J-A04019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALISA CREIGHTON AND JIPPEY                :   IN THE SUPERIOR COURT OF
CREIGHTON, H/W,                           :        PENNSYLVANIA
                                          :
                    Appellants            :
                                          :
              v.                          :
                                          :
KIDDIE ACADEMY OF                         :
PLUMSTEADVILLE; BJ KIDS, INC.;            :
JANICE E. VISCONTO; THE ESTATE            :
OF WILLIAM VISCONTO; KIDDIE               :
ACADEMY; KIDDIE ACADEMY CHILD             :
LEARNING CENTER; KIDDIE                   :
ACADEMY DOMESTIC FRANCHISING,             :
LLC; TOM KEENAN BUILDERS; TOM             :
KEENAN; PINNACLE PAVEMENT, LLC;           :
HANOVER COMMONS ASSOCIATES,               :
L.P.; D&B CARES FOR KIDS, INC.;           :
SHAN-GRI-LA SOD FARM; KEENAN              :
BUILDERS; AND ESTATE OF DON               :
KEENAN,                                   :
                                          :
                    Appellees             :
               v.                         :
                                          :
SGL CONTRACTORS, INC.,                    :
                                          :
                    Appellee              :   No. 3130 EDA 2018


          Appeal from the Judgment Entered September 12, 2018
            in the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): November Term, 2015 No. 00383

BEFORE:      PANELLA, P.J., STRASSBURGER, J.* AND COLINS, J.*

MEMORANDUM BY STRASSBURGER, J.:                         FILED JULY 17, 2020

     Alisa    Creighton   (Creighton)   and   her   husband   Jippey   Creighton

(collectively, the Creightons) appeal from a judgment entered against them

and in favor of Hanover Commons Associates, L.P. (Hanover) and SGL

*Retired Senior Judge assigned to the Superior Court.
J-A04019-20

Contractors, Inc. (SGL). We affirm the entry of nonsuit to Kiddie Academy

of Plumsteadville (Kiddie Academy), vacate the entry of nonsuit against

Shan-Gri-La Sod Farm, vacate the judgment in favor of Hanover and SGL,

and remand for further proceedings in accordance with this memorandum.

     This case stems from a slip-and-fall incident in a parking lot on a

commercial property owned by Hanover.         Hanover leased portions of the

property to three different tenants. Hanover maintained the common areas

of the property, including the parking lot.     The incident occurred in the

parking lot outside of the portion of the property leased to Kiddie Academy,

which operated a daycare. The trial court recounted the facts as follows.

            On January 13, 2014, around 7:45 a.m., Creighton was
     taking her children to daycare at Kiddie Academy []. She had
     been taking her children there for almost three years. She
     testified that she parked her minivan near the Kiddie Academy
     entrance, exited the driver’s seat, and began walking towards
     the rear of the van. As she did so, her “foot just flew out from
     under” her and she fell. She stated that the parking lot surface
     was “just really slippery,” though she did not immediately know
     what she had slipped on. It was not snowing or raining, and she
     had not seen any potential hazards on the roadway. She stated
     that the parking lot had [] a “white coating” on it at the time of
     her fall, although she did not know if this was frost or snow or
     something else.

           Creighton averred that, as she fell she felt “shooting pains”
     down her right arm. While she was on the ground, she saw a
     divot or depression in the asphalt where it appeared that water
     had pooled and then froze[], and she believed she had slipped
     on that puddle of ice. She got up and took her children inside.
     She immediately reported her fall to one of the teachers [at
     Kiddie Academy], and then to the director of the daycare, Alison
     Mawson. As she returned to her van to leave, she took Mawson
     with her and pointed out the icy patch where she had fallen.
     Creighton then returned home and called her doctor, who

                                    -2-
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      referred her to a specialist. She began experiencing pains that
      same day in her arm and collarbone.

              Creighton averred that, despite many types of treatments
      she has received, she still has excruciating ongoing pains in her
      arms, shoulders, and collar[bone] areas from this incident that
      significantly affect her day-to-day life, as well as concentration
      and memory/recall issues. She stated that her doctor informed
      her that she will need future surgical treatments, although she
      had not yet undergone any surgeries at the time of this
      litigation.

