J-A09022-14


NON-PRECEDENTIAL DECISION                      SEE SUPERIOR COURT I.O.P 65.37

TRACY TRUAX,                                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellant

                       v.

TANYA P. ROULHAC, WILDWOOD 115,
INC. AND SILVIO VITIELLO,

                            Appellees                     No. 1797 EDA 2013


                 Appeal from the Order Entered June 11, 2013
                In the Court of Common Pleas of Monroe County
                     Civil Division at No(s): 9958 Civil 2010


BEFORE: BOWES, OTT, and JENKINS, JJ.

DISSENTING MEMORANDUM BY BOWES, J.:                  FILED SEPTEMBER 24, 2014

       I agree with my distinguished colleagues that Ms. Truax was a




care to protect her from the foreseeable misconduct of third parties.1 See

____________________________________________


1
   The duty that a possessor of land owes to an invitee is "the highest duty
                                    See Gillingham v. Consol Energy, Inc.,
51 A.3d 841, 850 (Pa.Super. 2012) (quoting Gutteridge v. A.P. Green
Services, Inc., 804 A.2d 643, 656. (Pa.Super. 2002)). "The landowner
must protect an invitee not only against known dangers, but also against
those which might be di                                      Id
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 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,
(Footnote Continued Next Page)
J-A09022-14


Restatement (Second) of Torts, § 344. However, the majority affirms the

entry of summary judgment in favor of Mr. Vitiello and Wildwood on a

ground that was neither raised below nor relied upon by the trial court. 2 It

fin

relate the appropriate engineering standards for the design of a parking lot



standards. Majority Memorandum, 7/24/14, at 7-8. I believe the majority

applied the wrong legal standard in determining the sufficiency of expert

testimony, and hence, I dissent.             For the reasons that follow, I would

reverse the order granting summary judgment and remand for further

proceedings.



                       _______________________
(Footnote Continued)

and (c) fails to exercise reasonable care to protect them against the
         Id. (quoting Restatement (Second) of Torts § 343).
2
  I would also reverse the grant of summary judgment due to the incorrect
rationale of the trial court. The trial court erroneously defined the possessor
                                                     ts herein as a duty to erect
vertical bollards. Then it concluded, as a matter of law, that since no
Pennsylvania court has held that a business owner was negligent for failing
to install vertical bollards in addition to wheel stops, it would not do so here.
I believe Appellees, as possessors of land, were obligated to use the highest
degree of care to protect Ms. Truax from injury due to defects on their
property. In addition, they had a duty of reasonable care to protect her
from the foreseeable intentional and negligent conduct of third parties while
she was on their property. There is evidence in the record from which one
can reasonably infer that Appellees knew or had notice of the danger but
failed to take reasonable steps to alleviate it. The issue should have been
presented to the jury.



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     While this Court may affirm on any basis supported by the record, I do

not believe that summary judgment should be affirmed on a ground that

was not articulated in the trial court, and, consequently, upon a record that

was not fully developed. This result is tantamount to an ambush. Had this

basis for summary judgment been asserted below, Ms. Truax arguably could

have provided a supplemental expert report or proffered additional evidence

to cure any perceived deficiency.

     I believe the majorit




ignores the very essence and purpose of expert testimony.       We not only

permit persons qualified by their knowledge, education, and experience to

render opinions as experts regarding the standard of care and breach of that

standard, we require it in many instances. See Medical Care Availability and

Reduction of Error (MCare) Act, 40 P.S. § 1303.512 (governing expert

qualifications in medical negligence cases).      The expert opinion itself



the standard of care is evidence just as competent as evidence of

engineering standards.



lacked curbs four to six inches in height separating the parking lot spaces

from the sidewalk. Where the parking spaces met the sidewalk, there were


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no bollards, which are concrete or metal vertical posts that act as a barrier

to vehicles, although bollards were used to protect a well on the property.

Five-inch concrete wheel stops defining the end of the parking spaces

provided the only protection for pedestrians using the sidewalk.      It was

undisputed that the Roulhac vehicle, a van, was undeterred by the wheel

stops when it drove onto the sidewalk and struck Ms. Truax.

