J-A27033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    LORI ANN SIMMONS AND JOHN                  :   IN THE SUPERIOR COURT OF
    SIMMONS                                    :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 1437 EDA 2018
    CROTHALL HEALTHCARE, INC                   :

               Appeal from the Judgment Entered June 12, 2018
     In the Court of Common Pleas of Lehigh County Civil Division at No(s):
                              No. 2016-C-0183


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED APRIL 09, 2019

       Lori Ann and John Simmons appeal from the judgment entered against

them in their negligence action against appellee Crothall Healthcare, Inc.

(“Crothall”).1 The Simmons argue that the trial court erred in granting

Crothall’s motion for compulsory nonsuit. We affirm.

       The Simmons filed a complaint alleging that Ms. Simmons slipped and

fell on ice in a parking lot of the Lehigh Valley Hospital and fractured her ankle.

They averred that Crothall was the entity responsible for removing snow and

____________________________________________


1 The Simmons prematurely appealed from the April 16, 2018 order of the
trial court denying the Simmons’ motion for post-trial relief. We issued a per
curiam order directing the Simmons to praecipe the prothonotary of the trial
court to enter judgment on the docket. The trial court entered judgment for
Crothall on June 12, 2018. We thus treat the appeal as from the entry of
judgment, and have amended the caption accordingly. See Pa.R.A.P.
905(a)(5); Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 524 n.1
(Pa.Super. 2006).
J-A27033-18



ice from the hospital’s parking lots, and that its negligence in relation to the

removal of snow and ice was the cause of Ms. Simmons’ injury. The Simmons

also set forth a claim for Mr. Simmons’ loss of consortium.

      Prior to trial, Crothall filed a motion in limine to preclude the testimony

of the Simmons’ expert meteorologist, Thomas Else, because he was “not

qualified to opine . . . regarding the industry standards and customs in the

field of snow/ice removal and management.” Mot., 10/23/17, at ¶ 19. The

court deferred ruling on the motion until the time of trial. Its order doing so

stated, “if Else is not able to demonstrate he has a level of knowledge of the

industry standard of care for professional snow removal and mitigation of

injury beyond that possessed by the average person, he may be precluded

from offering any expert opinion testimony.” Order, 11/3/17, at 2 n.1. The

order also warned that “[w]ithout any expert opinion testimony on the

relevant standard of care for the snow removal, [the Simmons] may not be

able to establish [the] duty of care owed to [the Simmons] by [Crothall].” Id.

      At trial, Ms. Simmons testified that she was cardiac stenographer who

worked at the hospital’s Muhlenberg location. She worked an eight-hour shift

on February 17, 2017, and left the premises at 3:00 p.m. At around 2:00 a.m.

that night, the morning of February 18, she returned to the hospital. She did

not notice any snow or ice in the parking lot at that time, except for a pile of

snow between her car and the car parked in front of hers.

      She left work again at 3:00 a.m. Snow had started to fall ten minutes

earlier, and there was a “dusting” of snow on the ground. N.T. (Lori Ann

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Simmons), 11/28/17, at 12, 45-46. She observed a co-worker slip on the

“concrete walkway” to the parking lot, roughly ten feet from the hospital

entrance. Id. at 73-74. Once in the parking lot and approaching her car, Ms.

Simmons also slipped and fell, injuring her ankle. Ms. Simmons testified she

“slid and hit a car, a parked car in front of [her], and fell.” Id. at 13. She was

two or three feet away from her own car at the time she fell. Ms. Simmons

testified she slipped on black ice2 that was covered by the snow. She did not

notice any ice in the parking lot until after she fell and looked underneath her

feet. She did not see any salt on the ice. The Simmons also showed the jury

a surveillance video of the parking lot, depicting Ms. Simmons slip and fall.

       The Simmons also presented the testimony of Michael Simmers, an

employee of Crothall. His position for Crothall             entails “running the

Housekeeping       Department      and    Grounds   Departments.”   N.T.   (Michael

Simmers), 11/28/17, at 3. Simmers acknowledged that Crothall is the sole

entity responsible for the removal of snow and ice from the hospital’s parking

lot and is in total control of that obligation, pursuant to a contract between




____________________________________________


2 Black ice is thin, transparent ice occurring on asphalt. See Morin v.
Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1087 n.1 (Pa.Super. 1997);
Tucker v. Bensalem Twp. Sch. Dist., 987 A.2d 198, 201 (Pa.Cmwlth.
2009).