Trial Court Opinion, 6/1/2019, at 2-3 (party designation altered; record

citations and title omitted).

      The Creightons filed a complaint raising claims of negligence and loss

of consortium against Defendants1 on November 3, 2015, which was

amended on January 13, 2016.           After Defendants filed a series of

preliminary objections, all of which were overruled or mooted by the filing of

the amended complaint, Defendants each filed an answer with new matter




1
  The term Defendants collectively refers to the individuals and entities
referenced in the caption, all of which were purportedly connected to the
daycare (i.e., Kiddie Academy), owner/property manager of the commercial
property (i.e., Hanover), and the snow-and-ice removal company used by
the owner/property manager (i.e., either Shan-Gri-La Sod Farm or SGL; as
explained infra, the issue of which of these two entities performed snow-
and-ice removal is in dispute). Several of the Defendants were dismissed
from the case or had summary judgment entered in their favor prior to trial,
including Pinnacle Pavement, LLC (dismissed with prejudice via stipulation),
the Estate of Don Keenan, Sr. (dismissed with prejudice via unopposed
motion for summary judgment), and Tom Keenan and Tom Keenan Builders
(summary judgment entered in their favor and against all other parties with
prejudice).




                                    -3-
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and a cross-claim against other co-defendants in 2016.2 On June 6, 2016,

Hanover filed a joinder complaint against SGL, which filed an answer with

new matter and a cross-claim to the Creightons’ amended complaint and

Hanover’s joinder complaint on August 30, 2016.3 Following discovery and

the filing of various motions, including motions for summary judgment, and

motions in limine, the case proceeded to a jury trial. During the trial, which

was held on May 1-7, 2018, the remaining Defendants moved for a nonsuit.

The trial court granted the motions for nonsuit for nine of the Defendants,4

and denied the motions for nonsuit filed by Hanover and SGL.           At the

conclusion of trial, the jury rendered a verdict finding that Hanover and SGL

were not negligent.   It also determined that Creighton was not negligent.

The Creightons timely filed a post-trial motion, which was denied by the trial

court. Judgment was entered on September 17, 2018.

     The Creightons timely filed a notice of appeal. The trial court ordered

the Creightons to file a concise statement of matters complained of on



2 Ultimately, however, Defendants agreed not to present evidence against
each other at trial and largely presented a united front.

3As the statute of limitations had expired by the time SGL was joined as an
additional defendant, the Creightons did not assert a direct complaint
against SGL; thus, SGL’s liability is derivative of Hanover’s.
4 These defendants were D & B Cares for Kids, Kiddie Academy Domestic
Franchising, LLC, Kiddie Academy Child Learning Center, Estate of William
Visconto, Janice E. Visconto, Kiddie Academy, BJ Kids, Inc., Keenan Builders,
and Shan-Gri-La Sod Farm.



                                    -4-
J-A04019-20

appeal pursuant to Pa.R.A.P. 1925(b).     The Crieghtons complied, but their

concise statement listed 16 issues and 28 sub-issues.         The trial court

submitted a Rule 1925(a) opinion, which addressed the merits on certain

issues it deemed to be discernable, but also suggested that the verbosity

and redundancy of the statement “was an attempt to overwhelm the trial

court and circumvent the meaning and purpose of Rule 1925(b).”5          Trial

Court Opinion, 6/1/2019, at 6 (citation and quotation marks omitted).     The

trial court was able to discern and address all of the issues raised in the

Creightons’ brief.

      Timely filing of a response to a trial court’s Rule 1925(b) order is not

enough to preserve issues for appeal. Jiricko v. Geico Ins. Co., 947 A.2d

206, 210 (Pa. Super. 2008). Rule 1925 requires an appellant to “set forth

only those rulings or errors that the appellant intends to challenge,”

Pa.R.A.P. 1925(b)(4)(i), and the statement “should not be redundant[.]”

