J-A26037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MICHELLE HEISER, F/K/A MICHELLE          :   IN THE SUPERIOR COURT OF
 VINCH                                    :        PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 LITTLE ENTERPRISES, L.P., A              :
 PENNSYLVANIA LIMITED                     :   No. 440 WDA 2019
 PARTNERSHIP                              :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 JOHN CARRICK, D/B/A MJ'S                 :
 LANDSCAPING                              :
                                          :
                                          :
 APPEAL OF: MICHELLE HEISER               :

             Appeal from the Order Entered February 26, 2019
  In the Court of Common Pleas of Cambria County Civil Division at No(s):
                               2015-2337


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 31, 2020

      Appellant, Michelle Heiser, appeals from the order entered on February

26, 2019, granting summary judgment in favor of Little Enterprises, L.P. (Little

Enterprises) and John Carrick, D/B/A MJ’s Landscaping (Carrick).          Upon

review, we vacate the order granting summary judgment and remand for trial.

      The trial court summarized the facts and procedural history of this case

as follows:
J-A26037-19


     This case arises out of [an] alleged slip and fall that Appellant
     suffered on February 6, 2014 at the DaVita Dialysis Center in the
     parking lot of the Budfield Plaza in Johnston, Pennsylvania. On
     that date, at approximately 4:15 a.m.[,] Appellant alleges she
     slipped and fell in the parking lot while cleaning the snow off her
     vehicle after her shift.      Appellant claims that she slipped,
     attempted to stand up, slipped again, and then proceeded to feel
     through the snow around her until she felt the ice underneath of
     her with her hand. It is undisputed that a snow storm occurred
     on February 5, 2014 and continued throughout the morning of
     February 6, 2014, such that there was an estimated four inches
     of snow already covering the parking lot upon Appellant’s arrival
     to work on the evening of February 5, 2014. Appellant believes
     that approximately another six inches of snow fell throughout the
     course of her shift at work that night. Appellant claims that Little
     Enterprises [], as owner of the Budfield Plaza, is liable for
     negligently maintaining the parking lot and for Appellant’s alleged
     injuries that resulted from the fall. Little Enterprises [] joined as
     an additional [d]efendant [] Carrick, as the snow and ice removal
     contractor of the Budfield Plaza. Carrick was contracted by Little
     Enterprises to make sure that the parking lot of the Plaza was
     completely maintained before patients started arriving in the
     morning. [Scott Little, the general partner of] Little Enterprises[,]
     testified at [a] deposition that [Little Enterprises] monitored the
     parking lot at all times during the winter months and that []
     Carrick is there to clean the parking lot every morning before 4:00
     a.m.

     [] Little Enterprises filed a [m]otion for [s]ummary [j]udgment on
     December 3, 2018. Subsequently, [] Carrick filed a [m]otion for
     [s]ummary [j]udgment on January 22, 2019 and [o]ral
     [a]rgument was held before the [c]ourt sitting en banc on
     February 15, 2019. Subsequently, the Honorable Judge Norman
     A. Krumenacker III and the Honorable Judge Patrick T. Kiniry
     granted [] Little Enterprises[’] and [] Carrick’s [m]otions for
     [s]ummary [j]udgment through an [o]pinion and [o]rder on
     February 26, 2019. [Appellant] then filed a [n]otice of [a]ppeal
     to [this] Court [] on March 21, 2019. [] Appellant filed her
     [s]tatement of [errors] [c]omplained of on [a]ppeal [pursuant to
     Pa.R.A.P. 1925(b)] on April 10, 2019. [The trial court issued an
     opinion pursuant to Pa.R.A.P. 1925(a) on May 3, 2019.]

Trial Court Opinion, 5/3/2019, at 1-2.


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J-A26037-19



       On appeal, Appellant presents the following issues for our review:

       I.     Whether the [t]rial [c]ourt erred in granting [] [m]otion[s]
              for [s]ummary [j]udgment [filed by Little Enterprises and
              Carrick] when it capriciously disregarded evidence adduced
              during discovery that the ice formation upon which
              [Appellant] fell was not due entirely to a natural
              accumulation, including, but not limited to, testimony that
              the drains of the parking lot were covered by snow pushed
              over them, pictures of pooled water and ice formations near
              the drains due to inadequate drainage, testimony by the
              snow plow operator that he did not pay attention to where
              the drains were located when he plowed the snow, that the
              ice formation was limited to a defined area near the drains,
              and the expert report of Ronald Eck, a [p]rofessional
              [e]ngineer?

       II.    Whether the [t]rial [c]ourt misapplied the standard of
              review for summary judgment by not providing [Appellant]
              the benefit of all reasonable inferences and resolving any
              doubts in her favor?

       III.   Whether the [t]rial [c]ourt misapplied the "hills and ridges"
              doctrine to this case to mean that a [p]laintiff cannot
              recover if she falls during an active storm regardless of
              whether the accumulation causing the fall was not of an
              entirely natural origin?

