J. A09008/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM N. WAITE,                       :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :          No. 1783 MDA 2015
                                        :
ARGENTO FAMILY PARTNERSHIP              :


            Appeal from the Order Entered September 29, 2015,
               in the Court of Common Pleas of York County
                  Civil Division at No. 2013-SU-002120-71


BEFORE: FORD ELLIOTT, P.J.E., JENKINS AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 20, 2016

     William N. Waite (“Waite”) appeals from the order of September 29,

2015, granting summary judgment for defendant/appellee, Argento Family

Partnership (“Argento”), in this slip and fall case. After careful review, we

reverse.

     In his complaint filed June 18, 2013, Waite alleged as follows:

           1.    Plaintiff, [Waite], is an adult individual residing
                 at 3630 Springetts Drive, York, Pennsylvania
                 17402.

           2.    The Defendant, Argento [], is a limited liability
                 partnership registered and operating under the
                 laws of the Commonwealth of Pennsylvania.

           3.    [Argento], at all times relevant hereto, was the
                 owner of and in complete custody and control
                 of the real property located at 2861 East
                 Prospect    Road,      York,    York     County,
                 Pennsylvania          17402         (hereinafter


* Retired Senior Judge assigned to the Superior Court.
J. A09008/16


                 “the Premises”), including but not limited to
                 the shopping center located thereon, its
                 parking lots, walkways, sidewalks, and
                 structures.

          4.     [Waite] was at all relevant times a business
                 invitee on the Premises.

          ....

          6.     On July 3, 2012, at approximately 2:00 p.m.,
                 [Waite] was at the shopping center located at
                 the Premises for the purposes of purchasing
                 goods from Steinmetz Coins & Currency, a
                 vendor whose place of business was located in
                 said shopping center.

          7.     [Waite] parked his vehicle in the parking lot of
                 the Premises, entered Steinmetz Coins &
                 Currency, made a purchase and left the
                 establishment.

          8.     Intending on returning to his vehicle, [Waite]
                 proceeded to walk on a concrete sidewalk in
                 front of and parallel to the storefronts and
                 adjacent to the parking lot of the Premises.

          9.     As he walked on said sidewalk toward his
                 vehicle,   [Waite]     encountered   a   single
                 undelineated riser step in the concrete
                 sidewalk measuring 5 ¾ inches in height.
                 Mr. Waite’s path of travel required him to step
                 down off of this step.

          10.    Just beyond the step were situated two
                 Adirondack-style chairs with their seats facing
                 north toward Prospect Street.

          11.    As [Waite] walked toward his vehicle, he
                 stepped across the single undelineated step
                 expecting a flush surface on the other side.
                 The unexpected drop in height caused [Waite]
                 to fall forward, striking his face, and in
                 particular, his left eye, on one of the


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                   Adirondack chairs positioned on the sidewalk
                   beyond the step, causing serious injury.

            12.    The single step at issue was a dangerous latent
                   condition in that this step across a sidewalk is
                   unusual and hazardous; the color of the
                   concrete on the top and bottom of the step
                   was the same in color and texture and
                   provided no indication of the change in
                   elevation; the edge of the step was parallel
                   with, and spaced similarly to, the joints in the
                   sidewalk, and it was not marked in any way to
                   make it conspicuous to pedestrians such as
                   [Waite].

Complaint, 6/18/13 at 1-3; docket #37.

       Waite alleged that Argento was negligent for failing to avoid using a

single step where possible; or alternatively, for failing to delineate the

hazardous step with an obvious visual cue such as a warning sign or a

contrast in surface colors.     (Id. at 4.)    Waite alleged that Argento’s

negligence was the proximate cause of his serious injuries including to his

left eye. (Id.) In addition to his own deposition testimony, Waite deposed

John   David   Hughes    (“Hughes”),    an   employee    of   a   tattoo   parlor,

“Tattooing by Mee,” located on the Premises. Hughes witnessed Waite’s fall

and offered assistance.       Waite also presented an expert report by

Lawrence C. Dinoff (“Dinoff”), an architect, who          concluded that the

unmarked single step where Waite fell was dangerous in a manner that

caused his fall.   (Dinoff’s report, 7/30/14 at 5.)     According to Dinoff, if

Argento chose not to remove or modify the single riser step, which is a

well-documented hazard to pedestrians, then it should have at least


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provided visual cues or warnings so that pedestrians such as Waite could

detect and avoid the hazardous condition. (Id. at 6.)

