J-S44035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GELA DEMISEW,                                    :        IN THE SUPERIOR COURT OF
                                                 :              PENNSYLVANIA
                       Appellant                 :
                                                 :
                  v.                             :
                                                 :
COAKLEY & WILLIAMS HOTEL                         :
MANAGEMENT COMPANY                               :             No. 467 EDA 2017

                     Appeal from the Order Dated December 20, 2016
                  in the Court of Common Pleas of Montgomery County,
                             Civil Division, No(s): 2015-04906

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                                FILED AUGUST 15, 2017

       Gela Demisew (“Demisew”) appeals from the Order granting the

Motion      for    Summary    Judgment   filed       by   Coakley   &   Williams   Hotel

Management Company (“Coakley & Williams”). We affirm.

       In October 2013, Demisew and her sisters were staying at a Days Inn

Hotel, managed by Coakley & Williams, located in Horsham, Pennsylvania.

On October 16, 2013, Demisew slipped and fell down a stairwell in the Days

Inn.     Demisew indicated that one particular step on the stairwell was

slippery.     Demisew, who suffered a sprained ankle and other injuries,

reported the incident to hotel management the following day.

       In March 2015, Demisew filed a Complaint against Coakley & Williams,

asserting a negligence claim. In September 2015, Coakley & Williams filed a

Motion for Summary Judgment. Following a hearing, the trial court granted

the Motion for Summary Judgment. Demisew filed a timely Notice of Appeal
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and a court-ordered Pennsylvania Rule of Appellate Procedure 1925(b)

Concise Statement.

      On appeal, Demisew raises the following questions for our review:

      A. Whether the trial court abused its discretion and erred as a
         matter of law in granting [Coakley & Williams’s] Motion for
         Summary Judgment because [Demisew] has set forth
         sufficient evidence to establish a prima facie case of
         negligence?

      B. Whether the trial court abused its discretion and erred as a
         matter of law by failing to consider, or failing to give
         appropriate weight to, evidence and testimony from which a
         reasonable jury could conclude that [Demisew] has
         established prima facie proof that her fall was caused by
         [Coakley & Williams’s] negligent conduct?

      C. Whether the trial court abused its discretion and erred as a
         matter of law by relying on the Pennsylvania Supreme Court’s
         decision in Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998)[,]
         in granting [Coakley and Williams’s] Motion for Summary
         Judgment?

      D. Whether the trial court abused its discretion and erred as a
         matter of law by relying on the Pennsylvania Superior Court’s
         decision in Churilla v. Barner, 409 A.2d 83 (Pa. Super.
         1979)[,] in granting [Coakley and Williams’s] Motion for
         Summary Judgment?

Brief for Appellant at 3 (some capitalization omitted).

      We review a challenge to the entry of summary judgment 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


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     party is entitled to relief as a matter of law, summary judgment
     may be entered. Pa.R.C.P. 1035.2(1). 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 he bears
     the burden of proof establishes the entitlement of the moving
     party to judgment as a matter of law. Pa.R.C.P. 1035.2(2).
     Lastly, we will review the record in the light most favorable to
     the non-moving party, and all doubts as to the existence of a
     genuine issue of material fact must be resolved against the
     moving party.

Davis v. Wright, 156 A.3d 1261, 1266 (Pa. Super. 2017) (case citation and

brackets omitted).

     As Demisew’s claims are related, we will address them together.

Demisew contends that the trial court abused its discretion and erred as a

matter of law in granting the Motion for Summary Judgment, as she set

forth sufficient evidence to establish negligence. Brief for Appellant at 10,

14-15, 17-18, 21, 23-24. Demisew argues that Coakley & Williams owed a

duty to her, as a business invitee, to exercise reasonable care to discover

the slippery step. Id. at 10-11, 18-19, 20; see also id. at 19 (noting that

Demisew did not allege Coakley & Williams created or had actual notice of

the slippery step, but that Coakley & Williams had constructive notice and

should have exercised reasonable care). Demisew asserts that the evidence

proved the existence of a slippery step, and that Coakley & Williams only

cleaned the stairwell on a weekly or “as needed” basis. Id. at 11-12, 13,

17, 20; see also id. at 20-21 (wherein Demisew argues that the trial court

should have further considered Coakley & Williams’s representative’s


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testimony regarding the cleaning schedule as a jury should determine

