J-A16011-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    RUTH TOSIC,                                    IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellant

                        v.

    JAMES COLEY, BERYL COLEY,
    CHRISTOPHER COLEY, HOME REAL
    ESTATE & DEVELOPMENT COMPANY AND
    CHARLES BUSSEY,

                             Appellees                No. 3475 EDA 2017


               Appeal from the Order Entered September 21, 2017
              In the Court of Common Pleas of Philadelphia County
                        Civil Division at No(s): 151203011


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 24, 2018

        Appellant, Ruth Tosic, appeals from the September 21, 2017 order

granting summary judgment in favor of Appellees, James Coley and Beryl

Coley (collectively “the Coleys”), and dismissing all of her claims against the

Coleys with prejudice.1 After careful review, we affirm.

        In its Pa.R.A.P. 1925(a) opinion, the trial court set forth the relevant

facts and procedural history of this matter as follows:

____________________________________________


1 The Coleys joined Home Real Estate & Development Company and Charles
Bussey (collectively “Additional Defendants”) as additional defendants in the
underlying negligence action; however, Additional Defendants are not parties
to the Coleys’ motion for summary judgment. Additional Defendants filed a
separate motion for summary judgment on May 25, 2017, which was denied
by the trial court on September 21, 2017.
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             In January [of] 2014, [Appellant] was working as a certified
     nurse [sic] aide. Her work included on-site home visits with
     clients. On the morning of January 10[, 2014], she left her house
     to conduct home visits. Weather and sidewalk conditions were
     “slippery” at the time. She walked from her home to a bus stop,
     and she was “slipping and sliding” on the sidewalk along the way.
     She took the bus, walked to a coffee shop, and then walked to her
     first client’s house, arriving at approximately 8:00 a.m. She had
     had difficulty making her way there because the sidewalks were
     slippery. She left her first client around 10:00 a.m. and headed
     towards the subway, which she intended to take to her second
     client visit. She walked through her first client’s neighborhood,
     which was controlled by Philadelphia Housing Authority, and which
     had treated its sidewalks for ice. However, when she reached
     2301 North Park Street [(“the Property”)], the sidewalk had
     apparently not been treated and was “covered” with ice. She
     slipped and fell on the sidewalk in front of [the] [P]roperty,
     injuring herself.

            [The Property] was (and presumably still is) jointly owned
     by [the Coleys], out-of-state landlords who leased units [located
     on] the [P]roperty. The parties do not dispute that neither [the
     Coleys] nor their agents had shoveled or treated the sidewalk for
     ice or snow that morning. [Appellant] sued [the Coleys], alleging
     “[n]egligence and [c]arelessness” for failing to timely inspect the
     sidewalk, remove the icy condition, have a person on-site to
     monitor and treat the sidewalk, and/or warn pedestrians of the icy
     condition.

            The Coley[s] … moved for summary judgment, arguing that
     the uncontroverted evidence showed that the icy condition at the
     time of the fall was due to the continuing freezing rain, and not to
     a previous precipitation event that had resulted in ice formation
     and/or accumulation. [The Coleys] asserted that, because the
     freezing rain condition was ongoing at the time of the fall, [they]
     did not have a duty to treat the sidewalk under the relevant
     Philadelphia snow removal ordinance until after the precipitation
     had ceased. Lastly, [the Coleys] contended that they were
     entitled to summary judgment because [Appellant] had failed to
     meet the requirements of the “hills and ridges” doctrine.

           [Appellant] responded that [the Coleys] “breached their
     duty as property owners by failing to either delegate the duties of
     snow and ice removal to a third-party or to establish any sort of
     plan or mechanism[,] which[] would be implemented in

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      anticipation of wintry weather.” She also argued that “piles of
      frozen snow and ice” remained in the walkway as a result of prior
      snow-shoveling, and that these piles satisfied the requirements of
      the “hills and ridges” doctrine. Lastly, she contended that [the
      Coleys’] standard of care was established not by the city snow-
      removal ordinance, but by the “unrebutted evidence of
      neighboring landowner, the Philadelphia Housing Authority who
      [sic] had treated [its] sidewalks with salt and/or chemical
      compound, which demonstrates the type of plan or mechanism
      that is required to be in place by landowners during an impending
      forecast of wintry precipitation.”