Pa.R.A.P. 1925(b)(4)(iv).   “Where non-redundant, non-frivolous issues are

set forth in an appropriately concise manner, the number of errors will not

alone be grounds for finding waiver.” Id. However, if an appellant fails to

set forth a sufficiently “concise” and “coherent” statement in circumstances

that suggest bad faith, waiver of all issues may result. Jiricko, 947 A.2d at

210; see also Mahonski v. Engel, 145 A.3d 175, 182 (Pa. Super. 2016)


5
 The trial court also declined to respond to various issues it deemed to be
waived for vagueness.



                                    -5-
J-A04019-20

(deeming all claims waived when appellants filed a voluminous Rule 1925(b)

statement with 87 issues under circumstances suggesting bad faith in a

straightforward contract action); Maya v. Johnson & Johnson, 97 A.3d

1203, 1211 n.4 (Pa. Super. 2014) (suggesting that courts should consider

the complexity of the lawsuit, the size of the record, and evidence of bad

faith or an attempt to thwart the appellate process when deciding waiver

issues pursuant to Pa.R.A.P. 1925(b)).

     We agree with the trial court that the Creightons’ concise statement is

redundant and not actually concise, but it is not clear that the Creightons’

counsel used it to subvert intentionally the intent of Rule 1925. We remind

the Creightons’ counsel that the point of Rule 1925 is to winnow down the

issues for appeal, but decline to dismiss the Creightons’ appeal based upon

the concise statement. See Morris v. DiPaolo, 930 A.2d 500, 503 (Pa.

Super. 2007) (declining to exercise this Court’s discretion to dismiss all

appellate issues based upon concise statement that purportedly raised 29

issues;   statement   actually   raised   far   fewer   issues,   and   this   Court

characterized the redundant nature as a reflection of drafting that was

“clearly inartful” but “not intentionally subver[sive]” of “the intent of the

Rules of Appellate Procedure”).

     In contrast to their concise statement, the Creightons raise four issues

on appeal.

     1. Viewing all of the evidence actually admitted and before the
     jury for its consideration at trial in the light most favorable to the

                                      -6-
J-A04019-20


      Creightons, did the trial court err or otherwise abuse its
      discretion in granting a non[]suit in favor of Shan-Gri-La Sod
      Farms where there was unrebutted evidence that Shan-Gri-La
      Sod Farms had an oral contract to maintain the subject parking
      lot and hazardous conditions existed in the subject parking lot?

      2. Where the trial court precluded evidence Kiddie Academy had
      control of the subject parking lot, did the trial court err or
      otherwise abuse its discretion in dismissing Kiddie Academy of
      Plumsteadville from the case?

      3. Did the trial court commit legal error when it charged the jury
      concerning the “hills[-]and[-]ridges” doctrine telling the jury that
      the Creightons had the burden of proving the three essential
      elements [of the doctrine] when the Creightons did not have the
      burden of proving the “hills[-]and[-] ridges” doctrine; did not
      offer any evidence concerning the doctrine; no party requested
      the “hills[-]and[-]ridges” doctrine jury charge; the trial court
      admitted that it erred in so charging; and there was a
      substantial possibility of an incorrect result as the jury found
      that the Creightons did not sustain their burden of proof on the
      issue of negligence?

      4. Did the trial court abuse[] its discretion by entering preclusion
      orders and rulings preventing the Creightons from utilizing
      photographs depicting the exact area where Creighton fell, which
      photographs support the presence of defects where ice would
      form and, precluding the Creightons from establishing issues of
      notice concerning foreseeable hazards in the parking lot?

The Creightons’ Brief at 5-6 (trial court answers omitted; party designations

modified; issues re-ordered for ease of disposition).

Issue One: Nonsuit Against Shan-Gri-La Sod Farm

      In their first issue, the Creightons argue that the trial court erred by

granting Shan-Gri-La Sod Farm’s motion for a nonsuit.         According to the

Creightons, because Don Keenan, Jr., who worked for Hanover, which owned

and managed the property, testified that “there was an oral contract with



                                     -7-
J-A04019-20

Shan-Gri-La Farm which would include treating the parking lot when there

was a freeze and re-freeze,” the Creightons established that Shan-Gri-La

Sod Farm owed a duty to protect against hazardous conditions in the parking

lot. The Creightons’ Brief at 52-57.

      We have said the following regarding nonsuits.

