J   -A16025-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    HELEN J. PETERS AND MONTIE E.              :        IN THE SUPERIOR COURT OF
    PETERS                                                    PENNSYLVANIA

                         Appellants


                 v.

                                               :        No. 1711 MDA 2018
    WELLSBORO HOTEL COMPANY AND
    PENN -WELLS HOTEL

              Appeal from the Order Entered September 20, 2018
      In the Court of Common Pleas of Tioga County Civil Division at No(s):
                                0040 -CV -2016
BEFORE:      LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY MURRAY, J.:                                         FILED JULY 30, 2019

        Helen J.      Peters (Mrs.    Peters) and       Montie   E.   Peters (Mr.   Peters)

(collectively Appellants) appeal from the order granting summary judgment in

favor of Wellsboro Hotel Company and Penn -Wells Hotel (Appellees). For the

reasons that follow, we affirm.

        On the evening of February 23, 2014, Appellants dined at Appellees'

restaurant. After dinner, as Appellants were leaving, Mrs. Peters fell on the

sidewalk. Mrs. Peters sustained injuries as         a   result of the fall.

        On January 19, 2016, Appellants filed a complaint in which            they alleged

that Mrs. Peters' injuries were caused by Appellees' negligence. Specifically,

Appellants asserted that Appellees owed             a   duty of care to Appellants as



*   Former Justice specially assigned to the Superior Court.
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business invitees and breached that duty, causing injury to Appellants because

Appellees "knew or should have known that the step was unsafe, insufficiently

demarcated or lit, and posed           a   hazardous condition to guests, patrons,

business invitees, and the general public exiting the restaurant." Complaint,

1/19/16,      ¶ 14.   The complaint further alleged that Appellees' negligence led

to   a   loss of consortium for Mr. Peters arising from Mrs. Peters' injuries.

          On March 3, 2016, Appellees filed an answer and new       matter to which

Appellants replied on March 28, 2016. The parties subsequently engaged in

discovery, which, pertinent to this appeal, included the depositions of both

Appellants and the EMS workers who treated Mrs. Peters at the accident scene.

          On April 25, 2018, Appellees filed a motion       for summary judgment.

Appellees argued that Appellants failed to present any evidence that              a


dangerous condition existed, or any evidence showing Appellees had any

notice, actual or constructive, of         a   dangerous condition that would have

caused Mrs. Peters' fall.       On August 17, 2018, following the submission of

briefs, the trial court held   a   hearing on the motion. On September 20, 2018,

the trial court entered an order granting Appellees' motion for summary

judgment and dismissing Appellants' claims.             Appellants filed this timely

appeal.'

          Appellants present two issues for our review:



' Both the trial court     and Appellants have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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        A.   WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
        AND/OR ERRED AS A MATTER OF LAW BY GRANTING SUMMARY
        JUDGMENT TO [APPELLEES] IN CONTRAVENTION OF PA.R.C.P.
        1035.2, THE CASE LAW INTERPRETING THE RULE, AND THE
        SPECIFIC JURISPRUDENCE APPLICABLE TO THIS CASE?

        B.   WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
        AND/OR ERRED AS A MATTER OF LAW BY GRANTING SUMMARY
        JUDGMENT WITHOUT PERMITTING THE ISSUES IN THIS MATTER
        TO BE SUBMITTED TO A JURY?

Appellants' Brief at 4.

        Both of Appellants' issues challenge the trial court's decision to dismiss

their action by granting summary judgment.           Therefore, we address both

issues together.        Our standard of review regarding     a   trial court's decision to

grant or deny      a   motion for summary judgment   is 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
        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).