Appellant’s Brief at 4-5.1

       Appellant argues that the trial court erred in granting summary

judgment in favor of Little Enterprises and Carrick when it misapplied the hills

and ridges doctrine in this matter.            Id. at 22-24.   She maintains that the

doctrine of hills and ridges is only applicable when an icy condition is the result

of an entirely natural accumulation of snow and ice following a recent snowfall.
____________________________________________


1 Because these arguments are interrelated, challenging the grant of summary
judgment and the application of the doctrine of hills and ridges, we address
all of Appellant’s claims together.

                                           -3-
J-A26037-19



Id. at 22.      Here, Appellant claims that she presented evidence that the

conditions that led to her slip and fall were caused by the negligence of Little

Enterprises and Carrick and, thus, prohibited the application of the hills and

ridges doctrine. Id. at 25. In sum, Appellant posits:

      A genuine issue of material fact exists as to whether or not the ice
      upon which [] Appellant slipped was of an entirely natural
      accumulation or whether there was sufficient human interaction
      by [Little Enterprises and Carrick] to prohibit application of the
      ‘hills and ridges’ doctrine and thus the entry of summary judgment
      by the trial court against [] Appellant.

      First and foremost, [] Appellant adduced testimony and evidence
      concerning [] large walls of snow and ice that were created by
      [Carrick’s] snow plow [] at the edge of the parking lot which
      impeded the parking lot’s drainage system. Secondly, the trial
      court’s decision disregards evidence adduced of inadequate
      drainage and defects in the parking lot [surface] itself which
      caused water to pool at the edge of the parking lot in the vicinity
      in which [] Appellant slip[ped] and fell. Thirdly, the trial court’s
      decision disregards the expert report of [] Appellant’s engineer,
      Dr. Ronald W. Eck, P.E., Ph.D, who opines that human interaction,
      namely, the condition of the parking lot, the manner in which it
      was treated, and the lack of adequate drainage contributed to the
      accumulation of ice at the edge of the parking lot. Lastly, the
      lower court’s decision disregards [Carrick’s] testimony [] that he
      treated the parking lot prior to [] Appellant’s fall and evidence that
      such treatment was negligently performed.

Id. at 25-26.    As such, Appellant argues, “[a] reasonable inference from the

facts established by the record is that the snow pushed to the lower edge of

the parking lot by [] Carrick would mound and obstruct already defectively

graded drains causing water to pool and freeze when temperatures dropped

below freezing.” Id. at 28. Accordingly, Appellant claims that because there




                                      -4-
J-A26037-19



were genuine issues of material fact, it was improper for the trial court to

grant summary judgment.

      Our Supreme Court has stated:

      Our 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 non-moving party bears the burden
      of proof on an issue, [s]he may not merely rely on [her] pleadings
      or answers in order to survive summary judgment. Failure of a
      non-moving party to adduce sufficient evidence on an issue
      essential to [her] case and on which [she] 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.

Murphy v. Duquesne University of the Holy Ghost, 777 A.2d 418, 429

(Pa. 2001) (citations, quotations, and ellipses omitted).

      This Court has previously determined:

      The doctrine [of hills and ridges], 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 covered walks. The rule
      holds 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 climatic conditions in this hemisphere. In order to recover
      for a fall on an ice or snow covered sidewalk, a plaintiff must prove

                                      -5-
J-A26037-19


            (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; (3) that it was the dangerous accumulation
            of snow and ice which caused the plaintiff to fall. Absent
            proof of all such facts, plaintiff has no basis for recovery.

Wentz v. Pennswood Apartments, 518 A.2d 314, 316 (Pa. Super. 1986)

(internal citations omitted).

      “In Pennsylvania, as a general rule, there is no liability created by a

general slippery condition on the sidewalks. It must appear that there were

dangerous conditions due to ridges or elevations which were allowed to remain

for an unreasonable length of time, or were created by defendant's antecedent

negligence.” Bacsick v. Barnes, 341 A.2d 157, 160 (Pa. Super. 1975) (en

banc) (citation omitted; emphasis supplied). “The 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 we

reiterated that the protection afforded by the doctrine is predicated on the

assumption that these formations are natural phenomena incidental to our

climate.”      Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa.

Super. 2006) (internal quotations and citations omitted; emphasis in original).

      Moreover,

      [The] general hills and ridges rule is subject to a number of
      significant exceptions. Thus, proof 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 localized patch of
      ice. Nor is proof of hills and ridges required when an icy condition


                                        -6-
J-A26037-19


       is caused by the defendant's neglect, as where a city maintains a
       defective hydrant, water pipe, drain, or spigot.

Bacsick, 341 A.2d at 160.

       Upon review of the record, in this case, in response to the motions for

summary judgment, Appellant relied upon an expert report from Ronald W.

