J-A02004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GERALDINE SANTANGINI                                      IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellant

                       v.

BHAGVATI KRUPA, INC., T/A SUBWAY

                            Appellee                          No. 522 EDA 2016


                Appeal from the Order Entered January 12, 2016
              In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): January Term, 2015 No. 67


BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                    FILED FEBRUARY 28, 2017

        Geraldine Santangini appeals from the order entered on January 12,

2016, in the Court of Common Pleas of Philadelphia County, granting

summary      judgment       in   favor   of    Bhagvati    Krupa,   Inc.,   T/A   Subway

(“Subway”). In this timely appeal, Santangini raises two issues; she claims

the trial court erred in (1) failing to examine the evidence in the light most

favorable to her as the non-moving party, and (2) determining the alleged

defect in the restaurant required expert testimony to prove.                      After a

thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm on the basis of the trial court opinion, dated July

14, 2016.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A02004-17



      The underlying facts of this matter are easily related. On September

20, 2013, at approximately 2:45 p.m., Santangini went to the Subway

restaurant located at 106 S. 16th Street, Philadelphia.   Complaint, at ¶ 4.

The store required a patron to walk up two steps after entering in order to

approach the counter, which is located to the left of the entry doors. See

Photo Exhibits, Deposition of Santangini, 8/31/2015. There is a self-serve

soft drink dispenser located at the top of the two steps to the extreme right

of the restaurant. Id. The photo exhibits demonstrate if a patron walked

into the restaurant and straight up the steps, the patron would be at the soft

drink dispenser. Id. Santangini purchased a sandwich, cookie and a soft

drink. N.T. Deposition, 8/31/2015 at 20. She took the cup given to her at

the counter to the soft drink dispenser, located near the top of the two

steps. Id. She filled her cup, turned toward the front doors, took a step

and fell down the stairs, breaking her wrist.   Id., Complaint, at ¶¶ 7, 10.

Santangini filed suit against Subway, alleging the store was negligently

designed and had failed to give proper warning of the dangerous condition

created thereby.

      At the close of discovery, Santangini had provided no expert report

regarding the existence of an allegedly dangerous condition/negligent design

of the restaurant.   Subway filed a motion for summary judgment, arguing

expert testimony was required to inform the jury of the proper standards

regarding such allegations.   The trial court agreed and entered the order

currently on appeal before this panel.

                                    -2-
J-A02004-17



      Our standard of review regarding the grant of summary judgment is

well-settled, and is as follows:

      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 non-moving party bears the burden
      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 it bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law. Lastly, we will view 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.

Nobles v. Staples, Inc., 150 A.3d 110, 120 (Pa. Super. 2016) (citation

omitted).

       Here, the trial court reviewed the evidence, the complaint and the

motion and found that the question of negligent design, from which all

claims of injury flowed, required expert testimony.     We find no abuse of

discretion or error of law in that ruling.   In making our determination, we

rely upon the sound reasoning of the trial court as found in the Pa.R.A.P.

1925(a) opinion.    We note that the trial court did not specifically address

Santangini’s claim that the evidence was not viewed in the light most

favorable to her as the non-moving party. However, because the trial court


                                     -3-
J-A02004-17



correctly determined expert testimony was required to prove Subway’s

negligence, Santangini’s testimony regarding the design of the restaurant

alone cannot suffice.

      Order affirmed. The parties are directed to attach a copy of the trial

court opinion in the event of further proceedings.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2017




                                    -4-
                                                                                               Circulated 02/02/2017 10:39 AM




              THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                    FIRST JUDICIAL DISTRICT OF PENNSYLV 1\_1~H~.Ji.'.;. [ 'i                                  r: '.   ~ • r,
                                                                                                                      ;   .   •   ..
                               CIVIL TRIAL DIVISION


 GERALDINE SANTANGINI                                            PHILADELPHIA COUNTY
                Plaintiff,                                       COURT OF COMMON PLEAS

                  vs.                                           JANUARY TERM, 2015
                                                                NO. 0067
 BHAGVATI KRUPA, INC.
 t/a SUBWAY
                Defendant.


                                                  OPINION
Patrick, J,                                                                           DATE: July 14, 2016

         Plaintiff/Appellant,   Geraldine Santangini, filed an appeal from this Court's Order dated

January 12, 2016, granting Defendant's Motion for Summary Judgment. This Court now submits

the following Opinion in support of its ruling and in accordance with the requirements of Rule

 l 925(a) of the Pennsylvania Rules of Appellate Procedure.      For the reasons set forth below, this

Court's decision should be affirmed.


                                PROCEDURAL/FACTUAL HISTORY

        On September 20, 2013, Plaintiff, Geraldine Santangini, entered the Subway restaurant

located at 106 S. 16111 Street in Philadelphia.    After completing her purchase, Plaintiff walked to

the self-serve soda fountain and filled her drink. Plaintiff turned toward the exit door; she was

holding a sandwich and cookie in her left hand, a drink in her right hand, and had a handbag over

her shoulder. Plaintiff took a step and fell down two steps leading to the exit. Plaintiff sustained

injuries as a result of her fall.