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the hospital and Crothall.3 No written contract was introduced at trial, and

there was no testimony regarding specific contract terms.

        Simmers testified that the hospital operates 24 hours a day. When there

is inclement weather, Simmers inspects the parking lot around 5:00 a.m., and

then again periodically throughout the day. He stated he would have made his

final inspection before the accident at approximately 4:00 p.m. on February

17, before leaving for the day.

        Simmers stated that in the event of a snowfall, the hospital security

team would typically contact Crothall, and Crothall would contact Rogerio

____________________________________________


3   Simmers testified as follows:

        [The Simmons’ attorney:] So, generally, Crothall is responsible for
        ice removal at the Muhlenberg Lehigh Valley Hospital; correct?

        [Simmers:] Yes.

        [The Simmons’ attorney:] Okay. And that would include all the
        parking lots as well; correct?

        [Simmers:] Yes.

        [The Simmons’ attorney:] And that’s pursuant to a contract
        []between Lehigh Valley Hospital and Crothall Healthcare, Inc.;
        correct?

        [Simmers:] Yes.

        [The Simmons’ attorney:] So, Lehigh Valley Hospital does not
        perform any of its own ice removal; correct?

        [Simmers:] We do [it] for them, yes.

N.T. (Simmers) at 6-7.




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Trucking (“Rogerio”), with whom Crothall sub-contracted the plowing of the

parking lot. According to Crothall’s agreement with Rogerio, Rogerio had 90

minutes to respond to a call for snow removal.4 Simmers confirmed that

Rogerio has a contract with Crothall, not with the hospital, and that Rogerio

“has no independent responsibility to show up and perform ice removal at the

hospital.” Id. at 8-9.

        Simmers testified that Rogerio does not remove snow between or close

to parked cars, for fear of causing damage, and stated that Rogerio removes

snow up to six inches from parked cars. Simmers testified that he understands

that when snow “is left piled in a parking lot . . . and the temperature rises,

[it] would melt into water and then at night when the temperature drops would

freeze into ice.” Id. at 15. He also confirmed he understands that water from

melted snow would “leach into other areas of the parking lot” and freeze, and

stated, “That’s why we salt.” Id. He testified that if he saw that snow had

melted and refrozen into ice, he would call Rogerio “to remediate.” Id. at 15,

17. The Simmons did not question Simmers regarding Rogerio’s salting

procedures. However, Simmers testified that after a storm, Crothall would
____________________________________________


4   Regarding the agreement between Crothall and Rogerio, Simmers testified:

        When it snows – there’s a couple different ways we’re notified,
        one of them being if a snowstorm begins that wasn’t expected,
        the hospital security calls, we call them. They have, like, 90
        minutes to be – to make it to campus, and then they do snow
        removal for us when the storm’s over. Then, we inspect and
        decide where we’re going to go from there.

N.T. (Simmers) at 8.

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“have [Rogerio] trucks on site most nights treating and removing snow. I think

-- through the records, I was able to look at -- we did have trucks [the]

evening [of the 17th]. In fact, I think we had them on site every day from the

12th on.” Id. at 17.

      The Simmons introduced the testimony of Else, whom they offered as

“an expert in the field of meteorology and snow and ice removal.” N.T.

(Thomas Else), 11/29/17, at 6. Crothall objected to Else’s qualifications as an

expert in snow and ice removal. The Simmons clarified that they would present

Else as an expert in “snow and ice” “[a]s part of meteorology,” and Crothall

agreed to that limitation.

      Else then testified about weather conditions around the time of Ms.