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        With respect to the grant of summary judgment, this Court has stated:

          [A] proper grant of summary judgment depends upon an
          evidentiary record that either (1) shows the material facts
          are undisputed or (2) contains insufficient evidence of facts
          to make out a prima facie cause of action or defense[.]
          Under [Civil] Rule 1035.2(2), if a defendant is the moving
          party, he may make the showing necessary to support the
          entrance of summary judgment by pointing to materials
          which indicate that the plaintiff is unable to satisfy an
          element of his cause of action. Correspondingly, [t]he non-
          moving party must adduce sufficient evidence on an issue
          essential to its case and on which it bears the burden of
          proof such that a jury could return a verdict favorable to the
          non-moving party.

        Basile v. H & R Block, Inc., 777 A.2d 95, 100-01 (Pa. Super.
        2001) (citations and [quotations] omitted). Thus, a plaintiff's
        failure to adduce evidence to substantiate any element of his
        cause of action entitles the defendant to summary judgment as a
        matter of law.

Sass v. AmTrust Bank, 74 A.3d 1054, 1059 (Pa. Super. 2013).

        In any case alleging negligence, the plaintiff has the burden to prove

the following four elements: "1. [a] duty or obligation recognized by law[,]

2.[a] breach of the duty[,] 3. [c]ausal connection between the actor's breach

of the duty and the resulting injury[, and] 4. [a]ctual loss or damage suffered

by complainant." Wilson v. PECO         Energy Co.,    61 A.3d 229, 232 (Pa. Super.

2012) (quoting Cooper v. Frankford Health Care System, Inc., 960 A.2d

134, 140 n.2 (Pa. Super. 2008) (citation omitted), appeal denied, 970 A.2d

431 (Pa. 2009)).      "[I]t   is   incumbent on   a   plaintiff to establish   a   causal

connection between defendant's conduct, and it must be shown to have been

the proximate cause of plaintiff's injury." Lux v. Gerald E. Ort Trucking,


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Inc., 887 A.2d 1281, 1286            (Pa. Super. 2005) (quotations and citation

omitted). A court must grant summary judgment "where the evidence                  is such

that   a   jury would have to reach         a   verdict on the basis of speculation or

conjecture." InfoSAGE, Inc. v. Mellon Ventures, L.P., 896 A.2d 616, 632

n.12 (Pa. Super. 2006) (citing Cade v. McDanel, 679 A.2d 1266, 1271 (Pa.

Super. 1996)).

        We further recognize that     "[t]he 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."

Truax v. Roulhac, 126 A.3d 991, 997                    (Pa.   Super. 2015) (en banc)

(quotations and citation omitted). This Court has explained:

           In determining the scope of duty property owners owe to
        business invitees, we have relied on Restatement (Second) of
        Torts § 343, which provides:

            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 involves an
            unreasonable risk 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.

        See Neve v. Insalaco's, 771 A.2d 786, 790 (Pa. Super. 2001)
        (quoting Restatement (Second) of Torts § 343).

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          An invitee must demonstrate that the proprietor deviated from
        its duty of reasonable care owed under the circumstances. Id. at
        791. Thus, the particular duty owed to a business invitee must
        be determined on a case -by -case basis.  .  Restatement Section
                                                      .   .


        343A provides that no liability exists when the dangerous
        condition is known or obvious to the invitee unless the proprietor
        should anticipate the harm despite such knowledge. Restatement
        (Second) of Torts § 343A(1) (1965). Comment (e) states:

           If [the invitee] knows the actual conditions,          and   the
          activities carried on, and the dangers involved in either, he
          is free to make an intelligent choice as to whether the
          advantage to be gained is sufficient to justify him in
          incurring the risk by entering or remaining on the land. The
          possessor of the land may reasonably assume that he will
          protect himself by the exercise of ordinary care, or that he
          will voluntarily assume the risk of harm if he does not
          succeed in doing so. Reasonable care on the part of the
          possessor therefore does not ordinarily require precautions,
          or even warning, against dangers which are known to the
          visitor, or so obvious to him that he may be expected to
          discover them.

        Restatement (Second) of Torts   §   343A cmt. e (1965).

Campisi v. Acme Markets, Inc., 915 A.2d 117, 119-20           (Pa. Super. 2006)

(some citations omitted).

