether the pleading
     would permit recovery if ultimately proven. This Court will
     reverse the trial court’s decision regarding preliminary objections
     only where there has been an error of law or abuse of discretion.
     When sustaining the trial court’s ruling will result in the denial of
     claim or a dismissal of suit, preliminary objections will be
     sustained only where the case i[s] free and clear of doubt.

           Thus, the question presented by the demurrer is whether,
     on the facts averred, the law says with certainty that no
     recovery is possible. Where a doubt exists as to whether a
     demurrer should be sustained, this doubt should be resolved in
     favor of overruling it.

Barton v. Lowe’s Home Centers, Inc., 124 A.3d 349, 354 (Pa. Super.

2015) (citation omitted).

     In her first issue, Appellant claims that the trial court erred in refusing

to acknowledge the specific allegations of negligence in her complaint. (See

Appellant’s Brief, at 4-5). Appellant cites no relevant case law, but argues

that the trial court erred by not accepting her allegation that the

temperature of her cappuccino was in excess of industry standards and




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therefore, she adequately pleaded a claim of negligence.3        (See id.).   We

disagree.

       “To prevail in a negligence action, the plaintiff must show that the

defendant had a duty to conform to a certain standard of conduct, that the

defendant breached that duty, that such breach caused the injury in

question, and actual loss or damage.” Barton, supra at 359 (citation

omitted).

                A possessor of land is subject to liability for physical
          harm caused to his invitees by a condition on the land, if
          but only if, he:

          (a) knows or by the exercise of reasonable care would
          discover the condition, and should realize that it involves
          an unreasonable risk to such invitees, and

          (b) should expect that they will not discover or realize the
          danger, or will fail to protect themselves against it, and

          (c) fails to exercise reasonable care to protect them
          against the danger.

       It does not follow . . . however, that the proprietor of a store is
       an insurer of its patrons. Neither the mere existence of a
       harmful condition in a store nor the mere happening of an
       accident due to such a condition evidences a breach of the
       proprietor’s duty of care or raises a presumption of negligence.
____________________________________________


3
  We note that in support of this contention, Appellant cites to Restatement
Second of Torts § 286, which describes negligence per se liability based
upon violation of a statute. However, she never alleges that any statute or
regulation was violated to form a basis for negligence per se.          (See
Appellant’s Brief, at 4-5). Furthermore, although she cites two cases where
this Court affirmed admitting OSHA regulations as a standard of care, they
are not relevant here where she has not alleged an OSHA violation. (See id.
at 5; Complaint, at 3-6); see also Occupational Health and Safety Act of
1970 (OSHA), 29 U.S.C. §§ 651-78.



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Neve v. Insalaco’s, 771 A.2d 786, 790 (Pa. Super. 2001) (citations

omitted).

      Here, Appellant has not shown and we do not discern that the trial

court committed an error of law or abused its discretion in finding that the

complaint failed to plead that Appellee owed a duty to Appellant.          (See

Order, 8/18/15, at 3-4); Barton, supra at 354, 359. Upon review of the

pleadings and the trial court’s order, it is apparent that the trial court

accepted as true all material facts set forth in the complaint and all of the

reasonably deductible inferences from those facts. See id. at 354. We note

that while the trial court was bound to accept Appellant’s well pleaded

factual allegations, the court was not bound to accept her conclusion of law

that Appellee therefore had a duty to her and breached that duty. See id.

at 359; see also Whitmer v. Bell Telephone Co. of Pennsylvania, 522

A.2d 584, 586 n.3 (Pa. Super. 1987) (reasoning that while a trial court is

bound to accept as true allegation in complaint, it is not bound to accept

conclusion of law). Accordingly, Appellant’s first issue does not merit relief.

      In her second issue, Appellant claims “the [trial] [c]ourt has confused

immunity afforded governmental units under statutory law with the

[c]ommon [l]aw negligence” and argues that the trial court erred by

requiring her to plead a defect in the land in order to show that Appellee




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created an unreasonable risk of harm. (See Appellant’s Brief, at 6).4 We

disagree.

         Preliminarily, we note that Appellant has failed to develop this

argument. Her brief includes one paragraph of argument in support of this

contention, which lacks legal analysis and citation to relevant case law.

(See id.). Accordingly, she has waived this issue. See Pa.R.A.P. 2119(b).

Moreover, even if she had not waived this issue, her claim that the trial court

required her to plead a defect in the land itself in order to establish a claim

of negligence is belied by the record.

         Possessors of land are subject to liability for conditions that are known

to the possessor only where the possessor “should expect that [invitees] will

not discover or realize the danger, or will fail to protect themselves against

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4
    We note that Appellant has misquoted the trial court’s order, which reads:

               In the present matter, the harm Plaintiff suffered was not
         due to a condition on the land that created an unreasonable risk
         of harm, for example, a wet floor or an icy sidewalk, but was
         allegedly caused by the lack of the availability of a shopping
         basket in which Plaintiff could have placed her purchases to
         conveniently carry them.

(Order, 8/18/15, at 3). The paragraph continues:

         Plaintiff does not plead any known or obvious condition or defect
         with the land itself, other than the failure of Defendant to
         provide a shopping basket for customers who want to make
         multiple purchases. . . .

(Id.).




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it[.]”    Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983) (quoting

Restatement Second of Torts § 343(b)).       Additionally,

         The possessor of the land may reasonably assume that [an
         invitee] will protect himself by the exercise of ordinary care, or
         that he will voluntarily assume the risk of harm if he does not
         succeed in doing so.      Reasonable care on the part of the
         possessor therefore does not ordinarily require precautions, or
         even warning, against dangers which are known to the visitor, or
         so obvious to him that he may be expected to discover them.

Restatement Second of Torts § 343A, comment e.

         Here, the trial court cited Restatement Second of Torts § 343 to

describe the duty a landowner owes an invitee and explained that under

Carrender, the duty is only owed where the harm is foreseeable.               (See

Order, 8/18/15, at 2-3).      The trial court never sets forth any requirement

that a duty only arises from a defect in the land.           (See id. at 2-4).   In

considering Appellant’s argument, the trial court reasoned “a plaintiff does

not lose her own duty to act with ordinary care in conducting her business

when she sets foot on another’s land.” (Id. at 3). It then found

         the lack of shopping baskets in this case was a known and
         obvious aspect of the convenience store, and that, in the
         exercise of due care, [Appellant] could have avoided the harm
         that was caused by her carrying too many items at once,
         including her own wallet, and tucking a cup of hot coffee
         between her forearm and chest.

(Id.). Finally, the court concluded that it “[could not] find that [Appellant’s]

harm was foreseeable, or that [Appellee] had a duty to prevent said harm in

this matter as the alleged ‘condition’ was open and obvious to [Appellant]

and all other business invitees on the premise.” (Id. at 4).


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J-S20037-16



      We discern no error of law or abuse of discretion in the trial court’s

reasoning or conclusion that Appellant has failed to show that the harm was

foreseeable, or that Appellee had a duty to protect her from such harm.

See Barton, supra at 354; Neve, supra at 790. Accordingly, Appellant’s

second issue would not merit relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2016




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