     Argento filed a motion for summary judgment on May 1, 2015, arguing

that Waite failed to establish a prima facie case of negligence.          On

September 29, 2015, the trial court granted the motion, finding that there

was no evidence that the step caused Waite’s fall and subsequent injuries.

(Opinion and Order, 9/29/15 at 3.) The trial court determined that Waite’s

testimony and that of the witness to the fall, Hughes, could not identify the

cause of Waite’s fall, only that he ended up on the ground.             (Id.)

Furthermore, the trial court found that even assuming Waite fell because of

the single step, it was an obvious feature of the property of which Waite

should have been aware. (Id.)

     Waite filed a timely notice of appeal on October 14, 2015.        Waite

complied with Pa.R.A.P. 1925(b), and on November 12, 2015, the trial court

filed a Rule 1925(a) opinion, relying on its prior Opinion and Order of

September 29, 2015, granting Argento’s motion for summary judgment.

     Waite has raised the following issues for this court’s review:

           1.    Did the Court fail to draw reasonable
                 inferences in favor of the non-moving party by
                 concluding that [Waite’s] inability after the fact
                 to remember where he was looking when he
                 fell necessarily means that he was not
                 exercising the care of a reasonable person to
                 avoid falling over the dangerous step?

           2.    Did the Court fail to draw reasonable
                 inferences in favor of the non-moving party


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                      from the circumstantial evidence including
                      witness testimony and the content and analysis
                      in [Waite’s] expert report?

Waite’s brief at 7.

            A trial court may dismiss an action pursuant to
            Rule 1035.2 of the Pennsylvania Rules of Civil
            Procedure governing summary judgment: After the
            relevant pleadings are closed, but within such time
            as not to unreasonably delay trial, any party may
            move for summary judgment in whole or in part as a
            matter of law (1) whenever there is no genuine issue
            of any material fact as to a necessary element of the
            cause of action or defense which could be
            established by additional discovery or expert report,
            or (2) if, after the completion of discovery relevant
            to the motion, including the production of expert
            reports, an adverse party who will bear the burden
            of proof at trial has failed to produce evidence of
            facts essential to the cause of action or defense
            which in a jury trial would require the issues to be
            submitted to a jury. Pa.R.C.P. 1035.2. A proper
            grant of summary judgment depends upon an
            evidentiary record that either (1) shows the material
            facts are undisputed or (2) contains insufficient
            evidence of facts to make out a prima facie cause
            of action or defense and, therefore, there is no issue
            to be submitted to the jury. Pa.R.C.P. 1035.2 Note.
            Where a motion for summary judgment is based
            upon insufficient evidence of facts, the adverse party
            must come forward with evidence essential to
            preserve the cause of action. Id. If the non-moving
            party fails to come forward with sufficient evidence
            to establish or contest a material issue to the case,
            the moving party is entitled to judgment as a matter
            of law.      The non-moving party must adduce
            sufficient evidence on an issue essential to its case
            and on which it bears the burden of proof such that a
            jury could return a verdict favorable to the non-
            moving party. As with all summary judgment cases,
            the court must examine the record in the light most
            favorable to the non-moving party and resolve all
            doubts against the moving party as to the existence


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            of a triable issue. Upon appellate review, we are not
            bound by the trial court’s conclusions of law, but
            may reach our own conclusions. In reviewing a
            grant of summary judgment, the appellate Court
            may disturb the trial court’s order only upon an error
            of law or an abuse of discretion. The scope of review
            is plenary and the appellate Court applies the same
            standard for summary judgment as the trial court.