        Here, there is no dispute that Appellants were business invitees to whom

Appellees owed the highest duty of care, and that Mrs. Peters suffered harm

while on Appellees' property. The dispute is whether Appellees breached their

duty of care and whether the alleged breach caused Appellants' harm.

        In granting Appellees' motion for summary judgment, the trial court

explained:

           In the current case, [Appellants] failed to put forward any
        evidence that [Appellees] breached their duty of care to them or

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        that a dangerous condition even existed on [Appellees'] property.
        In her deposition Mrs. Peter[s] indicated she fell while exiting
        [Appellees'] property because she "missed a step." Helen Peters'
        Deposition, pp. 34-35. She testified she could not remember if
        the step was wet. Id. She also testified the step seemed to be
        structurally sound and did not appear to be broken or cracked in
        any way. Id. Mr. Peters likewise testified "there is no issue with
        the structure of the step." Montie Peters' Deposition, p. 18. The
        record, therefore, is devoid of any evidence showing anything
        regarding the step itself created a dangerous condition that would
        constitute a breach of [Appellees'] duty of care to [Appellants].

           As [Appellants] fail to put forward any evidence about a
        physical defect to the step they argue [Appellees'] breach was
        actually the environment surrounding the step.         [Appellants]
        argue [Appellees] breached their duty of care because of poor
        lighting surrounding the step, the lack of a railing on the steps,
        and the lack of yellow tape or other marking indicating the
        existence of the step.       When [Appellants] left [Appellees']
        property it was dark outside. Mrs. Peters testified it was quite
        dark out when she fell and she remembered seeing streetlights
        on. H.P. Deposition at 35. Mr. Peters testified it was "relatively
        dark" when they exited but not "annoyingly dark."              M.P.
        Deposition at 15. He also testified the interior lights were on in
        the hotel entrance way but did not remember if the street lights
        were illuminated. Id. In addition, Steven Seeley, one of the EMS
        workers who treated Mrs. Peters at the scene, testified there was
        enough light that they were able to treat her without using the
        artificial lights they carry in their ambulance. Steven Seeley
        Deposition p. 9. There is nothing in this testimony to show
        [Appellees] deviated in any way from their duty of reasonable care
        in the circumstances leading up to Mrs. Peters' fall. There is no
        evidence in the record the lack of an exterior light, in the
        circumstances presented by the testimony, created a harmful
        condition. The same analysis applies for the lack of a railing or
        any yellow tape demarcating the location of the step. While the
        court must view the record in the light most favorable to the
        [Appellants], [Appellants] are still required to put forth some
        evidence to prove a dangerous condition existed.             Here,
        [Appellants] failed to do so, except for the fact that an accident
        occurred. Simply because an accident occurred, however, does
        not necessarily mean a dangerous condition existed.



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                Furthermore, even if the lack of these additional safety
            precautions was a breach of [Appellees'] duty of care to
            Mrs. Peters, there is no evidence of a causal link between
            their absence and Mrs. Peters' injuries. Mrs. Peters'
            testimony was she "missed a step." She gave no indication
            in her deposition as to why she missed the step. She did
            not say she missed the step because she could not see it.
            She did not say she missed the step because it was too
            dark. She did not say she missed the step because of the
            absence of a handrail or yellow warning tape. There is
            simply no evidence in the record connecting Mrs. Peters'
            fall to the alleged dangerous conditions on [Appellees']
            property. In order for the jury to find the alleged dangerous
            conditions caused Mrs. Peters' fall they would have to engage in
            speculation and speculation alone does not create a genuine
            question of material fact[.]

               As [Appellees] did not breach a duty to [Appellants] since no
            dangerous condition existed at the time of Mrs. Peters' fall and
            there is no causal connection between the alleged dangerous
            conditions and Mrs. Peters' fall, no substantial question of material
            fact exists and the court correctly granted [Appellees'] motion for
            summary judgment.

Trial Court Opinion, 12/17/18, at 5-7 (unnumbered) (emphasis added).

