J-A33033-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

HELEN DAVIS, M.D.               :              IN THE SUPERIOR COURT OF
APPELLANT                       :                    PENNSYLVANIA
                                :
       v.                       :
                                :
NVR, INC.; RYAN HOMES, MERITAGE :
GROUP, L.P.; STROSCHEIN ROAD    :
ASSOCIATES, L.P.; R.F. MITALL & :
ASSOCIATES; RONALD HARVEY;      :
RONALD HARVEY EXCAVATING AND    :
SNOWPLOWING; F&F CONSULTANTS, :
INC.; AND LANDSCAPES AND MORE, :
INC.                            :
                                :               No. 492 WDA 2016


                Appeal from the Order November 5, 2014
              in the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): No. GD-12-17475
                                            No. GD-13-001235

BEFORE:     LAZARUS, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 31, 2017

      Helen Davis, M.D. (Plaintiff) appeals from the November 5, 2014

orders that granted summary judgment in favor of NVR, Inc.; Meritage

Group, LP; R.F. Mittall & Associates; and Stroschein Road Associates, L.P.

(collectively Defendants) in this slip and fall action.1 We affirm.

      The trial court summarized the case as follows.

            Plaintiff alleges in her complaint that she fell and was
      injured when she slipped after stepping onto ice on a sidewalk as
      she exited her parked car [on January 17, 2011]. The fall


1
 The orders became final and appealable when the action was discontinued
as to all remaining defendants on March 21, 2016.

*Retired Senior Judge assigned to the Superior Court.
J-A33033-16


      occurred on a common area sidewalk owned by the Lexington
      Hills Homeowners Association.        The section of the sidewalk
      where Plaintiff fell passed through a wetland area. Plaintiff
      alleges that for several years prior to the Plaintiff’s fall that area
      of the sidewalk would, periodically, be covered with water, and
      of course, during the winter months, the water would freeze.
      Plaintiff alleges that Defendants, who were granted summary
      judgment, contributed to creating this condition. Plaintiff alleges
      that Mitall designed the placement of the sidewalk in such a way
      that the sidewalk ran adjacent to and passed through the
      wetland area, Meritage had the right to approve or disapprove
      the plans submitted by Mitall, and NVR actually installed the
      sidewalk in the common area. Each of Defendants moved for
      summary judgment based principally upon the fact that none of
      them w[as] the owner or possessor of the land on which Plaintiff
      was injured at the time of her fall.

Trial Court Opinion, 5/4/2016, at 1-2 (unnecessary capitalization and articles

omitted).

      By orders dated November 5, 2014, the trial court granted Defendants’

motions based upon this Court’s decision in Longwell v. Giordano, 57 A.3d

163, 164 (Pa. Super. 2012), appeal denied, 79 A.3d 1099 (Pa. 2013)

(affirming grant of summary judgment in favor of contractor pursuant to

Restatement (Second) of Torts § 385 where the evidence indicated that the

contractor did not make the site of the fall “dangerous in a way that the

[plaintiffs] were unlikely to discover”).

      Plaintiff timely filed a notice of appeal, and both she and the trial court

complied with Pa.R.A.P. 1925. Plaintiff presents the following questions for

this Court’s consideration.

           1.   Whether this [C]ourt’s decision in Longwell v.
      Giordano, holding that Restatement (Second) of Torts § 385


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      applies only to latent dangerous conditions on land, should be
      overturned.

            2.   Whether the trial court erred in failing to apply
      Restatement (Second) of Torts § 398, and therefore improperly
      granted summary judgment to those who designed and planned
      a dangerous condition on land which caused injury to a third
      person.

Plaintiff’s Brief at 6.

      We begin with our standard of review.