              As an initial matter, the Rules of Civil Procedure provide, in
      relevant part, that a trial court “may enter a nonsuit on any and
      all causes of action if, at the close of the plaintiff’s case on
      liability, the plaintiff has failed to establish a right to relief.”
      Pa.R.C.P. [] 230.1(a)(1); [see also Pa.R.C.P. 230.1(c)(1)
      (addressing nonsuits in a case against multiple defendants)].
      Entry of a nonsuit is proper only if the factfinder, viewing all the
      evidence in favor of the plaintiff, could not reasonably conclude
      that the essential elements of a cause of action have been
      established. When a nonsuit is entered, the lack of evidence to
      sustain the action must be so clear that it admits no room for
      fair and reasonable disagreement. A trial court can only grant a
      compulsory nonsuit in cases where it is clear that a cause of
      action has not been established and the plaintiff must be given
      the benefit of all favorable evidence along with all reasonable
      inferences of fact arising from that evidence, resolving any
      conflict in the evidence in favor of the plaintiff.

            When considering a motion for a nonsuit, issues of
      credibility and the weight to be assigned to the evidence are not
      to be resolved by the trial judge, but must be left for the finder
      of fact to resolve at the close of the evidence. Ultimately, a
      motion for a non[]suit may be granted only where it is clear that
      no other conclusion could be reached under the evidence
      presented.

MB Financial Bank v. Rao, 201 A.3d 784, 788 (Pa. Super. 2018) (some

citations and quotation marks omitted).

      Upon moving for a nonsuit, counsel for Shan-Gri-La Sod Farm argued

that there had been no mention of Shan-Gri-La Sod Farm in the Creightons’



                                       -8-
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case, and that the only reference was to “Shan-Gri-La Farm” or the

additional defendant SGL, which was a separate corporate entity.         N.T.,

5/3/2018, at 265-69 (arguing the mere mention of “Shan-Gri-La Farm” did

not establish liability for either Shan-Gri-La Sod Farm or SGL, which are two

separate entities; one is a sod farm and the other is a snow and ice removal

company).

       In its Rule 1925(a) opinion, the trial court states that it granted the

nonsuit in error because upon further review it realized Keenan did reference

Shan-Gri-La Sod Farm during its testimony. Trial Court Opinion, 6/3/2019,

at 21. However, the trial court contends the error was harmless, contending

that   because   SGL    and   Shan-Gri-La   Sod   Farm    were   referred   to

interchangeably, and the jury did not find SGL to be negligent. Trial Court

Opinion, 6/5/2019, at 21.

       Our review of the record reveals that while counsel for the Creightons

referred to Shan-Gri-La Sod Farm interchangeably with SGL in his opening

statement,6 generally thereafter only “Shan-Gri-La Farm” or “Shan-Gri-La”




6 See N.T. 5/1/2018, at 15 (“You are going to hear there is another
company by the name of Shan-Gri-La Sod Farm or SGL, and you are going
to hear evidence in this case that part of their job was to make sure that
parking lot was safe, if there is any slippery conditions caused by ice, snow
and what’s called refreezing.”).




                                     -9-
J-A04019-20

was mentioned.7 None of the parties is named “Shan-Gri-La Farm,” and the

casual term “Shan-Gri-La” could be a shortened version of Shan-Gri-La Sod



7See for example the following exchanges between the Creightons’ counsel
and Keenan:

      Q. And you understood -- I want to talk to you for a second
      about Shan-Gri-La Farm. Okay?

      A. Okay.

      Q. Could you tell us whether or not there was an agreement that
      your dad had before he passed and then you have to have snow
      and ice remediation or issues addressed for the purposes of
      safety?

      A. After my father passed, Chip asked me if he could keep going
      with the site, and everybody was all happy with Shan-Gri-La
      and Chip, and I was happy with him. So I said sure just keep
      going. Do whatever -- if it's not broken, don't fix it.

      Q. And you are aware that Shan-Gri-La Farm was the company
      that performed snow and ice removal at Hanover Commons prior
      to your dad's death?

      A. I relied [sic] Shan-Gri-La Farm to Chip.

N.T., 5/1/2018, at 151-53 (emphasis added).