                                                                    San1ang•ni Vs B/Jagval, Krupa Inc. TIA S•m,ay-OPFlD




                                                                    I/Ill 111111 /III II I IIII IIII I I Ill
                                                                            15010006700044
        On April 23, 2015, Plaintiff flied a Complaint against Defendant Bhagvati Krupa, Inc., t/a

 Subway, alleging that the Subway restaurant was defectively designed. Plaintiff contended that

 Defendant's negligence and carelessness consisted of:

        (a) Creating a hazardous and dangerous condition by having an unguarded ledge
        directly next to the self-service beverage;
        (b) Creating an overcrowded condition by improper design or overcrowding
        equipment into the available areas;
        (c) Failing to warn Plaintiff of the dangerous condition by signs or other safety
        warnings;
        (d) Failing to protect the Plaintiff and other business invitees by barricades, cones,
        barriers, retractable belts, stanchion rope, railings, fence and eye-catching paint or
        other safety devices;
        (e) Creating a large visual wall display consisting of signs attracting the attention
        of the business invitee Plaintiff diverting their attention from the surrounding areas;
        (f) Allowing the dangerous and unsafe condition to exist during business hours
       when business invitees would be present;
       (g) Placing a self-service area right next to a steep step drop off;
       (h) Designing the restaurant with a step drop off instead of a ramp or gradual
       incline;
       (i) Placing equipment in a way to disorient the patron business invitee;
       U) Failing to keep the premises reasonably safe for use by Plaintiff as a business
       invitee; and
       (k) Breach of duty of care to Plaintiff, a business invitee.

       On October 16, 2015, Defendant filed a Motion for Summary Judgment claiming that the

Plaintiff failed to set forth facts sufficient to impose liability. According to the Defendant, expert

testimony was required to establish that the Subway restaurant was defectively designed. Plaintiff

failed to produce an expert prior to the discovery and expert deadlines set forth in the Case

Management Order. Accordingly, Plaintiff could not make out a prima facie case of negligence

against the Defendant.

       On November 18, 2015, Plaintiff filed an Answer to Defendant's Motion for Summary

Judgment. Plaintiff argued that an expert was not necessary to establish negligence. According

to the Plaintiff, "the determination of whether the overcrowding [of] a small service area with

equipment and the placement of a self-service beverage machine directly next to and perpendicular

                                                 2
to a steep drop off created a dangerous condition is clearly within the knowledge and common

sense of a layperson." Moreover, Plaintiff argued that "[a] jury determination in this case that the

machine placement near the two level restaurant signage which drew patrons eyes away from the

danger and the unusual diagonal stairway in the small restaurant facility created a dangerous

condition would not be mere conjecture on the part of the jury."

       On January 12, 2016, this Court granted the Defendant's Motion for Summary Judgment.

Plaintiff filed a Notice of Appeal on February 10, 2016. On February 11, 2016, this Court ordered

Plaintiff to file a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.

l 925(b) within twenty-one days. Plaintiff filed a timely Statement of Matters Complained of on

Appeal on March 2, 2016.


                                              ISSUES

       Plaintiff/ Appellant,   Geraldine Santangini, raised the following issues in her l 925(b)

Statement of Matters Complained of on Appeal:

       1. The Court committed error of law and abused its discretion in finding that
          Plaintiff failed to establish facts sufficient to impose liability in this matter.

       2. The Court erred as a matter of law when it granted judgment where the record
          reveals a genuine issue of material fact as to causation and credibility in this
          negligence action, issues that should be determined by the jury.
      3. The Court committed error of law and abused its discretion in not recognizing
          a genuine issue of fact existed whether the placement of a self-service beverage
          machine directly next to a steep drop off was negligent.
      4. The Court committed error of law and abused its discretion in determining the
          issue of negligence and removing it from the province of the jury.

      5. The Court erred because the Record (The Complaint, Motion for Summary
          Judgment, Memo, Answer to Motion and Affidavit of Mrs. Santangini and
          pictures of the area) reveals many issues that a jury could determine imposes
          liability on the [D]efendant.
      6. The Court erred in not considering the facts contained in the Complaint,
         Motion, and Affidavit, and pictures, as required by Pa.R.C.P. No. 1035, in the

                                                 3
            light most favorable to the Plaintiff, the non-moving party who was a Business
            Invitee entitled to the very highest standard of care from the landowner, under
            the law.
        7. The Court's finding of a lack of factual basis for liability without notice or
           hearing when the issue before the Court was Defendant's claim that expert
           opinion was required was contrary to the law and deprived the Plaintiff of
           Procedural Due Process.


                                   STANDARD OF REVIEW

        The Superior Court of Pennsylvania's      scope of review of an order granting summary

judgment is plenary. Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798 (Pa.Super.2012).        The

Superior 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.