Biernacki v. Presque Isle Condominiums Unit Owners Ass’n, Inc., 828

A.2d 1114, 1115-1116 (Pa.Super. 2003), quoting Grandelli v. Methodist

Hosp., 777 A.2d 1138, 1143-1144 (Pa.Super. 2001) (citation omitted).

            The trial court must accept as true all well-pleaded
            facts relevant to the issues in the non-moving party’s
            pleadings, and give to him the benefit of all
            reasonable inferences to be drawn therefrom. A
            grant of summary judgment is proper where the
            pleadings, depositions, answers to interrogatories,
            admissions of record and affidavits on file support
            the court’s conclusion no genuine issue of material
            fact exists and the moving party is entitled to
            judgment as a matter of law.

Goldberg v. Delta Tau Delta, 613 A.2d 1250, 1252 (Pa.Super. 1992),

appeal denied, 626 A.2d 1158 (Pa. 1993) (citations omitted).

     “The standard of care a possessor of land owes to one who enters

upon the land depends upon whether the latter is a trespasser, licensee, or

invitee.” Emge v. Hagosky, 712 A.2d 315, 317 (Pa.Super. 1998) (citation

omitted).   In the instant case, it is conceded that Waite was a business

invitee. “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



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those which might be discovered with reasonable care.” Id., citing Crotty

v. Reading Indus., 345 A.2d 259 (Pa.Super. 1975).

           Possessors of land owe a duty to protect invitees
           from foreseeable harm. With respect to conditions
           on the land which are known to or discoverable by
           the possessor, the possessor is subject to liability
           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 of harm to such
           invitee, 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.

Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983), quoting Restatement

(Second) of Torts § 343 (1965).

           The principle of law from which this rule of the
           Restatement was derived is that a possessor of land
           is not an insurer of the safety of those on his
           premises. As such, the mere existence of a harmful
           condition in a public place of business, or the mere
           happening of an accident due to such a condition is
           neither, in and of itself, evidence of a breach of the
           proprietor’s duty of care to his invitees, nor raises a
           presumption of negligence. Therefore, in order to
           impose liability on a possessor of land, the invitee
           must present other evidence which tends to prove
           that the possessor deviated in some particular from
           his duty of reasonable care under the existing
           circumstances. Logically, the invitees [sic] case-in-
           chief must consist of evidence which tends to prove
           either that the proprietor knew, or in the exercise of
           reasonable care ought to have known, of the
           existence of the harm-causing condition.

Moultrey v. Great A & P Tea Co., 422 A.2d 593, 595-596 (Pa.Super.

1980) (citations omitted).




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            “A possessor of land is not liable to his invitees for
            physical harm caused to them by any activity or
            condition on the land whose danger is known or
            obvious to them, unless the possessor should
            anticipate the harm despite such knowledge or
            obviousness.”     Restatement (Second) of Torts
            § 343(A), cited with approval in Carrender [], 469
            A.2d [at] 123 []. See also Hughes v. Seven
            Springs Farm, Inc., [] 762 A.2d 339 ([Pa.] 2000)
            (a possessor of land owes an invitee no duty to
            protect against obvious and avoidable dangers).

Cresswell v. End, 831 A.2d 673, 678 n.3 (Pa.Super. 2003).

      According to the trial court, Waite failed to establish that the step

caused his fall.   Examining all the evidence in the light most favorable to

Waite, as the non-moving party, together with all reasonable inferences

deducible therefrom, we must disagree. Waite acknowledged that he did not

know why he fell.       (Waite deposition, 11/19/13 at 19.)          He did not

remember seeing a step. (Id. at 20.) He remembers falling face-first and

being helped up by Hughes.       (Id. at 19, 42.)       However, he did not know

whether he tripped or slipped on something. (Id. at 42.) He was not aware

of the existence of the step prior to his fall. (Id.)