Eck, Ph.D., dated January 18, 2019. In making his assessment, Dr. Eck relied

upon photographs and video of the site, a site-grading plan, the various

pleadings filed in this matter, all of the deposition testimony taken, pedestrian

safety literature, and a personal site visit approximately 14 months after the

alleged accident.    In rendering his opinion, Dr. Eck further relied upon

photographs that he took while visiting the scene. Dr. Eck opined that settled

and depressed areas around the parking lot drains and plowed snow blocking

drainage inlets caused meltwater to pool on the surface of the edge of the

parking lot which then froze causing the conditions that led to Appellant’s fall.

Dr. Eck opined that such a condition constituted an unnatural accumulation of

ice.

       Our Supreme Court has held:

       It has long been Pennsylvania law that, while conclusions recorded
       by experts may be disputed, the credibility and weight attributed
       to those conclusions are not proper considerations at summary
       judgment; rather, such determinations reside in the sole province
       of the trier of fact[.] Accordingly, trial judges are required to pay
       deference to the conclusions of those who are in the best position
       to evaluate the merits of scientific theory and technique when
       ruling on the admissibility of scientific proof.

       At the summary judgment stage, a trial court is required to take
       all facts of record, and all reasonable inferences therefrom, in a
       light most favorable to the non-moving party. This clearly includes


                                       -7-
J-A26037-19


       all expert testimony and reports submitted by the non-moving
       party or provided during discovery; and, so long as the
       conclusions contained within those reports are sufficiently
       supported, the trial judge cannot sua sponte assail them in an
       order and opinion granting summary judgment. Contrarily, the
       trial judge must defer to those conclusions, and should those
       conclusions be disputed, resolution of that dispute must be left to
       the trier of fact.

Summers v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010) (internal

citations and quotations omitted).

       In this case, the trial court issued two opinions2 and neither opinion

addressed Dr. Eck’s report. Instead, the en banc trial court concluded:

       [T]he facts are undisputed that [Appellant] fell during an active
       snowstorm. [Appellant] admitted that it was snowing when she
       arrived at work the prior evening, and that the snow continued to
       fall throughout the course of her shift at work. Furthermore, there
       is no evidence in the record to support the theory that the ice on
       which [Appellant] fell was not due to natural accumulation, and
       likewise no evidence to support the claim that the drainage of the
       parking lot was in some way defective. In this situation, the
       snowstorm was still active and the parking lot had yet to be
       cleared by Carrick for the arrival of the morning patients.
       Therefore, because there was no evidence to show that [] Carrick
       neglected to care for the parking lot as he did on a normal basis
       during a snowstorm, summary judgment is appropriate.

Trial Court Opinion, 3/26/2019, at 5-6. The Rule 1925 opinion reached the

same conclusion. See Trial Court Opinion, 5/3/2019, at 4.

       Upon review, we conclude that the trial court erred as a matter of law

in granting the motions for summary judgment based upon the doctrine of
____________________________________________


2  As previously mentioned, the trial court, sitting en banc with Judges Norman
A. Krumenacker and Patrick T. Kiniry, issued a decision regarding the motions
for summary judgment on February 26, 2019. Judge Kiniry subsequently filed
a decision pursuant to Pa.R.A.P. 1925 on May 3, 2019.

                                           -8-
J-A26037-19



hills and ridges. As previously stated, the doctrine of hills and ridges is not

an absolute bar to recovery merely because an alleged injury occurs during a

snowstorm. There is still potential liability when the icy condition is created

by a defendant's antecedent negligence, such as improper maintenance of

drainage systems. In this case, Appellant presented an expert report from

Dr. Eck wherein he opined that there were defects around the parking lot

drains,3 and that plowed snow further blocked the drains, causing water to

pool and then freeze before the snow had fallen. This is a question of fact for

a jury to consider.4       Viewing the evidence in the light most favorable to

Appellant, as our standard of review requires, the trial court was simply not

permitted to disregard Appellant’s expert evidence and instead rely exclusively



____________________________________________


3  We briefly note that it is reasonable to infer that Little Enterprises would
have had notice of the drainage conditions since undisputed evidence
indicated that the parking lot’s condition was unchanged for some time.

4  Moreover, in her deposition, Appellant stated that she slipped and fell twice
in an area near the parking lot drains, but was able to traverse the rest of the
parking lot without incident. She claimed that she did not want to fall again,
so she crawled around and felt “slick and smooth” ice underneath the
approximately 10 inches of snow that had fallen. Appellant’s Deposition,
12/15/2016, at 30-31.       Appellant stated that once she felt pavement
underneath her, she stood up. Id. at 31. Moreover, in response to the
motions for summary judgment, Appellant also attached an affidavit from
herself. Therein, she claims that she “observed a snow/ice mound that was
approximately three (3) feet in height which ran the entire length of the lower
edge of the parking lot [and] covered the drains that are located [there].”
Appellant’s Affidavit, 2/11/2019, at ¶¶ 2-3. Appellant claims that she slipped
on smooth ice that was underneath the accumulation of new precipitation and
posits that parking lot drains were negligently maintained. This evidence
further creates an issue of material fact.

                                           -9-
J-A26037-19



upon the doctrine of hills and ridges to grant summary judgment in this

matter.

     Order vacated. Case remanded for trial. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2020




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