whether the schedule was reasonable). Demisew additionally asserts that it

was raining on the day in question and that guests, who used the stairwell

on a frequent basis, could have tracked water onto the stairwell, creating the

dangerous condition.      Id. at 11, 12, 15, 20, 24.     Demisew argues that

contrary to the trial court’s finding, a liability expert was unnecessary in this

case, as a jury could decide the slip and fall matter without expert

testimony. Id. at 15, 17, 24. Demisew also contends that the trial court’s

reliance upon Martin and Churilla1 was misplaced. Id. at 21-23.

      “To prevail in a negligence action, the plaintiff must show that the

defendant had a duty to conform to a certain standard of conduct, that the

defendant breached that duty, that such breach caused the injury in

question, and actual loss or damage.” Barton v. Lowe’s Home Centers,

Inc., 124 A.3d 349, 359 (Pa. Super. 2015). The parties agree that Demisew

was an invitee on Coakley & Williams’s premises, and thus the following

legal principles apply:

      A possessor of land is subject to liability for physical harm
      caused to his invitees by a condition on the land if, but only if,
      he

        (a)   knows or by the exercise of reasonable care would
              discover the condition, and should realize that it

1
  Specifically, the trial court cited Martin for the proposition that “[t]he mere
occurrence of an accident does not establish negligence.”             Trial Court
Opinion, 2/24/17, at 3. The trial court cited Churilla for the proposition that
“[m]ere theories as to what may have transpired may not be employed as a
substitute for concrete evidence.” Id. at 2 (emphasis in original).


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              involves an unreasonable risk of harm to such invitees,
              and

        (b)   should expect that they will not discover or realize the
              danger, or will fail to protect themselves against it, and

        (c)   fails to exercise reasonable care to protect them
              against the danger.

      RESTATEMENT (2d) OF TORTS § 343. …

      [T]he mere existence of a harmful condition in a public place of
      business, or the mere happening of an accident due to such a
      condition is neither, in and of itself, evidence of a breach of the
      proprietor’s duty of care to his invitees, nor raises a presumption
      of negligence. In order to recover damages in a slip and fall
      case such as this, the invitee must present evidence[,] which
      proves that the store owner deviated in some way from his duty
      of reasonable care under the existing circumstances.           This
      evidence must show that the proprietor knew, or in the exercise
      of reasonable care should have known, of the existence of the
      harmful condition. Section 343 also requires the invitee to prove
      either that the store owner helped to create the harmful
      condition, or that it had actual or constructive notice of the
      condition.

Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1193 (Pa. Super. 2015)

(citation omitted).

      The record, viewed in a light most favorable to Demisew, establishes

that on October 16, 2013, Demisew was going down a stairwell in the Days

Inn and slipped on a step. N.T. (Demisew Deposition), 6/17/16, at 24-27.

Demisew described the steps as made of concrete with a metal lip, and

stated that the stairwell had railings on both sides of the steps. Id. at 20-

21; see also id. at 21 (wherein Demisew indicated that, prior to her slip,

she had no issues with the stairwell and that she did not notice any defects).



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Demisew additionally stated that people frequented the stairwell in question

due to its proximity to the parking lot.    Id. at 17-19, 22-23.     Demisew

stated that the weather on the day of her fall was misty.      Id. at 22, 24.

Thereafter, the following exchange occurred with regard to the stairwell in

question:

     Q. … So would it [be] fair to say then, ma’am, that you don’t
     know what it was that was on the stairs?

     A. Yeah, I guess that would be fair to say, sure.

     Q. Are you certain there was something on the stairs?

     A. It was definitely different than the rest of the stairs. Just for
     my own experience, it was like crystal or something. I don’t
     know. Don’t quote me on that, but I just mean it was like the
     viscosity, if you will, of the – the surface was completely
     different and treacherous compared to the other stairs that I
     stepped down on.