      Q. Sir, are you familiar with Shan-Gri-La Farm?

      A. Yes.

      Q. And you've known them for a lot of years; am I correct?

      A. Correct.

      Q. Shan-Gri-La Farm performed snow and ice removal at the
      Hanover Commons prior to your dad’s death?

(Footnote Continued Next Page)


                                   - 10 -
J-A04019-20

Farm or a lengthened version of SGL. Therefore, the evidence is ambiguous,

and since the trial court should have afforded the Creightons “the benefit of

all favorable evidence along with all reasonable inferences of fact arising

from that evidence, resolving any conflict in the evidence in favor of the

plaintiff[s],” the granting of the nonsuit based upon the mention of “Shan-

Gri-La Farm” only was in error. See MB Financial Bank, 201 A.3d at 788.

      Similarly, we cannot agree with the trial court that the error was

harmless. It is possible, as the trial court posits, that the jury would have

found Shan-Gri-La Sod Farm not negligent because it found SGL not

negligent. However, it is also possible that the jury found SGL not negligent

based upon the dearth of references in the record to SGL specifically and it

would have treated Shan-Gri-La Sod Farm differently. Had Shan-Gri-La Sod

Farm’s motion for a nonsuit not been granted, the jury may have

determined that the references to Shan-Gri-La Farm were a shortened

version of Shan-Gri-La Sod Farm, and Keenan’s testimony was enough to
(Footnote Continued)   _______________________



      A. Yes.

      Q. And Shan-Gri-La Farm is the one now that you said Chip is
      still doing work for you?

      A. Correct.

      Q. And my understanding is that this is an oral contract?

      A. Yes.

Id. (emphasis added).



                                                 - 11 -
J-A04019-20

establish liability for Shan-Gri-La.8 Accordingly, we determine that the trial

court erred in granting Shan-Gri-La Sod Farm’s motion for a nonsuit, and we

remand for further proceedings as to Shan-Gri-La Sod Farm.




8 Based upon Keenan’s testimony, which was not rebutted by SGL or Shan-
Gri-La Sod Farm, we cannot say that it is “clear that no other conclusion
could be reached under the evidence presented” as to the duty of the snow-
and-ice removal company, whichever entity that was, to be aware of and
correct hazards in the parking lot. See N.T., 5/1/2018, at 121-65 (stating
that Hanover relied upon the snow-and-ice removal company’s expertise as
to snow and ice removal and correction of hazardous conditions; under the
oral contract Hanover had with the company, the company did not need to
get permission to fix a hazardous problem such as water pooling and
refreezing; that Hanover would pay the bills the company sent without
question; and the company had been to the property eight times during the
winter season of 2013-2014 prior to Creighton’s fall).




                                    - 12 -
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Issue Two: Nonsuit Against Kiddie Academy

     In their second issue, the Creightons argue that the trial court erred in

granting Kiddie Academy’s motion for nonsuit.     The Creightons argue that

they established a duty on behalf of Kiddie Academy to ensure a safe

parking lot and to correct any defects such as the divot where Creighton

allegedly fell. The Creightons point to deposition testimony9 by Mawson, the

Kiddie Academy director, which allegedly establishes Kiddie Academy’s duty

because Mawson on her own accord sometimes walked the parking lot to

look for hazards and salted the parking lot occasionally, including after

Creighton told Mawson she fell on ice. The Creightons’ Brief at 59-60.

     The trial court granted Kiddie Academy’s motion for nonsuit based

upon its argument that the lease between Hanover and Kiddie Academy

allocated responsibility for upkeep and safety of the parking lot to Hanover

as landlord.   See Trial Court Opinion, 6/1/2019, at 20 (relying upon the

lease and Leary v. Lawrence Sales Corp., 275 A.2d 32 (Pa. 1971) (“In

Pennsylvania, it has long been established as a principle of landlord-tenant

law that where the owner of real estate leases various parts thereof to

several tenants, but retains possession and control of the common passage-

ways and aisles which are to be used by business invitees of the various



9 The Creightons claim the trial court prohibited them from referencing this
testimony at trial based upon its allegedly erroneous motion in limine
rulings.



                                   - 13 -
J-A04019-20

tenants, the obligation of keeping the common aisles safe for the business

invitees is imposed upon the landlord and not upon the tenants, in the

absence of a contrary provision in the lease or leases”)).

      This Court has summarized Leary as follows.