      In reviewing an order granting summary judgment, our scope of
      review is plenary, and our standard of review is the same as that
      applied by the trial court. Our Supreme Court has stated the
      applicable standard of review as follows: [A]n appellate court
      may reverse the entry of a summary judgment only where it
      finds that the lower court erred in concluding that the matter
      presented no genuine issue as to any material fact and that it is
      clear that the moving party was entitled to a judgment as a
      matter of law. In making this assessment, we view the record in
      the light most favorable to the nonmoving party, and all doubts
      as to the existence of a genuine issue of material fact must be
      resolved against the moving party. As our inquiry involves
      solely questions of law, our review is de novo.

      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.

Gerber v. Piergrossi, 142 A.3d 854, 858 (Pa. Super. 2016) (quoting

Harris v. NGK North American, Inc., 19 A.3d 1053, 1063 (Pa. Super.

2011)).




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        Next, we consider the applicable law, namely, this Court’s decision in

Longwell. In that case, Longwell was injured when he fell off of a seven- or

eight-inch drop at the edge of a paved driveway in the apartment complex in

which he resided. Longwell knew that there was a drop, but was unable to

see it on the night in question due to poor lighting conditions. Longwell and

his wife sued the Giordanos, who were the landlords, as well as C.J. Long,

the contractor the Giordanos had hired to pave the driveway. The trial court

granted motions for summary judgment filed by the Giordanos and C.J.

Long.    This Court reversed as to the Giordanos, holding that there were

material issues of fact regarding the landlords’ liability. However, this Court

affirmed as to the contractor based upon section 385 of the Restatement

(Second) of Torts, explaining as follows.

             One who on behalf of the possessor of land erects a
             structure or creates any other condition thereon is
             subject to liability to others upon or outside of the
             land for physical harm caused to them by the
             dangerous character of the structure or condition
             after his work has been accepted by the possessor,
             under the same rules as those determining the
             liability of one who as manufacturer or independent
             contractor makes a chattel for the use of others.

        Gresik v. PA Partners, L.P., 989 A.2d 344, 348 (Pa. Super.
        2009), affirmed on other grounds, Gresik v. PA Partners, L.P.,
        33 A.3d 594 (Pa. 2011) (quoting Restatement (Second) of Torts
        § 385).

             As the liability of a servant or an independent
             contractor who erects a structure upon land or
             otherwise changes its physical condition is
             determined by the same rules as those which


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           determine the liability of a manufacturer of a chattel,
           it follows that such a servant or contractor who turns
           over the land with knowledge that his work has
           made it dangerous in a manner unlikely to be
           discovered by the possessor is subject to liability
           both to the possessor, and to those who come upon
           the land with the consent of the possessor or who
           are likely to be in its vicinity.

     Id. at 350 (quoting Restatement (Second) of Torts § 385 cmt.
     c.) (emphasis added). In Gresik, this Court analyzed section
     385 of the Restatement (Second) of Torts in the context of a
     tragic accident at a steel mill. This Court applied comment c. to
     section 385, and expressly declined to follow the Pennsylvania
     Commonwealth Court’s reasoning in Gilbert v. Consolidated
     Rail Corp., [623 A.2d 873, 875 (Pa. Cmwlth. 1993)], which held
     that “comment (c) provides for potential liability to third persons
     and the possessor of the property when the condition may be
     considered a latent defect.” Instead, this Court embraced the
     interpretation urged by the dissent in Gilbert, and held that “as
     a precondition for establishing liability under Section 385, a
     plaintiff must show that the danger was one unlikely to be
     discovered by the possessor or those who come upon the land
     with the possessor’s consent.” Our Supreme Court affirmed this
     decision on other grounds, and never reached the question of
     how to interpret the relevant language of comment c. to section
     385.

           Applying our reasoning in Gresik to the instant case, it
     cannot be said that C.J. Long made the area of the drop-off
     dangerous in a way that the Giordanos were unlikely to discover.
     The Longwells have made no argument to this effect, and
     indeed, point out that Mr. Giordano was apparently aware that
     there was a drop-off, both before and after C.J. Long was hired
     to add an additional coating of blacktop. Accordingly, we find
     that the trial court did not err in holding that C.J. Long owed no
     duty to the Longwells and affirm the order of the trial court
     granting summary judgment in favor of C.J. Long.

