J-A04043-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

RONALD AND SUSAN MEDVED,                 :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  Appellants             :
                                         :
                    v.                   :
                                         :
AUTO SHOWER II, INC.,                    :
                                         :
                  Appellee               :     No. 1128 WDA 2014

                 Appeal from the Order Entered June 17, 2014,
              in the Court of Common Pleas of Allegheny County,
                    Civil Division, at No(s): No. GD 12-7450

BEFORE:    BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED APRIL 02, 2015

     Ronald and Susan Medved (Appellants) appeal from the June 17, 2014

order granting summary judgment in favor of Auto Shower II, Inc. (Auto

Shower). We affirm.

     On April 27, 2012, Appellants filed a complaint against Auto Shower,

which owns and operates a self-service car wash facility. Therein, Appellants

alleged that, at approximately 5:00 p.m. on February 8, 2011, Mr. Medved

pulled his vehicle into a car wash bay in order to wash his vehicle.

Complaint, 4/27/2012, at ¶12.     Mr. Medved then exited his vehicle and

began walking toward a change machine located on the premises, at which

point he “slipped, slid and/or fell to the ground while he was attempting to

traverse the sidewalk[,] … which was in a dangerous, slippery, unsafe and

hazardous condition due to the existence of ice, thus sustaining severe and


*Retired Senior Judge assigned to the Superior Court.
J-A04043-15

serious personal injuries … .” Id. at ¶¶ 13-14. Appellants maintained that

the accident was caused by the negligence of Auto Shower in, inter alia,

allowing an accumulation of ice to exist on the premises, thereby creating a

dangerous condition. Id. at ¶16.

      Auto Shower eventually filed a motion for summary judgment. Among

other averments, Auto Shower alleged that Appellants had failed to produce

sufficient evidence establishing what actually caused Mr. Medved’s fall. On

June 17, 2014, the trial court entered an order granting summary judgment

in favor of Auto Shower and dismissing Appellants’ claims with prejudice.

Appellants timely filed a notice of appeal.

      Appellants present the following issues for our consideration:

      1. Whether the trial court properly granted summary judgment
         in favor of [Auto Shower] where genuine issues of material
         fact exist and where discovery had yet to close?

      2. Whether the trial court properly granted summary judgment
         where []Appellants offered direct and circumstantial evidence
         to establish that [Auto Shower] breached its duty to
         [Mr.] Medved, a business invitee, who slipped, fell and
         sustained injuries as a result of a dangerous condition, while
         present on [Auto Shower’s] business premises?

Appellants’ Brief at 4 (trial court answers omitted).

      Our standard of 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



                                     -2-
J-A04043-15

     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 nonmoving 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. 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.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 562-63 (Pa. Super. 2014)

(quoting Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super.

2008)).

     We begin our analysis mindful of the following. “The mere fact that an

accident occurred does not give rise to an inference that the injured person

was the victim of negligence.” Estate of Swift v. Northeastern Hosp. of

Phila., 690 A.2d 719, 722 (Pa. Super. 1997).       “To establish a cause of

action sounding in negligence, a party must demonstrate [he or she was]

owed a duty of care by the defendant, the defendant breached this duty, and

this breach resulted in injury and actual loss.” McCandless v. Edwards,

908 A.2d 900, 903 (Pa. Super. 2006).

     “The standard of care a possessor of land owes to one who enters

upon the land depends upon whether the latter is a trespasser, licensee, or

invitee.” Emge v. Hagosky, 712 A.2d 315, 317 (Pa. Super. 1998). In the

instant case, the parties do not dispute that Mr. Medved was a business



                                   -3-
J-A04043-15

invitee. “The duty owed to a business invitee is the highest duty owed to

any entrant upon land. The landowner is under an affirmative duty to protect

a business visitor not only against known dangers but also against those

which might be discovered with reasonable care.” Id. (citation omitted).