Simmons’ fall. He said that snowstorms had left untreated ground in the area

of the hospital covered with 22 inches of snow. While temperatures remained

below freezing on the day in question, the day was sunny, and the hospital’s

parking lot was completely exposed to the sun. Else stated that sunlight

“would have resulted in runoff [snowmelt] water generated in the parking lot,”

and, after sunset around 5:30 p.m., “[a]ny residual [snowmelt] water and

leftover slush, which was not properly treated with a deicer, quickly refroze

into solid ice.” Id. at 16. Else also testified that the National Weather Service

had issued a winter weather advisory on the day in question, as snow was

expected to begin again at 3:00 a.m. on the morning of February 18, i.e., the

time of Ms. Simmons’ fall. Else confirmed that dry, powdery snow did begin

to fall around that time, which immediately accumulated on the ground. He

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J-A27033-18



characterized it as a “dusting” less than 0.10 inches deep, and opined that the

new snowfall would have covered any residual ice, and that Ms. Simmons

would have slipped on the ice, and not the powdery snow.

      The Simmons also asked Else to testify about the information he would

provide to snow removal companies regarding weather conditions. Crothall

objected. The court overruled the objection, but clarified that Else was not to

testify regarding snow removal procedures. The Simmons asked Else whether

ice would have been present throughout the parking lot, and the court

sustained Crothall’s objection to that question.

      At the close of the Simmons’ evidence, Crothall moved for a compulsory

nonsuit. As relevant here, Crothall argued that there was no evidence that its

snow removal procedures fell below the appropriate standard of care. Crothall

explained that there was no evidence of the standard of care, as the Simmons

did not introduce either the terms of the contract between the hospital and

Crothall or expert testimony regarding professional standards within the snow

removal industry. Thus, there was no basis on which the jury could conclude

that Crothall’s snow removal procedures were inadequate.

      The court granted the compulsory nonsuit. The court found “that the

evidence lacks any demonstration or testimony regarding the duty that was

owed to [Ms.] Simmons by [Crothall] to take measures to avoid the slippery

condition from existing at this time,” and that there was no evidence of “a

professional standard within the business of snow removal . . . to apply agents




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J-A27033-18



which would prevent the accumulation of ice either before or after the snowfall

began based upon the weather conditions[.]” N.T. (Motion), 11/29/17, at 20.

       The Simmons filed a motion for post-trial relief, arguing that the court

erred in finding that they had not presented evidence that Crothall had a duty

to remove the snow and ice at issue. The court denied relief. The court

authored a contemporaneous opinion in which it reviewed both Sections 323

and 324A5 of Restatement (Second) of Torts, and concluded that the Simmons

failed to present sufficient evidence to establish a legal duty. The court also

concluded that there was no testimony “that the duty entailed an obligation

to undertake any specific remedial acts,” such as treating refrozen ice “within

a designated timeframe after a nighttime refreeze,” removing the ice and

snow from closer proximity to the parked vehicles, or inspecting the lot after

sunset. Am. Mem. Op., 4/16/18, at 12-13. The court pointed out that the

contract was not introduced as evidence of specific snow removal or inspection

requirements.

       The Simmons appealed, and raise the following issues:

       1. Did the [Simmons] establish [prima facie] evidence that
       [Crothall] owed a duty to the [Simmons]?

       2. Did [Crothall] have notice of the [d]angerous [c]ondition?

       3. W[ere the Simmons] required to present expert witness
       testimony in order to establish [Crothall’s] standard of care?
____________________________________________


5 As discussed further below, Section 324 imposes “liability to third person[s]
for negligent performance of undertaking,” and is the corollary to Section 323
applicable when the harm is suffered by a third person. Restatement (Second)
of Torts § 324A (1965), comment a.

                                           -8-
J-A27033-18


      4. Was [Crothall’s] Motion for Compulsory Nonsuit properly
      granted?

The Simmons’ Br. at 4 (answers below omitted).

      We review the grant of a motion for nonsuit for an abuse of discretion

or an error of law. Harvey, 901 A.2d at 526. “A nonsuit is proper only if the

jury, viewing the evidence and all reasonable inferences arising from it in the

light most favorable to the plaintiff, could not reasonably conclude that the

elements of the cause of action had been established.” Id. (quoting Brinich

v. Jencka, 757 A.2d 388, 402 (Pa.Super. 2000)).

