J-S45032-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

CHRISTINA ALLOWAY,                      :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                 Appellant              :
                                        :
                   v.                   :
                                        :
THE FRANKLIN INSTITUTE,                 :
                                        :
                 Appellee               :     No. 2840 EDA 2016

              Appeal from the Order Entered August 11, 2016,
           in the Court of Common Pleas of Philadelphia County,
                     Civil Division at No(s): 150801092

BEFORE:    GANTMAN, P.J., PANELLA, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:         FILED SEPTEMBER 08, 2017

     Christina Alloway appeals from the August 11, 2016 order granting

summary judgment in favor of The Franklin Institute.     Upon review, we

reverse and remand for further proceedings.

     The Franklin Institute is a science museum located in Philadelphia,

Pennsylvania.   In August 2014, Alloway was a patron of the museum and

“sustained an ankle injury as the result of a fall while exiting from the

‘Neural Climb’ attraction at the Brain Exhibit” at the museum.    Trial Court

Opinion, 3/17/2017, at 2.    “As its name suggests, the ‘Neural [C]limb’

portion of the Brain Exhibit is an interactive climbing attraction.” Id.

Specifically, Alloway contended that when she “climbed down off of the

[B]rain [E]xhibit, she stepped down off of an abnormally large step onto an

uneven surface where the padded/spongy floor meets the hard floor and was



*Retired Senior Judge assigned to the Superior Court.
J-S45032-17


caused to trip and fall on the uneven/unstable surface of the exhibit.” Third

Amended Complaint, 5/20/2016, at ¶ 7. According to Alloway, her fall was

caused by the negligence of The Franklin Institute’s design and maintenance

of the exhibit, as well as its failure to warn patrons of the dangerous

condition. Id. at ¶ 12.

        Thus, in August 2015, Alloway filed a complaint against The Franklin

Institute.   After several sets of preliminary objections, the pleadings were

closed, and the parties conducted discovery.         On June 30, 2016, The

Franklin Institute moved for summary judgment. Alloway filed a response,

and on August 16, 2016, the trial court granted summary judgment in favor

of The Franklin Institute and against Alloway. Alloway timely filed a notice

of appeal, and both Alloway and the trial court complied with Pa.R.A.P.

1925.

        On appeal, Alloway argues that the trial court erred in granting

summary judgment where genuine issues of material fact exist. See

Alloway’s Brief at 5. We review such a claim mindful of the following.

        Our standard of review on an appeal from the grant of a motion
        for summary judgment is well-settled. A reviewing court may
        disturb the order of the trial court only where it is established
        that the court committed an error of law or abused its discretion.
        As with all questions of law, our review is plenary.

        In evaluating the trial court’s decision to enter summary
        judgment, we focus on the legal standard articulated in the
        summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
        where there is no genuine issue of material fact and the moving
        party is entitled to relief as a matter of law, summary judgment
        may be entered. Where the nonmoving party bears the burden

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J-S45032-17


     of proof on an issue, he may not merely rely on his pleadings or
     answers in order to survive summary judgment. 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. Lastly, we will review the record in the light most
     favorable to the non-moving party, and all doubts as to the
     existence of a genuine issue of material fact must be resolved
     against the moving party.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 562-63 (Pa. Super. 2014)

(quoting Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super.

2008)).

     We bear in mind the well-settled law regarding the obligations of a

landowner to business invitees.1

            Pennsylvania courts long have recognized that a land
     owner owes a duty to business invitees to keep premises safe.
     “The standard of care a possessor of land owes to one who
     enters upon the land depends upon whether the person entering
     is a trespassor, licensee, or invitee.” Carrender v. Fitterer, []
     469 A.2d 120, 123 ([Pa.] 1983). In Carrender, our Supreme
     Court explained:

                 Possessors of land owe a duty to protect
           invitees from foreseeable harm. Restatement
           [(Second) of Torts], §§ 341A, 343 & 343A. 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


1
  In the instant case, the parties do not dispute that Alloway was a business
invitee and therefore owed the highest duty of any entrant upon land by The
Franklin Institute. See Trial Court Opinion, 3/17/2017, at 6 (“That Alloway
was a business invitee is not in dispute[.]”).

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                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.”

          Restatement, supra, § 343. Thus, as is made clear
          by section 343A of the Restatement,

                “[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, supra, § 343A.

     Id. For a danger to be “known,” it must “not only be known to
     exist, but … also be recognized that it is dangerous and the
     probability and gravity of the threatened harm must be
     appreciated.” Id. at 124 (quoting Restatement (Second) of
     Torts, § 343A, comment b).

            More recently, this Court reiterated that “[t]he duty owed
     to a business invitee is the highest 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.” Campisi
     v. Acme Markets, Inc., 915 A.2d 117, 119 (Pa. Super. 2006)
     (citation omitted). Further:

                An invitee is entitled to expect that the
          possessor will take reasonable care to ascertain the
          actual condition of the premises and, having
          discovered it, either to make it reasonably safe by
          repair or to give warning of the actual condition and
          the risk involved therein. Therefore an invitee is not
          required to be on the alert to discover defects which,

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           if he were a mere licensee, entitled to expect nothing
           but notice of known defects, he might be negligent in
           not discovering. This is of importance in determining
           whether the visitor is or is not guilty of contributory
           negligence[2] in failing to discover a defect, as well as
           in determining whether the defect is one which the
           possessor should believe that his visitor would not
           discover, and as to which, therefore, he must use
           reasonable care to warn the visitor.