Longwell, 57 A.3d at170–71 (some citations omitted).




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         Applying this law to the facts at hand, the trial court concluded that

Defendants were not liable to Plaintiff:

               In this case, there is no disagreement that Plaintiff has
         acknowledged on numerous occasions that she was aware of the
         water flowing onto the sidewalk and, in fact, notified the
         Lexington Hills Homeowners Association about the allegedly
         dangerous condition.

              For this reason, Section 385 of the Restatement of Torts
         Second does not impose liability upon Defendants….

Trial Court Opinion, 5/4/2016, at 4 (some articles omitted).

         In arguing that the trial court’s decision should be reversed, Plaintiff

first contends that we should overturn the Longwell decision. This we could

not do even if we agreed with Plaintiff that Longwell was wrongly decided.2

See, e.g., Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013)

(“This panel is not empowered to overrule another panel of the Superior

Court.”).    Accordingly, Plaintiff’s first issue merits no relief from this Court.

         Plaintiff’s remaining argument is that summary judgment should not

have been granted to Mitall and Meritage. Because those entities designed

and planned the dangerous condition, Plaintiff maintains that they are

subject to liability based upon section 398 of the Restatement (Second) of

Torts.    Plaintiff’s Brief at 27-28. That section provides as follows:

         A manufacturer of a chattel made under a plan or design which
         makes it dangerous for the uses for which it is manufactured is
         subject to liability to others whom he should expect to use the


2
  The author of this memorandum, also the author of Longwell, does not
agree with Plaintiff that Longwell was wrongly decided.

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J-A33033-16


      chattel or to be endangered by its probable use for physical
      harm caused by his failure to exercise reasonable care in the
      adoption of a safe plan or design.

Restatement (Second) of Torts § 398. A comment to the section provides:

“If the dangerous character of the plan or design is known to the user of the

chattel, he may be in contributory fault if the risk involved in using it is

unreasonably great or if he fails to take those special precautions which the

known dangerous character of the chattel requires.” Id. at cmt. b.

      Plaintiff argues that because liability may be imposed upon a planner

or designer under section 398 even if the user is aware of the danger

created by it, her awareness of the propensity of the walkway to gather

water and become icy does not preclude her from recovering from

designers/planners Mitall and Meritage. Plaintiff’s Brief at 28. We disagree.

      As discussed in Longwell, a contractor is not held liable for a

condition it caused after the possessor of the land accepts the work unless

the contractor knew “that his work has made it dangerous in a manner

unlikely to be discovered by the possessor.”       Restatement (Second) of

Torts § 385 cmt. c. (emphasis added). In such cases, the contractor who is

no longer in possession of the property is nonetheless liable both to the

possessor and to people on the land with the possessor’s consent for harm

caused by the latent defect. Id.

      Here, there was no question of material fact precluding entry of

judgment as a matter of law: the condition of water covering the sidewalk in


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the wetlands area was one likely to be discovered by the possessor and,

indeed, was known by the possessor long before Plaintiff’s injury. 3    See,

e.g., Meritage Group’s Motion for Summary Judgment at Exhibit G

(indicating in an email to Plaintiff in 2010, that Elite Management was aware

of the water seepage problem and had tried three times to remedy it).

Under such circumstances, section 385 eliminated the claims against the

out-of-possession contractors, and section 398 never came into play.

     Accordingly, the trial court did not err in granting Defendants’ motions

for summary judgment.

     Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/31/2017




3
   The docket of GD-13-001235 reveals that Plaintiff’s case against the
Lexington Hills Homeowner’s Association and Elite Management Services
Group, the company hired by the Association to maintain the common areas
of the plan, was settled and discontinued by praecipe filed on March 7, 2016.

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