      Hughes testified that he was looking out the front window of the tattoo

parlor when he saw Waite fall. (Hughes deposition, 11/19/13 at 23-24.) He

testified that Waite fell face-first, with his feet flying up in the air. (Id. at

46.) Waite’s glasses were lying on the ground and there was a puddle of

blood, about ten inches in diameter. (Id. at 24-25.) Hughes helped Waite

into the tattoo parlor, and another employee called an ambulance. (Id. at



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24, 28-29.) Hughes assumed that Waite fell because of the step. (Id. at

50.)

       We determine that this evidence was sufficient for a jury to reasonably

infer that Waite fell because of the single step in front of the tattoo parlor.

Waite fell face-first, in violent fashion, in that immediate area.     In fact,

Hughes testified that at first he thought it was “just somebody clowning

around.” (Id. at 46.) When Waite fell, his feet were about three feet up in

the air.   (Id. at 49.)   It would be reasonable for a jury to infer that the

single step was the cause of Waite’s fall.

       The trial court states that, “In this case, the expert, who did not

witness the fall, has opined that [Waite] may have tripped or fell off the

step. Those are two different but equal possibilities and the preponderance

of the evidence burden can therefore not be met.”        (Opinion and Order,

9/29/15 at 3.) The trial court takes Mr. Dinoff’s statement out of context.

Mr. Dinoff’s expert report reads, in relevant part,

             Slipping typically results in forward motion of the
             slipping foot and rearward rotation of the upper
             body. Waite’s forward fall demonstrates he did not
             slip. His fall is consistent with his having either
             tripped or stepped over an unexpected drop in level.
             Except for the single step down, the sidewalk area
             on which Waite fell was planar and stable and
             effectively level. There were no other conditions
             likely to have caused a trip, and it is reasonably
             certain that the step was the cause of his fall.

                   Waite fell because there was an unmarked
             single riser step down in the sidewalk along the front
             of the building. An unmarked step in a sidewalk is


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            an unusual condition. Single steps that lack features
            to make them conspicuous have been identified as
            dangerous and as causes of pedestrian falls.

                  The failures of the property owner to             have
            constructed a sidewalk without a step, to               have
            eliminated the step, or at a minimum to                 have
            provided effective warnings to make the                  step
            conspicuous made the sidewalk dangerous                 in a
            manner that caused Waite to fall.

Dinoff’s report, 7/30/14 at 2-3.

      Mr.   Dinoff’s   report   did    not   set   out   “two   different   but   equal

possibilities.” Whether Waite tripped or fell off the step, Mr. Dinoff’s report

is clear that in his expert opinion, the single riser step caused Waite to fall.

Whether he tripped or stepped over it is a meaningless distinction. The crux

of the report is that the unmarked single riser step was the cause of Waite’s

fall. In addition, Mr. Dinoff’s conclusion is corroborated by the eyewitness

testimony of Hughes.

      Relying on Rogers v. Max Azen, Inc., 16 A.2d 529 (Pa. 1940), the

trial court concluded that, even if the step did in fact cause Waite to fall, the

step was an open and obvious feature of the property of which Waite should

have reasonably been aware.           (Opinion and Order, 9/29/15 at 2-3.)         The

trial court found that Waite was not exercising reasonable care to avoid

falling on the step. (Id.) The trial court’s reliance on Rogers is misplaced.

      In Rogers, the plaintiff was a customer in a Pittsburgh fur store.

Rogers, 16 A.2d at 530.         She was proceeding up a flight of stairs to the

second floor of the establishment, when she tripped and fell on the bottom


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of an ornamental protective banister. Id. As the Rogers court described

the incident,

            As [the plaintiff] turned right at the head of the
            stairway, which entered the second floor sales room
            through a rectangular opening in the floor, guarded
            on three sides by an ornamental protective banister,
            she stumbled or tripped, as she testified, over the
            end of a half-inch high base or shoe by means of
            which the banister was anchored to the floor and
            upon which it rested.