     Restatement (Second) of Torts § 343, comment d.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84–85 (Pa.

Super. 2015) (en banc).

     As the trial court acknowledges, whether The Franklin Institute

breached this duty “hinges on whether a finder of fact could find the

existence of a latent defect which was or should have been known to the

premises owner.” Id. The trial court concluded that because “Alloway fails

to provide technical data regarding a hazardous slant or unevenness, the

eventual fact finder’s analysis must hinge on more subjective evidence and

testimony.” Id.     The trial court went on to conclude that “[w]hile [Mark

2
  Comparative negligence is codified in 42 Pa.C.S. § 7102 and provides as
follows.

     In all actions brought to recover damages for negligence
     resulting in death or injury to person or property, the fact that
     the plaintiff may have been guilty of contributory negligence
     shall not bar a recovery by the plaintiff or his legal
     representative where such negligence was not greater than the
     causal negligence of the defendant or defendants against whom
     recovery is sought, but any damages sustained by the plaintiff
     shall be diminished in proportion to the amount of negligence
     attributed to the plaintiff.

Id. at § 7102(a).

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Harmon, representative of The Franklin Institute,] was willing to concede to

the existence of unlevel areas on the exhibit’s floor, he stressed that the

ground itself was largely uniform in evenness.” Id. at 6-7. Thus, the trial

court concluded there was no defect as a matter of law. Alloway argues that

this testimony should be permitted to be weighed by a fact finder.

     We review the evidence considered by the trial court, beginning with a

review of Alloway’s account of the fall. Alloway described the Brain Exhibit

as “a dark place, very few lights, with some netting and platforms to climb

through.” See The Franklin Institute’s Motion for Summary Judgment,

6/30/2016, at Exhibit D (N.T. (Deposition of Alloway), 6/6/2016, at 24).

According to Alloway, she “stepped like [she] would step off of a step,

because that is the distance that it looked like to [her].” Id. at 28.   “The

surface was not a hard floor like it looked to be.     It’s foam and it was

uneven.” Id. at 29. Alloway testified that she fell “[b]ecause the floor was

uneven.” Id. at 32.

     In support of its motion for summary judgment, The Franklin Institute

provided a diagram of this location and Harmon’s testimony. The diagram

shows that there was a 1¼ inch slant to the step from which Alloway fell.

See Memorandum of Law in Support of The Franklin Institute’s Motion for

Summary Judgment, 6/30/2016, at 19 (showing a diagram of the step

where there is a 1¼ inch slant to the step). Additionally, Harmon testified

that there are no safety or warning signs about the Neural Climb. See The



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Franklin Institute’s Motion for Summary Judgment, 6/30/2016, at Exhibit E

(N.T. (Deposition of Harmon), 6/6/2016, at 25).          Harmon testified that

“[p]retty much every place where you step down is even…. There might be a

slight slant.” Id. at 26. When Harmon was asked whether “there are some

exits and entrances into the Neural Climb that … the flooring underneath

would be unlevel,” Harmon responded, “Yes. I’ll agree to that.” Id. at 27-

28.

      Based on the foregoing, we conclude that there is sufficient evidence,

if believed by a fact-finder, to find a defect in the exhibit about which The

Franklin Institute knew or should have known. Thus, we hold the trial court

erred in granting summary judgment on this basis.3

      We now turn to the trial court’s conclusion that even if there was a

defect, that defect did not present an unreasonable danger.        Trial Court

Opinion, 3/17/2017, at 8.      The determination of whether a danger is

unreasonable is generally left to the fact finder. See e.g., Zito v. Merit

Outlet Stores, 647 A.2d 573 (Pa. Super. 1994) (holding a jury should

determine whether the store laid out displays and aisles in such a way that it

could not rely on patrons observing an existing ramp).




3
  We recognize that the aforementioned slant and unevenness may appear
to be trivial. However, we have held that the triviality of a defect is a
question best resolved by a fact finder. See Reinoso, 180 A.3d at 87
(“Pennsylvania courts have largely avoided assigning any dividing line
between trivial and non-trivial defects[.]”).

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      The trial court concluded that the name of the exhibit itself, the Neural

Climb, together with Alloway’s climbing through the exhibit before her final

step caused her fall, leads to the conclusion that “a reasonable patron would

have been aware of the atypical nature of the exhibit and would have

adjusted his or her behavior accordingly.” Trial Court Opinion, 3/17/2017, at

8.   Once again, we conclude that the extent of Alloway’s potential

comparative negligence is an issue for a fact finder. According to Alloway,

the step “looked like a normal size step down” and she did not realize it was

as high as it was and then when she stepped, the “floor was uneven.” The

Franklin Institute’s Motion for Summary Judgment, 6/30/2016, at Exhibit D

(N.T. (Deposition of Alloway), 6/6/2016, at 30, 32). Again, these facts, if

credited by a fact-finder, could lead to the conclusion that Alloway acted

reasonably. See Jerominski v. Fowler, Dick & Walker, 93 A.2d 433 (Pa.

1953).

      Because “there is evidence that would allow a fact-finder to render a

verdict in favor of the non-moving party,” we hold the trial court erred by

granting summary judgment in favor of The Franklin Institute. Reinoso, 108

A.3d at 85 (quoting Mull v. Ickes, 994 A.2d 1137, 1139-40 (Pa. Super.

2010)). Thus, we reverse the order of the trial court.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/8/2017




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