      The expert also noted visible damage to one of the bumped-out

sections of the building, which he opined was caused by a motor vehicle.

One could reasonably infer from such evidence that a motor vehicle had

previously encroached beyond the parking spaces and that the possessors of

land had prior notice of the danger and the inadequacy of wheel stops as a

precaution.   Based on his inspection of the property, his education,

experience, and knowledge, the expert opined to a reasonable degree of

professional certainty that in order to meet the standard of care,

                                  continuous and separated from the
      parking field with vertical curb at sidewalk of at least 5 inches
      and bollards would have been installed to protect pedestrians in
      the same way that they have been installed on site to protect




      The majority mistakenly holds that the expert was required to




deviated from the standard, and how the deviation led to the injuries in


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question, all to a reasonable degree of engineering certainty.         Majority

Memorandum, 7/24/14, at 7.        It reasons that since the expert failed to

provide engineering standards for parking lot design, he obviously failed to

establish a deviation from those standards, and thus, there was no evidence

of breach.

      The majority confuses engineering standards with the standard of

care. Industry standards and safety codes are not the conclusive factors in

determining   negligence,   but   merely   provide   some   evidence   of   the

appropriate standard of care.      McKenzie v. Cost Brothers, Inc. v.

Dickerson Structural Concrete Corp., 409 A.2d 362 (Pa. 1979).               The

record is silent on whether engineering standards exist for the use of wheel

stops or bollards in parking lots. Nonetheless, the standard of care can be

supplied by a qualified expert, as was the case herein, provided the opinion

has an adequate basis in fact.     Gillingham v. Consol Energy, Inc., 51

A.3d 841, 849 (Pa.Super. 2012).

case was his personal inspection of the site, and his knowledge, education,

and experience in the field of engineering.

      Finally, in reaching its conclusion, the majority failed to view the

expert report and other evidence of record in the light most favorable to the

non-moving party in derogation of our standard of review. Not only did Ms.

                                                                        c., she

also submitted the affidavit of William Breuer, a gentleman who has


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operated a strip mall for forty-two years that is located to the south of Madd



posts, also known as bollards, between the head-on parking area and the

sidewalk that runs in front of his strip mall. He recited in his affidavit that



head-                                                      Affidavit of William



Summary Judgment Exhibit D1.       He recalled that, in the past, there were



head-on parking spaces.     Id.   The rocks were removed after a vehicle

pushed one of the rocks into the building.     Id.   He also noted that posts



location to protect pedestrians. Id.

        One can reasonably inf

only foreseeable motor vehicles would encroach on the sidewalk, but that it

had previously occurred on the subject premises.       As a similarly situated

possessor of land who holds his property open to the public, and who has

parking spaces adjacent to a pedestrian walkway, Mr. Breuer appreciated

the danger to pedestrians from encroaching vehicles.      As a precaution, he

installed bollards forty years ago.      Such evidence is probative of the




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objective reasonableness

take similar measures to protect their invitees.3

       Thus, I believe Ms. Truax has presented sufficient evidence of a lack of

reasonable care on the part of Mr. Vitiello and Wildwood to avoid summary

judgment. The professed compliance of Mr. Vitiello and Wildwood with local

ordinances and regulations, which were neither identified nor made part of

the certified record, does not absolve these Defendants of liability for

negligence.       Had they actually demonstrated compliance with those

minimum standards, it would merely have established that Appellees were

not negligent per se.       See Berkebile v. Brantly Helicopter Corp., 281

A.2d 707, 710 (Pa.Super. 1971) (en banc) (holding          ompliance with a law

or administrative regulation relieves the actor of negligence per se, but it



       For all of the foregoing reasons, I respectfully dissent.




____________________________________________


3
  One might argue that the affidavit of Mr. Breuer, a layperson, obviated the
necessity for expert testimony in the instant case. The inferences that can
                                                             ed on his own
perceptions and not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702. See Pa.R.E. 701; see also Gibson
v. Workers' Comp. Appeal Bd. (Armco Stainless & Alloy Prods.), 861
A.2d 938 (Pa. 2004) (holding that Rule 701 contemplates admission of lay
opinions based on personal knowledge and which are helpful to the trier of
fact).



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