             In [Leary], the owner of a shopping center retained
      possession and control of the central aisle of a grocery store in
      the shopping center complex, but the grocery store nevertheless
      had its employees clean debris from that central aisle. While in
      that central aisle, the plaintiff slipped and fell on debris on the
      floor. 275 A.2d at 33. The plaintiff argued that the grocery store
      was liable because it “voluntarily assumed the duty of keeping
      safe the entrance and exit aisle to its grocery store,” id. at 36,
      but the Supreme Court rejected that argument. The Court
      concluded that the shopping center had not (1) “ever released
      its control” over the central aisle, (2) elected to reduce the
      cleaning services it was obligated to provide under the lease, or
      (3) agreed that the grocery store would “keep the area clean.”
      Id. Therefore, despite the store’s actions, there was insufficient
      proof of a voluntary assumption by the grocery store of a duty
      that belonged to the shopping center.

Newell v. Montana West, Inc., 154 A.3d 819, 839 (Pa. Super. 2017)

(parallel citations omitted).

      The Creightons neither discuss Leary nor cite to any law supporting

their argument.     Thus, their argument is underdeveloped and therefore

waived. See Bombar v. West American Ins. Co., 932 A.2d 78, 94 (Pa.

Super. 2007) (finding appellant’s issue waived where it set forth no relevant

authority supporting its position). Even if they had not waived this issue, it

would not merit them relief. The lease allocated responsibility of the parking

lot to Hanover.   Even assuming arguendo that the trial court should have

permitted and considered evidence demonstrating that occasionally Mawson

                                    - 14 -
J-A04019-20

walked through the parking lot to look at the conditions and put salt down,

based upon Leary, there still was insufficient proof of a voluntary

assumption by Kiddie Academy of a duty that belonged to Hanover.

Accordingly, no relief is due.

Issue Three: Jury Instructions

      In reviewing the Creightons’ challenge to the jury instructions, we bear

in mind the following.

      Our standard of review regarding jury instructions is limited to
      determining whether the trial court committed a clear abuse of
      discretion or error of law[,] which controlled the outcome of the
      case. Error in a charge occurs when the charge as a whole is
      inadequate or not clear or has a tendency to mislead or confuse
      rather than clarify a material issue. Conversely, a jury instruction
      will be upheld if it accurately reflects the law and is sufficient to
      guide the jury in its deliberations.

      The proper test is not whether certain portions or isolated
      excerpts taken out of context appear erroneous. We look to the
      charge in its entirety, against the background of the evidence in
      the particular case, to determine whether or not error was
      committed and whether that error was prejudicial to the
      complaining party.

      In other words, there is no right to have any particular form of
      instruction given; it is enough that the charge clearly and
      accurately explains the relevant law.

Pledger by Pledger v. Janssen Pharm., Inc., 198 A.3d 1126, 1146 (Pa.

Super. 2018). “[W]e are mindful that a trial court is bound to charge only

on that law for which there is some factual support in the record.” Levey v.

DeNardo, 725 A.2d 733, 735 (Pa. 1999) (citation omitted).




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      During its instruction to the jury, the trial court read Pennsylvania

Standard Civil Jury Instruction 18.90, Owner Occupier’s Duty of Care (Ice or

Snow on Abutting Public Sidewalk or Walking Surface), which is known

colloquially as the hills-and-ridges doctrine.     Specifically, the trial court

instructed the jury that

      [t]o establish liability upon the landowner, the [Creightons] must
      prove that each of the following three essentials [was] present.
      First, that ice and snow had accumulated on the walking surface
      in ridges or elevations that unreasonably obstructed travel and
      were a danger to persons traveling on the walk. Second, that
      the defendant property owner knew or should have known of the
      existence of such conditions. Third, that it was the dangerous
      accumulation of ice and snow that caused [Creighton] to fall.

N.T., 5/7/2018, at 111-12.

      Following the instruction, the Crieghtons promptly objected to the trial

court’s use of this instruction, but the trial court overruled the objection. Id.

at 125-26.    On appeal, the Creightons argue that the trial court erred by

reading this charge to the jury because it set forth a burden of proof that the

Creightons did not have to meet.       The Creightons’ Brief at 28-31.     They

point out that the charge was not discussed during the charging conference

and none of the defendants requested its use.         Id. The Creightons also

contend the facts of the case did not support use of the instruction since

there was no evidence of slippery conditions in general on the day in

question. Id. at 29-30.