            The [c]ourt considered the motion, responses, and
      evidence, and granted [the Coleys] summary judgment [on
      September 21, 2017]. [Appellant] then brought the instant
      appeal.

Trial Court Opinion (“TCO”), 2/21/18, 1-2 (citation to record and footnote

omitted).

      Herein, Appellant raises the following issues for our review:

      I.    Whether the lower court committed an error of law or abuse
            of discretion when it held that there was no genuine issue
            of material fact to overcome [the Coleys’] Motion for
            Summary Judgment?

      II.   Where the lower court committed an error of law or abuse
            of discretion when it applied the “hills and ridges” doctrine
            and failed to consider facts in evidence which support that
            the ice formation on [the Property’s] sidewalk was not
            created by an “entirely natural accumulation,” and thus is
            an exception to the “hills and ridges” doctrine?

Appellant’s Brief at 4.

      Our standard of review with respect to a trial court’s decision to grant

or deny 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.


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     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.

Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citations

omitted).

     Here, in granting the Coleys’ motion for summary judgment, the trial

court relied on the “hills and ridges” doctrine, “a long standing and well

entrenched 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 unreasonably accumulate in

ridges or elevations.”   Biernacki v. Presque Isle Condominiums Unit

Owners Ass’n, Inc., 828 A.2d 1114, 1116 (Pa. Super. 2003) (quoting Morin

v. Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1087 (Pa. Super. 1997)).

     [T]he doctrine of hills and ridges provides that an owner or
     occupier of land is not liable for general slippery conditions, for to
     require that one’s walks be always free of ice and snow would be
     to impose an impossible burden in view of the climactic conditions
     in this hemisphere. Snow and ice upon a pavement create merely
     transient danger, and the only duty upon the property owner or
     tenant is to act within a reasonable time after notice to remove it
     when it is in a dangerous condition.


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Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa. Super. 2006)

(quoting Harmotta v. Bender, 601 A.2d 837, 841 (Pa. Super. 1992)). We

have further stated:

      [T]he “hills and ridges” doctrine may be applied only in cases
      where the snow and ice complained of are the result of an entirely
      natural accumulation, following a recent snowfall, as … the
      protection afforded by the doctrine is predicated on the
      assumption that these formations are natural phenomena
      incidental to our climate.

Id. (emphasis in original) (internal citations and quotation marks omitted).

Additionally, the doctrine of “hills and ridges” will not prevent a plaintiff’s

recovery when the hazard is not the result of a general slippery condition

prevailing in the community, but of a localized patch of ice.         Bacsick v.

Barnes, 341 A.2d 157, 160 (Pa. Super. 1975).

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

must demonstrate:

      (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 traveling
      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.

Biernacki, 828 A.2d at 1117 (quoting Morin, 704 A.2d at 1088). “Absent

proof of all such facts, a plaintiff has no basis for recovery.”       Rinaldi v.

Levine, 176 A.2d 623, 625 (Pa. Super. 1962) (emphasis in original).

      Instantly, Appellant argues that “a genuine issue of material fact exists

as to whether the ice formation on the sidewalk in front of [the Coleys’]


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J-A16011-18



[P]roperty was entirely the result of natural accumulation or whether human

intervention was responsible for [the] ice formation.” Appellant’s Brief at 10.

Appellant further asserts that if it is determined that she fell on ice that was

not an “entirely natural condition[,]” then the “hills and ridges” doctrine should

not be applied. Id. at 17. After careful review, we conclude that the record

belies Appellant’s contention that a genuine issue of material fact exists, and

we uphold the trial court’s application of the “hills and ridges” doctrine in this

case.