      In their first issue, the Simmons argue that they set forth prima facie

evidence of Crothall’s duty to the Simmons to remove snow and ice in the

parking lot. The Simmons point to Simmers’ testimony admitting that Crothall

was responsible for any and all removal of ice on the property, pursuant to a

contract; that the hospital was open 24 hours a day; and that it was Simmers’

responsibility perform inspections to look for ice. The Simmons’ Br. at 13-15,

17-18.

      “To demonstrate negligence, a plaintiff must establish that the

defendant owed a duty of care to the plaintiff, that duty was breached, the

breach resulted in the plaintiff’s injury, and the plaintiff suffered an actual loss

or damages.” Kinney-Lindstrom v. Med. Care Availability & Reduction

of Error Fund, 73 A.3d 543, 563 n.17 (Pa. 2013). “The primary element in

any negligence cause of action is that the defendant owes a duty of care to

the plaintiff.” Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866



                                       -9-
J-A27033-18



A.2d 270, 280 (Pa. 2005) (quoting Althaus ex rel. Althaus v. Cohen, 756

A.2d 1166, 1168 (Pa. 2000)). Duty is “an obligation, to which the law will give

recognition and effect, to conform to a particular standard of conduct toward

another.” Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1222

(Pa. 2002). Whether a duty exists in any given set of circumstances is a

question of law. Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214,

222 (Pa. 2018).

       A landowner owes a duty to exercise reasonable care to keep its land

safe for business invitees,6 provided certain circumstances are met, such as

that the unreasonable risk of danger is foreseeable by the landowner, and the

risk is not the sort obvious to an invitee. Restatement (Second) of Torts §

343; Farabaugh v. Pa. Tpk. Comm’n, 911 A.2d 1264, 1272 (Pa. 2006).

       Section 324A of Restatement (Second) of Torts states that liability can

arise from the negligent performance of an undertaking:

       One who undertakes, gratuitously or for consideration, to render
       services to another which he should recognize as necessary for
       the protection of a third person or his things, is subject to liability
       to the third person for physical harm resulting from his failure to
       exercise reasonable care to protect his undertaking, if

       (a) his failure to exercise reasonable care increases the risk of
       such harm, or

       (b) he has undertaken to perform a duty owed by the other to the
       third person, or



____________________________________________


6 An employee is a “business invitee.” Gutteridge v. A.P. Green Servs.,
Inc., 804 A.2d 643, 655-56 (Pa.Super. 2002).

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J-A27033-18


       (c) the harm is suffered because of reliance of the other or the
       third person upon the undertaking.

Restatement (Second) of Torts § 324A. The Pennsylvania Supreme Court has

held that Section 324A sets forth a correct statement of Pennsylvania law.

See Scampone v. Grane Healthcare Co., 169 A.3d 600, 619 (Pa.Super.

2017), appeal denied, 188 A.3d 387 (Pa. 2018), and 188 A.3d 388 (Pa. 2018).

       Thus, pursuant to Section 324A, an entity that assumes a landowner’s

responsibility to remove snow and ice from its roads and walkways has a duty

toward invitees to exercise reasonable care in that undertaking. See

Hoffmaster v. Cty. of Allegheny, 550 A.2d 1023, 1026 (Pa.Cmwlth. 1988)

(holding township that had assumed county’s responsibility to remove snow

and ice from county roads pursuant to a contract could be held liable for

negligence under Section 324A);7 cf. Barnes v. Alcoa, Inc., 145 A.3d 730,

737 (Pa.Super. 2016) (finding no evidence that defendant was liable for snow

removal under Section 324A when testimony established that defendant’s

subsidiary company, not defendant, had undertaken removal of snow and ice

from parking lot).

       Here, the Simmons presented uncontradicted evidence that Crothall

undertook the hospital’s duty to its invitees to remove snow and ice in the

parking lot. Therefore, under Section 324A, Crothall owed a duty to exercise

reasonable care in performing snow and ice removal. To the extent that the
____________________________________________


7Although decisions of the Commonwealth Court are not binding on this court,
we may consider them as persuasive authority. Beaston v. Ebersole, 986
A.2d 876, 881 (Pa.Super. 2009).

                                          - 11 -
J-A27033-18



trial court held otherwise, it erred. However, it did not err in holding that the

Simmons failed to introduce sufficient evidence that Crothall had breached

that duty.