      In its Rule 1925(a) opinion, the trial court admits that it “inadvertently

used the 18.90 instruction and had not previously discussed it with counsel

                                     - 16 -
J-A04019-20

during the charging conference.” Trial Court Opinion, 6/3/2019, at 16. The

trial court contends that notwithstanding its mistake, no relief is due

because the instruction did not create prejudice. When the jury submitted a

question about the definition of negligence to the trial court during its

deliberations, the trial court responded by reading the general negligence

instruction without any mention of the hills-and-ridges doctrine, thereby

clarifying to the jury that “the reasonable person negligence standard

applied outside the consideration of the type of snow/ice accumulation

involved.” Id. at 16-17.

      The hills-and-ridges doctrine is a legal principle that protects an owner

or occupier of land from liability for generally slippery conditions resulting

from ice and snow where the owner has not permitted the ice and snow to

accumulate unreasonably in ridges or elevations.      Harmotta v. Bender,

601 A.2d 837, 842 (Pa. Super. 1992). This doctrine, “as defined and applied

by the courts of Pennsylvania, is a refinement or clarification of the duty

owed by a possessor of land and is applicable to a single type of dangerous

condition, i.e., ice and snow.” Wentz v. Pennswood Apts., 518 A.2d 314,

316 (Pa. Super. 1986). Because snow and ice are common in Pennsylvania,

the owner of land is not liable for all injuries due to snow and ice; “the only

duty upon the property owner or tenant is to act within a reasonable time

after notice to remove [the snow and ice] when it is in a dangerous




                                    - 17 -
J-A04019-20

condition.” Collins v. Philadelphia Suburban Dev. Corp., 179 A.3d 69,

73-76 (Pa. Super. 2018) (citation omitted).

            In order to recover for a fall on an ice or snow covered
      surface, a plaintiff must show:

            (1) that snow and ice had accumulated on the
            sidewalk in ridges or elevations of such size and
            character as to unreasonably obstruct travel and
            constitute a danger to pedestrians travelling
            thereon; (2) that the property owner had notice,
            either actual or constructive, of the existence of such
            condition; [and] (3) that it was the dangerous
            accumulation of snow and ice which caused the
            plaintiff to fall.

Id. (citation omitted).

      The hills-and-ridges doctrine is not applicable in all situations involving

snow and ice, and “is subject to a number of [] significant exceptions.”

Harmotta, 601 A.2d at 841-42. The doctrine precludes liability only where

“the accident occurred at a time when general slippery conditions prevailed

in the community as a result of recent precipitation.” Williams v. Shultz,

240 A.2d 812, 813-14 (Pa. 1968). “[P]roof of hills and ridges is not required

when the hazard is not the result of a general slippery condition prevailing in

the community, but of a patch of ice.”         Harmotta, 601 A.2d at 841-42,

citing Tonik v. Apex Garages, Inc., 275 A.2d 296 (Pa. 1971) (holding that

the doctrine was inapplicable to a fall that had occurred due to ice, which

had formed in a crack on a sidewalk otherwise free of ice and snow and

without recent precipitation) and Williams, 240 A.2d at 814 (holding that

the trial court erred by requiring plaintiff to prove hills and ridges in situation

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involving “a specific, localized, isolated patch of ice” hidden by leaves on a

sidewalk without recent precipitation).

      The Creightons’ theory is premised upon the notion that the Hanover-

owned “parking lot has potholes, divots, depressions, and defects in which

water would pool [and freeze].” The Creightons’ Brief at 19. They contend

there were no general slippery conditions that day, rendering the hills-and-

ridges doctrine inapplicable.   Id. at 30.    However, Hanover claims that

because Creighton testified that there was a white coating on the parking lot

that could have been frost or snow, she opened the door to invocation of the

hills-and-ridges doctrine.