        In its opinion, the trial court summarized the following expert testimony

on which it based its decision:

        [Appellant’s] and [the Coleys’] respective expert meteorologists
        agree about all major factual issues in the case. [Appellant’s]
        expert, Dick Mancini, opined that the most recent snowfall had
        been on January 2nd-3rd, which left a six-inch snow accumulation
        on the ground by the 4th. This was followed by a rise in
        temperature on January 5th and 6th, along with rain that rapidly
        deteriorated the snow-cover. Mr. Mancini stated[:] “The ground
        accumulation was near zero by the 7th. There would have
        remained piles of plowed/shoveled snow.” The temperature
        dropped again on the 7th through the 9th, although without
        accompanying precipitation. Regarding the specific date of the
        incident, the 10th, Mr. Mancini opined that the first precipitation
        event of the day “began near 7:30 a.m… in the form of freezing
        rain with air temperatures of about 32 degrees. Due to the cold
        antecedent temperatures, pavements/sidewalks would have
        become icy almost immediately.” He specifically opined regarding
        causation: “In summary, ‘black ice’ had started forming near, or
        a short time after, 7:30 a.m., creating the slippery platform that
        caused [Appellant] to slip and fall several hours later.” ... The
        report does not contain any description of the black ice platform,
        or of its depth, height, shape, etc.

             Mr. Mancini’s statement, “There would have remained piles
        of plowed/shoveled snow,” forms the crux of [Appellant’s]


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      argument, as discussed more herein. The report does not make
      any further mention of snow piles or ice formations that were left
      over on the sidewalk surface from the January 2nd-3rd snowfall.
      He does not state that any specific piles or formations existed, or
      that any such piles had any causal relationship to the “slippery
      platform of black ice” on which [Appellant] slipped.

             [The Coleys’] meteorologist, Matthew Potter, also produced
      an expert report. Mr. Potter agreed with Mr. Mancini’s assertion
      that the ground accumulation prior to that morning’s freezing rain
      was near zero, measuring it as “approximately a trace, less than
      0.1 inches, of snow and sleet accumulated.” He [did] disagree
      with Mr. Mancini regarding how much prior precipitation there had
      been that morning: Mr. Mancini stated that precipitation “began
      with” the freezing rain around 7:30 a.m., whereas Mr. Potter
      stated that there had already been precipitation earlier that
      morning, in the form of “scattered flurries and/or light snow” that
      eventually mixed with rain and became freezing rain between
      6:00 a.m. and 8:00 a.m. Mr. Potter also stated that “[l]ight rain
      and pockets of freezing rain fell through the time of the incident,
      10:15 a.m., and ended between 11:30 [a.m.] and 12 p.m.” He
      averred, “Since the winter storm began, a trace, less than 0.1
      inches, of snow and sleet fell, along with a trace to 0.10 inches of
      ice accretion from the freezing rain. A Freezing Rain Advisory was
      in effect.”

            Mr. Potter agreed that “the ice on the sidewalk [Appellant]
      slipped and fell on was from the ongoing winter storm on January
      10, 2014. Our review of Mr. Potter’s report reveals no mention of
      snow piles or banks, from shoveling/plowing or any other activity.

TCO at 4-6 (citations to record omitted) (emphasis in original).

      Furthermore, Appellant stated in her deposition that,

      the sidewalk where she fell was “covered with” “smooth” ice.
      When pressed, she specifically stated that the sidewalk was
      “covered with ice” and differentiated this from localized ice
      “patches.”     She also testified, “I laid there and waited for
      somebody. I couldn’t get up…. There was ice all around me. I
      really physically tried to get up, but I couldn’t.” She was able to
      get up after “ten minutes or longer” when a passerby eventually
      assisted her. [Appellant] did not produce any evidence that
      specifically averred she fell on a patch of ice. She also specifically
      testified that there was no snow on the ground, only ice. Our

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      review of her deposition testimony shows no mention whatsoever
      of snow piles or banks caused by plowing or shoveling. We also
      fail to find any statements in her deposition about anyone
      shoveling in the neighborhood in the week prior.

Id. at 6 (citations to record omitted).