Id. The plaintiff prevailed at trial and was awarded damages of $3,250. Id.

The defendant appealed, arguing that the plaintiff failed to prove negligence,

and also that she was contributorily negligent. Id.

      The Pennsylvania Supreme Court agreed, holding that by her own

testimony, the plaintiff had failed to use ordinary care for her own safety:

            Should it be conceded, however, that the
            construction of the railing was such that it could with
            propriety be regarded as involving an unreasonable
            risk of harm to appellant’s invitees, we would
            nevertheless be required to hold that no issue for the
            jury was presented, for the reason that appellee’s
            own testimony plainly shows that negligence on her
            part contributed to such an extent in bringing about
            the injury of which she complains as to bar recovery
            by her therefor as a matter of law.

Id. at 531. At trial, the plaintiff conceded that she was not looking where

she was going and that the base of the banister railing was plainly visible.

Id. The Rogers court held that this testimony barred recovery:

            Disclosing, as it does, thoughtless inattention to her
            surroundings and a complete failure to be duly
            observant of where she was stepping, this testimony
            leaves no room for speculation as to the sole cause


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             of appellee’s injuries. It brings the case within the
             rule that where one is injured as the result of a
             failure on his part to observe and avoid an obvious
             condition which ordinary care for his own safety
             would have disclosed, he will not be heard to
             complain.

Id. (citations omitted).

        We find Rogers to be readily distinguishable. In Rogers, the plaintiff

conceded that she was not paying attention to where she was going and that

the base of the banister railing was plainly visible. Instantly, Waite testified

that he could not remember where he was looking immediately before his

fall.   (Waite deposition, 11/19/13 at 20.)     Furthermore, Waite presented

photographs and expert testimony that the step was not plainly visible; to

the contrary, Mr. Dinoff opined that single riser steps are inherently

dangerous and, at a minimum, should be well marked with obvious visual

cues such as warning signs or a contrast in surface colors. With regard to

the step at issue here, Mr. Dinoff found that, “The sidewalks on both sides of

the step were similar light-colored concrete.       There were no handrails,

painted lines, signs or markings to delineate the step.”        (Dinoff report,

7/30/14 at 2.) By contrast, in Rogers, the plaintiff encountered a protective

railing which, it was reasonable to assume, was anchored to the floor at

some point. Here, there was nothing to alert pedestrians to the single riser

step.

        The trial court found that the photographs of the step show that it was

an obvious feature of the property.      (Opinion and Order, 9/29/15 at 3.)


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After reviewing the same color photographs in the certified record, this court

must respectfully disagree with the trial court’s conclusion.1     Rather, the

photographs support Mr. Dinoff’s opinion that the single riser step was

inconspicuous and unmarked and presented a hazardous condition.

      We also note, as does Waite in his brief on appeal, that when Rogers

was decided in 1940, the plaintiff’s contributory negligence barred any

recovery. The doctrine of contributory negligence protected defendants from

tort claims if the plaintiff was found to be negligent to any degree. In 1976,

Pennsylvania adopted the Comparative Negligence Act, under which a

plaintiff guilty of contributory negligence is not barred from recovery so long

as his negligence does not exceed that of the defendants.      See Marks v.

Redner’s Warehouse Markets,              A.3d       , 2016 WL 639043 at *3

(Pa.Super. February 17, 2016) (citation omitted).

      For these reasons, we determine the trial court erred in granting

summary judgment for Argento.       Waite presented sufficient circumstantial

evidence of negligence to present a jury question.

      Order reversed. Case remanded. Jurisdiction relinquished.




1
 We note that on summary judgment our scope of review is plenary and we
are not bound by the trial court’s legal conclusions, including that the step


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2016




was an open and obvious condition of the property of which an invitee
should have been aware. Biernacki, supra.


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