      Based on the “background of the evidence in the particular case,” see

Pledger, 198 A.3d at 1146, we do not agree with Hanover. The Creightons

did not produce a weather expert, and the only testimony about the weather

came from Mawson, the director of Kiddie Academy; Keenan, who worked

for Hanover; and Creighton.     Creighton told Mawson that she had fallen on

ice in the parking lot and took Mawson to the place where she fell, where

Mawson observed a small patch of ice.        N.T., 5/2/2018, at 105-06, 163.

Mawson did not see other spots of ice around this area.          Id. at 140.

Mawson testified that there was a “white glaze” on the parking lot, which she

attributed to “remnants of salt being on the parking lot.”       Id. at 150.

Mawson does not recall what the weather was like in the days leading up to

this day. Id. at 153. She does not recall it snowing that day, and the area



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where Creighton had fallen was not wet.      Id. at 143, 172.    She recalls it

being cold and “wintery,” and stated there could have been snow on the

grass adjacent to the parking lot. Id. at 145.

      Creighton testified that it was not snowing or raining during her drive

to Kiddie Academy that morning. N.T., 5/3/2018, at 23. The roads were

clear, and there was nothing that was slippery, dangerous, or hazardous.

Id. at 23, 173.   She did not have to clean her windshield or shovel her

walkway at home that morning. Id. at 173. She does not recall if it had

been raining or snowing the day before her fall.     Id.   Creighton testified,

“when I got out of my car [in the parking lot outside Kiddie Academy] there

was a white -- what appeared to be a white coating. I don’t know if it was

frost. I didn’t know if it was snow. [T]here was a white coating across the

parking lot.” Id. at 172. Creighton did not know at first what had made her

fall, but when she was on the ground, she observed a “divot in the ground

where like water seemed to have pooled and had frozen.”            Id. at 27.

However, Creighton admitted that she did not know the source of the patch

of ice, and she did not know if the weather caused the ice to form or if it was

caused by something else like a person spilling something, which then froze.

Id. at 113-14.     She described the temperature that morning as being




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“freezing cold,” but she did not know if at the time of her fall the

temperature was above or below freezing.10 Id. at 173.

      Creighton’s testimony does not clearly establish whether or not there

was snow or ice outside of the patch of ice where she fell. But even if one

believes that the white coating in the parking lot was snow or frost as

opposed to a glaze from old salt as Mawson indicated, the testimony of

Mawson, Keenan, and Creighton suggest the absence of “general slippery

conditions prevail[ing] in the community as a result of recent precipitation.”

Williams, 240 A.2d at 813-14.         Particularly where none of the parties

requested the instruction, the instruction was not discussed during the

charging conference, and the trial court admits that it read the instruction in

error, we decline to find there is factual support in the record for the charge.

Levey, 725 A.2d at 735.

      After reviewing the trial court’s jury charge in its entirety, we also do

not agree with the trial court that any prejudice from reading the instruction

was cured by the trial court’s reiteration of the general reasonable person

standard to the jury. The trial court erroneously informed the jury that the

Creightons had to meet a burden they did not have.          See Williams, 240

A.2d at 814 (remanding for new trial after trial court erroneously required

plaintiff to prove hills and ridges in situation involving “a specific, localized,


10 In contrast, Keenan testified that he was surprised to hear there was ice
in the parking lot because it was “a warm day.” N.T., 5/1/2018, at 62.



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isolated patch of ice”). It never told the jury to disregard the earlier hills-

and-ridges instruction.   The trial court’s reading of the general negligence

standard to the jury without connecting it to the mistaken jury instruction

simply does not negate the prejudice from the erroneous instruction.

Therefore, we are constrained to vacate the judgment as to Hanover and

SGL, and remand for a new trial.

CONCLUSION

       Based on the forgoing, we affirm the entry of nonsuit to Kiddie

Academy, vacate the entry of nonsuit against Shan-Gri-La Sod Farm, vacate

the judgment in favor of Hanover and SGL, and remand for further

proceedings in accordance with this memorandum.11

       Nonsuit as to Kiddie Academy affirmed. Nonsuit as to Shan-Gri-La Sod

Farm vacated. Judgment vacated as to Hanover and SGL. Case remanded

for   proceedings in accordance     with this   memorandum.        Jurisdiction

relinquished.




11
  Because we remand for a new trial, the evidentiary issues presented in the
Creighton’s fourth issue are moot, and we do not consider them.



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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 7/17/20




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