        In reviewing a trial court's grant of summary judgment, the Superior Court applies the same

standard as the trial court, reviewing all the evidence of record to determine whether there exists a

genuine issue of material fact. The Superior Court views 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. Only where there is no genuine issue as to any material fact

and it is clear that the moving party is entitled to a judgment as a matter of law will summary

judgment be entered. All doubts as to the existence of a genuine issue of a material fact must be

resolved against the moving party. JP Morgan Chase Bank, NA. v. Murray, 63 A.3d I 258, 1261-

62 (Pa.Super.2013) (quoting Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d

418, 429 (2001)).




                                                 4
                                            DISCUSSION

        On appeal, Plaintiff claims that this Court erred in granting the Defendant's Motion for

Summary Judgment. Plaintiff's claim must fail. Expert testimony is required to prove Plaintiffs

claim that the Subway restaurant was defectively designed. Since Plaintiff failed to produce an

expert prior to the discovery and expert deadlines set forth in the Case Management Order, Plaintiff

could not establish a prima facie case against the Defendant. Accordingly, summary judgment

was proper.

        The determination of whether expert evidence is required turns on whether the issue of

negligence in the particular case is one which is sufficiently clear so as to be determinable by

laypersons or concluded as a matter of law. Storm v. Golden, 538 A.2d 61, 64 (1988). "If all the

primary facts can be accurately described to a jury and if the jury is as capable of comprehending

and understanding such facts and drawing correct conclusions from them as are witnesses

possessed of special training, experience or observation, then there is no need for the testimony of

an expert." Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667, 670 (1967). This is precisely what

our Supreme Court found in McKenzie v. Cost Brothers, Inc., 409 A.2d 362 ( 1979).

        In Mckenzie, a workman at a construction site was installing a 900 pound, precast concrete

block, known as a lintel. The workman was unable to complete the installation by the end of the

workday on Friday; he intended to complete the installation the following Monday. "The lintel

was not left in the flush position, but rather supported by a brick. No mortar was placed to secure

the lintel to the brick nor to seal the void between the lintel and the wall." Id. at 363-64. Moreover,

no warnings were given. Id at 365. On Saturday, the Plaintiff, who was a bricklayer at the

construction site, "stepped on the unstable lintel and fell, incurring serious injury." Id. at 364. The

Supreme Court concluded that expert testimony was not required to establish industry custom.


                                                  5
The Court explained: "Nothing complex is involved in the present case.           One does not need

evidence of industry custom and practice to determine that a properly affixed warning, giving

notice of the lintel's unstable condition would have affected the outcome."    Id. at 366. Since the

issue of negligence was clear, expert testimony was not needed.

       If, on the other hand, the subject matter of the inquiry is one involving special skills and

training not common to the ordinary layperson, expert testimony becomes necessary. Brandon v.

Ryder Truck Rental, Inc., 34 A.3d 104, 108 (Pa.Super.2011 ). Numerous cases have expounded on

when expert testimony is indispensable.    Young v. Pennsylvania Dept. of Trans., 560 Pa. 373, 744

A.2d 1276 (2000) ( citation omitted). In one such case, Tennis v. Fedorwicz, 592 A.2d 116 ( 1991 ),

the Commonwealth Court of Pennsylvania held that expert testimony was necessary to prove

negligent design.

       In Tennis, Plaintiff was injured in a motor vehicle accident. Plaintiff filed suit against Old

Lycoming Township and the Department of Transportation CDepartment,,) alleging that the road

where the accident occurred was negligently designed. Id. at 116. The Department filed a Motion

for Summary Judgment, contending that expert testimony was necessary to support Plaintiff's

claim. The trial court granted the Department's Motion, concluding that «there were too many

factors for lay persons to make a reasoned decision regarding the safety of the intersection." Id.

at 117. Among the factors the trial court cited were "the curves and grade of the road, the angle at

which the roads intersect, safe stopping distance, material composition of the roadway and the

effect of the hillside upon the line of sight for both vehicles."   Id. The Commonwealth Court

agreed, finding that the testimony of an expert was indispensable for proving that the road was

negligently designed.




                                                 6
        Similarly, here, expert testimony was indispensable for proving Plaintiffs      claims against

the Defendant.      As mentioned above, Plaintiff claimed, in relevant part, that the Defendant's

negligence and carelessness consisted of (I) creating a hazardous and dangerous condition by

having an unguarded ledge directly next to the self-service beverage; (2) creating an overcrowded

condition by improper design or overcrowding equipment into available areas; (3) placing a self-

service area right next to a steep step drop off; ( 4) designing the restaurant with a step drop off

instead of a ramp or gradual incline; and (5) placing equipment in a way to disorient the patron

business invitee.    Like Tennis, too many variables existed for a layperson to make a reasoned

decision regarding the safety of the Subway restaurant; thus, explication by an expert is needed.

Since Plaintiff failed to produce an expert prior to the discovery and expert deadlines, Plaintiff

could not establish that the Subway restaurant was defectively designed. Without establishing that

a defect existed, Plaintiff could not prove that Defendant knew of the defect.           Accordingly,

summary judgment was proper.



                                           CONCLUSION

         For all the foregoing reasons, this Court respectfully requests that its judgment be affirmed

in its entirety.




                                                               BY THE COURT:




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