           Possessors of land owe a duty to protect invitees from
     foreseeable harm. With respect to conditions on the land which
     are known to or discoverable by the possessor, the possessor is
     subject to liability only if he,

           (a)   knows or by the exercise of reasonable care
                 would discover the condition, and should
                 realize that it involves an unreasonable risk of
                 harm to such invitee[s], 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.

Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983) (citations and

quotation marks omitted) (quoting Restatement (Second) of Torts § 343

(1965)).

     Appellants argue that, through Mr. Medved’s deposition testimony as

well as circumstantial evidence, they have presented evidence which could

establish that Mr. Medved’s fall was caused by the existence of black ice on

Auto Shower’s premises.    The trial court disagreed, reasoning that, as a

matter of law, Appellants failed to produce sufficient evidence establishing

not only what the specific defect was that caused Mr. Medved’s fall, but also




                                    -4-
J-A04043-15

how it was placed upon the ground and/or how long it may have existed

there. We agree with the trial court.

      With regard to the cause of his fall, Mr. Medved testified at his

deposition that he “got out of [his] truck, walk[ed] towards the change

machine, and then [he] just slipped on some black ice, and the next thing

you know, [he] was on the ground.” Deposition of Mr. Medved, 6/19/2013,

at 12. Later in the deposition, Mr. Medved repeated that he “slipped on ice[,

his] feet went out[, he] landed wrong[,] and [he] broke [his] leg.” Id. at

63-64.

      Notwithstanding these statements, however, Mr. Medved indicated

that he did not see any snow, salt, or ice on the ground on the day of the

incident.   Id. at 25, 27, 32, 49, 51, 57, 64, 67-68.      Mr. Medved further

indicated that, after he fell, he did not look in the area where he fell, though

he felt that his clothes were wet. Id. at 27. When asked if it was correct

that he had not done “any investigation or looking around or feeling around

to actually pinpoint whether or not that was a patch of ice that [he] fell on,

but [that] it was an assumption on [his] part,” Mr. Medved stated that was

correct. Id. at 45. Mr. Medved further indicated as follows:

      I don’t know if it’s black ice you want to call it or what you want
      to call it, but I was being careful and just walking like I always
      do, and I’m not a clumsy person, and I just -- I hit something
      that took my feet out from me, and that’s all that really
      happened.




                                     -5-
J-A04043-15

      … I’m just telling you that I slipped, and … I mean, I really have
      nothing else to say about it other than that.

Id. at 67-68.

      Moreover, Mr. Medved testified as follows with regard to other possible

causes of his fall:

      Q. And you don’t -- you can’t be sure that it might have been
         soapy water you slipped on, correct?

      A. Absolutely not.

      Q. And how do you know that?

      A. Because of the way -- there’s no way you can slip like that on
         soapy water. There’s no soapy water -- how could there be
         soapy water in that bay when I didn’t even wash my truck
         yet? My truck wasn’t even washed yet. That bay was
         empty. There was no soapy water. There’s a drain there.
         How can there be soapy water out here (indicating)? There’s
         no way that could have been soapy water, sir. That’s my
         opinion. No way. Not the way -- that’s my opinion.

      Q. You don’t know whether it could have been oil from a leaking
         vehicle, do you?

            [Counsel for Appellants]: I’m going to object as leading.

            [Counsel for Appellee]: This is cross-exam.

            [Counsel for Appellants]:   Okay. You’re going to place
                                        your objections; I’m going to
                                        place mine.    It’s a leading
                                        question.

            [Counsel for Appellee]: I agree.

      A: You want me to -- what do you want me -- you want me to
         say could it have been oil? I don’t believe it was oil.

      Q: But you don’t know one way or the other, do you?



                                    -6-
J-A04043-15



      A:   No.

      Q: There was a slippery substance that you encountered, and
         your feet went out from under you, correct?

      A:   Yes.

      Q: Beyond that, you don’t know what that substance was other
         than speculation or assumptions, right?

      A.   Correct, or what the other witness had to say as far as -- I
           mean, I don’t know if he said it was oil. I don’t know. I’m
           just telling you I slipped on something going to the change
           machine. That’s the best I can -- I mean, I could sit here,
           you know, and -- believe me, sir, that’s the best I can tell
           you.