     Q. So what I’m gathering you’re telling me is that, based on
     what your foot felt like, you think there was something slippery
     on the stairs, but you never saw anything –

     A. Yes.

     Q. -- or you never felt anything with any other part of your
     body, other than your foot?

     A. I’m not sure what you mean.

     Q. Did you reach down with your hand and –

     A. Oh, no. I don’t think I touched it -- I don’t think I touched
     the actual stair, but I don’t recall.

     Q. Did you have anything on your clothing?

     A. Anything on my clothing?



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      Q. From what was on the stairs.

      A. I don’t believe so.

      Q. Okay. To your knowledge, did [your sister] ever go and look
      at the stairway where you slipped?

      A. I don’t believe she did. We kind of were focused on my pain.

Id. at 28-30.

      On October 17, 2013, Demisew reported the fall to the Days Inn

manager, who documented it in an incident report, which stated the

following:

      [] Demisew was checking out of room 339 at approximately 4:15
      [p.m.] today when she asked to talk to a manager.         When I
      went to talk with [Demisew], she told me that as she was
      coming down the stairwell yesterday, she felt a twist and heard a
      noise from her ankle. She said she did not think much about it
      at the time. Today she noticed her ankle was swollen and
      thought she should mention it to someone at the hotel before
      she checked out. She said it happened in the North stairwell on
      the landing between the 2nd and 3rd floors. She continued her
      check-out and left the hotel.

Incident Report, 10/17/13, at 3; see also N.T. (Demisew Deposition),

6/17/16, at 32.

      The director of maintenance at the Days Inn, Martin Flaherty

(“Flaherty”), stated that maintenance staff walked around the property twice

per day. N.T. (Flaherty Deposition), 6/17/16, at 15-18. Flaherty indicated

that the staff would complete a daily checklist, which included checking the

stairwells.   Id. at 18.   Flaherty also pointed out that the cleaning staff

cleaned the stairwell once per day.       Id. at 22.   Flaherty stated that



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according to the checklist, there were no issues with the stairwell in question

on October 16, 2013. Id. at 19.

      Viewing the record in a light most favorable to Demisew, as the non-

movant, we conclude that Demisew merely speculates as to the cause of the

slip and fall.   See Neve v. Insalaco’s, 771 A.2d 786, 790 (Pa. Super.

2001) (noting that “[n]either the mere existence of a harmful condition in a

store nor the mere happening of an accident due to such a condition

evidences a breach of the proprietor’s duty of care or raises a presumption

of negligence.”); Myers v. Penn Traffic Co., 606 A.2d 926, 930 (Pa. Super.

1992) (stating that in a summary judgment motion, “the non-moving party

must be given the benefit of all reasonable inferences,” but the party “need

not be given the benefit of inferences not supported by the record or of mere

speculation.”). Here, Demisew did not indicate what substance was on the

step or report any slippery substances or defects on the step in the incident

report. Moreover, Demisew did not produce any evidence as to how long the

step was slippery or that the hotel should have had constructive notice of

the alleged dangerous condition on the stairwell. Thus, Demisew could not

establish negligence and the trial court’s grant of summary judgment in

favor of Coakley & Williams was proper.     See Toro v. Fitness Int’l LLC,

150 A.3d 968, 977 (Pa. Super. 2016) (concluding that the trial court

properly granted summary judgment in favor of defendant where plaintiff

presented no evidence that defendant caused the floor to be wet, only



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speculated as to how the floor became wet, did not know how long the floor

was wet, did not demonstrate that defendant had actual or constructive

notice of the wet floor and thus, failed to satisfy his burden of proof as to his

negligence claim); see also Estate of Swift v. Ne. Hosp. of Phila., 690

A.2d 719, 722–23 (Pa. Super. 1997) (stating that the trial court properly

granted appellee’s motion for summary judgment where appellants failed to

demonstrate appellee had notice of the water on the floor, as the appellants

failed to present any evidence as to how the water came to be on the floor,

how long the water was on the floor, or that the area was not properly

maintained by the appellee’s staff). Based upon the foregoing, Demisew’s

claims are without merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017




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