      In light of the evidence of record, the trial court provided the following

rationale for its decision:

            [Appellant] relies exclusively on Mr. Mancini’s statement,
      “There would have remained piles of plowed/shoveled snow,” in
      conjunction with his statements about the fluctuating
      temperatures in the preceding days, to assert that [Appellant]
      must have slipped on a pile of shoveled snow that must have
      existed from the prior snowfall, because the temperature changes
      must have caused the piles to melt and then re-freeze, and thus
      a re-frozen patch must have been responsible for [Appellant’s]
      fall. We found this factual assertion to be an unsupported
      extrapolation from the plain language of Mr. Mancini’s report, as
      Mr. Mancini did not at any time opine on the effects of the
      fluctuating temperatures on the piles of snow that may or may not
      have been present on the sidewalk at the time. [Appellant] did
      not testify that any such pile existed or that she slipped on any
      such accumulation.

             [Appellant’s] deposition testimony, [Appellant’s] expert
      meteorologist report, and [the Coleys’] expert meteorologist
      report all agree that [Appellant] slipped on a flat surface of black
      ice formed by the freezing rain that was ongoing at the time of
      the incident. Both experts opine that the leftover accumulation
      from the prior January 2nd-3rd winter storm was “near zero” or
      “less than 0.1 inches.” Our review of [Appellant’s] deposition does
      not show any discussion of snow piles or banks, or any assertions
      that people in her client’s neighborhood had shoveled snow since
      the prior storm, or that any such piles were present on the
      sidewalk. Both experts specify that the ice on which [Appellant]
      slipped had been formed sometime that morning, which
      contradicts [Appellant’s] assertion that the ice had formed a few
      days prior. Mr. Mancini does not specifically opine about the
      measure of ice accretion that would have formed by 10:15 a.m.,
      as his only measurement is his statements regarding accretions
      prior to January 8th; however, Mr. Potter opines that accretion at


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      the time of the incident measured 0.1 inches or less. Both agree
      that a Freezing Rain Advisory was in effect at the time.

            Based on the above, we found that [Appellant] fell due to a
      “generally icy condition.” We did not find any evidence in the
      record that the ice was anything other than a “natural”
      accumulation, as the evidence showed it was created by the
      ongoing freezing rain.      We found no evidence of “human
      intervention” from plowing or shoveling. See Harvey …, 901 A.2d
      [at] 527 … (holding that the doctrine did not apply when there
      was “undisputed evidence” that plowing had occurred between the
      cessation of snowfall and the accident, and holding that the black
      ice therefore “could not have been the result of an entirely natural
      accumulation”). Because of this finding, the “hills and ridges
      doctrine” applies.

             When the doctrine applies, a plaintiff is required to show
      that the defendant had “unreasonably allowed” an accumulation
      to form in ridges or elevations that unreasonably and dangerously
      obstructed the plaintiff’s path, and that such an accumulation
      caused her fall. [Appellant] has adduced no evidence that the ice
      had existed for any significant period of time, since the freezing
      rain was ongoing at the time of her fall. [Appellant] also adduced
      no evidence that [the Coleys] had notice of the icy condition and
      failed to remove it. Thus, we found that [the Coleys] were entitled
      to summary judgment as a matter of law.

Id. at 7-8. (citations to record omitted) (emphasis added).

      After careful review, we agree with the trial court that the record

contains no evidence that Appellant slipped on anything other than a natural

accumulation of ice. Moreover, we agree that Appellant has failed to establish

that there was any ridge or elevation that would unreasonably obstruct travel.

In fact, as noted by the trial court, supra, Appellant herself testified that the

sidewalk where she fell was covered with smooth ice.           Appellant’s own

testimony only further supports the finding that she fell due to “generally icy

conditions.”



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      For the reasons stated above, we conclude that Appellant failed to

establish a genuine issue of material fact. Accordingly, we discern no error of

law or abuse of discretion by the trial court, and we affirm the order granting

the Coleys’ motion for summary judgment.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/18




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