Id. at 68-70.

      Upon review, we agree with the trial court that Mr. Medved’s

deposition testimony is insufficient to establish the cause of his fall, whether

it was the existence of black ice or any other condition on the premises.

Rather, the deposition testimony reveals that Mr. Medved merely believed

that black ice caused his slip and fall. As correctly noted by the trial court,

Appellants are “entitled to all reasonable inferences; however, reasonable

inferences must be drawn from competent evidence and not mere

speculation.” Trial Court Opinion (TCO), 7/29/2014, at 2. See also Myers

v. Penn Traffic Co., 606 A.2d 926, 930 (Pa. Super. 1992) (“Although the

non-moving party must be given the benefit of all reasonable inferences,




                                     -7-
J-A04043-15

that party need not be given the benefit of inferences not supported by the

record or of mere speculation.”).1

      Appellants also cite portions of a summary statement given by Jerry

Sabo, a patron of the car wash who had assisted Mr. Medved after his fall, to

investigator Beth Modrak as further evidence establishing that black ice

caused Mr. Medved’s fall. These portions, which were read by Mr. Medved

during his deposition, indicated that it was “slippery” and “icy” in the area of

Mr. Medved and his vehicle and that there was ice on the ground where Mr.

Medved fell. Deposition of Mr. Medved, 6/19/2013, at 53-54.

      Even assuming that such evidence would be admissible,2 we conclude

that it does not enable Appellants to prevail. “An invitee must prove either

the proprietor of the land had a hand in creating the harmful condition, or he

had actual or constructive notice of such condition.” Estate of Swift, 690

A.2d at 722.     As explained by the trial court, Appellants produced no

evidence of record “concerning the circumstances by which the ice or other

slippery substance upon which [Mr. Medved] might have slipped and fallen


1
   Furthermore, we are unpersuaded by Appellants’ argument that Auto
Shower’s alleged knowledge that “ice was likely to form on the grounds of
the car wash” based upon the weather conditions at the time of the incident
constitutes circumstantial evidence establishing that black ice was the cause
of Mr. Medved’s fall.
2
  Auto Shower asserts that Appellants’ contention based on the summary
statement is an attempt to argue matters outside of the record that
constitute double hearsay and thus may not be considered.



                                     -8-
J-A04043-15

was placed upon the ground, and/or how long it may have existed.” TCO,

7/29/2014, at 2.   Thus, Appellants have failed to show that Auto Shower

either created the allegedly dangerous condition which caused Mr. Medved’s

fall or had actual or constructive notice of it. See Estate of Swift, 690 A.2d

at 722 (holding that, although the appellants had presented evidence that

the decedent’s fall was caused by water on the floor, the appellants could

not establish a breach of duty because they failed to produce evidence

showing the appellee had notice of the condition, how the water arrived on

the floor, and how long the condition existed; thus, summary judgment was

proper).

      Because Appellants failed to present sufficient evidence to sustain their

cause of action,3 the trial court did not err in granting summary judgment in

favor of Auto Shower. Accordingly, we affirm the trial court’s order.

      Order affirmed.




3
  Appellants contend that, at the time the trial court granted summary
judgment, discovery had not yet closed and several key depositions still
needed to be conducted; thus, the trial court’s decision resulted in prejudice
to them by foreclosing further discovery. Appellants did not argue before
the trial court that the grant of summary judgment was premature because
there was outstanding discovery and, thus, this argument is waived. See
Payton v. Pennsylvania Sling Co., 710 A.2d 1221, 1226 (Pa. Super.
1998) (holding that, by failing to evoke Pa.R.C.P. 1035.3(b) in the court
below by stating that the appellant “wished to supplement the record or that
outstanding discovery could yield additional helpful information,” the
appellant waived the claim for purposes of appellate review).




                                     -9-
J-A04043-15

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 4/2/2015




                          - 10 -