      The Simmons maintain that they introduced sufficient evidence to

establish a breach because they presented evidence that Crothall had notice

of the dangerous, slippery condition but negligently failed to remedy it. They

argue that Crothall left snow between parked cars in the lot for three days,

this snow melted and reformed into ice, and that they demonstrated Crothall

had constructive notice that the slippery conditions would have persisted since

sunset, approximately ten hours before Ms. Simmons fell. The Simmons

further argue that the court erred in requiring them to introduce expert

testimony regarding a professional standard of conduct, or evidence that

“refrozen ice [should] be treated within a designated timeframe” to establish

what a reasonable snow removal company would do when on notice of a

dangerous condition. The Simmons’ Br. at 18-19, 34.

      To prevail on a negligence claim, “[t]he plaintiff has the burden of

establishing, by a preponderance of the evidence, that the defendant engaged

in conduct that deviated from the general standard of care expected under

the circumstances, and that this deviation proximately caused actual harm.”

Walters, 187 A.3d at 221 (quoting Martin v. Evans, 711 A.2d 458, 462 (Pa.

1998)). Although whether a defendant has breached its duty is a factual

question for the jury, a plaintiff must set forth evidence of general standard

of expected care and evidence of the defendant’s nonconforming conduct. See

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Schentzel v. Philadelphia Nat. League Club, 96 A.2d 181, 185 (Pa.Super.

1953); accord Iervolino v. Pittsburgh Athletic Co., 243 A.2d 490, 491-92

(Pa.Super. 1968). Industry standards of care are not controlling, but are “to

be considered as factors of measurement of due care.” Schentzel, 96 A.2d at

185. Lay testimony alone can be sufficient to raise a question of fact that a

defendant was negligent for failing to apply salt or other deicing agents to

parking lots. See, e.g, Ferencz v. Milie, 535 A.2d 59, 64 (Pa. 1987);

Harvey, 901 A.2d at 527-28; Tucker, 987 A.2d at 201. However, a jury may

not be permitted to speculate that the defendant was negligent absent some

reference to reasonable actions the defendant failed to take. Schentzel, 96

A.2d at 185.

      Here, the Simmons did not introduce any evidence that Crothall’s

actions fell short of a reasonable standard of care. The only testimony

establishing a standard of care came from Simmers, who testified regarding

Crothall’s general procedure of contacting Rogerio in the event of a snowfall

or when snow melted and refroze in the parking lot. He testified that Rogerio

undertook steps to remediate snow and ice on the evening of the 17th and

the prior six evenings. The Simmons did not introduce the terms of the

contract between the hospital and Crothall as evidence that Crothall failed to

adhere to the standard of care set therein. Nor did the Simmons introduce

testimony establishing industry standards of snow removal to establish that

Crothall fell short of those standards. While the contract terms and industry

standards would not have been determinative, the Simmons also did not

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introduce any testimony addressing alternative snow and ice removal

techniques to evince that Crothall unreasonably failed to employ those

techniques, or any evidence of alternative course of action that Crothall should

have taken. Without this evidence, the jury would have been unable to

conclude that Crothall failed to exercise reasonable care in fulfilling its duty.

Schentzel, 96 A.2d at 185. To the extent the Simmons rely on Ms. Simmons’

cursory testimony that the lot appeared unsalted at the time of her fall, that

testimony falls woefully short of setting forth a standard of care and

establishing that Crothall breached that standard. See Beck v. Holly Tree

Homeowners Ass’n, 689 F.Supp.2d 756, 765-66 (E.D. Pa. 2010) (concluding

plaintiff provided insufficient evidence to create factual dispute whether

defendant could have done something to prevent black ice, such as “apply the

right type or proper amount of deicing material”).8

       The trial court did not err in concluding that the Simmons failed to

submit sufficient evidence that Crothall breached the standard of care, and

therefore properly granted a compulsory nonsuit. Because we hold nonsuit

was proper for this reason, we do not address the Simmons’ other arguments.

       Judgment affirmed.




____________________________________________


8As with decisions of the Commonwealth Court, we are not bound by decisions
of the lower federal courts, but may find them persuasive. Martin v. Hale
Prod., Inc., 699 A.2d 1283, 1287 (Pa.Super. 1997).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/19




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