            Appellants argue that the trial court erred in dismissing their negligence

claim because the trial court incorrectly concluded that Appellants failed to

present evidence that          a   dangerous condition existed that caused Mrs. Peters'

fall.       Appellants further contend that the trial court improperly based its

decision on Mrs. Peters' deposition testimony indicating that she fell because

she missed        a   step. Appellants maintain that the trial court took this testimony

out of context when Appellants did, in fact, present evidence indicating both

that    a   dangerous condition existed in the area on and around the step due to

insufficient lighting, the lack of        a   handrail, and the lack of any demarcation


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indicating that there was             a   step, and that this dangerous condition caused

Mrs. Peters to fall. Appellants assert that the evidence they presented relating

to the step raised         a   question for   a   jury as to whether there existed   a   dangerous

condition for which Appellees had                  a   duty to warn Appellants.

        Conversely, Appellees argue that Appellants failed to meet their burden

of proving that        a   dangerous condition existed at the time and place of Mrs.

Peters' fall. Appellees further argue that Appellants failed to demonstrate that

any alleged lack of exterior lighting and/or additional safety precautions

created      a   harmful condition that was causally linked to Mrs. Peters' fall, or

that Appellees had notice of any alleged dangerous condition.

        Upon careful consideration, we affirm the trial court. Although the trial

court was correct that Mrs. Peters stated she fell because she did not see                       a


step, we note the full context of Mrs. Peters' testimony. During her deposition,

Mrs. Peters stated that by the time she exited the restaurant, it "had gotten

dark." Motion For Summary Judgment, 4/25/18, Exhibit                       B   (Deposition of Mrs.

Peters, 5/11/17, at 34). She testified:

        A.        I pushed through the door, and I recall it being dark,
                  because I noticed the street lights. And then I just started
                  walking forward and turned my body to go up the street.

        Q.        A   what happened next?

        A.        And I fell onto the sidewalk.

        Q.        Do you know        what caused you to fall?

        A.        Evidently, I didn't see          a   step.


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         Q.       Okay. Is it your belief that that's why you fell?

         A.       Yes, it is.

Id.
         Mrs. Peters stated that although she remembered seeing streetlights,

she recalled       "it being quite dark." Id. at           35. Mrs. Peters further recounted,

"I remember coming through the doorway                      and thinking that I had went right

onto the sidewalk."             Id. at   39.       When asked to describe why the step she

missed was hazardous, Mrs. Peters stated, "The fact that I didn't know it was

there." Id. at 45.

         The testimony continued:

      A. There was no indication          that there was         a   step there.

      Q. And the - is that the same reason you described it as unsafe in
         your complaint?

      A. Yes.

      Q. And  that it was improperly maintained? Is there [sic] any facts
         that you have that you can share with me -

      A. I   just feel that it should    be more evident         that there   is a   step there.

      Q. Okay.  But do you - and again, do you have any - any facts
         that you have that maybe I don't that would suggest that
         that was improperly maintained, the step-down?
      A. No.

      Q. You say in your complaint that the step-down was improperly
         demarcated. What do you mean by that?

      A. That you can't tell       there's     a   step there.



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     Q. Okay. You also indicate that it was insufficiently lit. And by that,
          I presume you meant the artificial lighting because it was
          nighttime, right?

     A. Correct.

     Q. Do you    remember when you entered the restaurant if you had to
          step up from the sidewalk to the doors to enter the restaurant?

     A. I must have because since it's there.

     Q. Okay.    But do you have      a   recollection of that?

     A.   No.

Motion For Summary Judgment, 4/25/18, Exhibit                B   (Deposition of Mrs. Peters,

5/11/17, at 46-47) (emphasis added).

          At argument before the trial court, Appellees emphasized that Mrs.

Peters "isn't even completely aware of what caused her to fall" and argued

that the court had        a   "duty to prevent cases from going to        a   jury where the
jury itself would        be required to speculate as to the cause of the fall here."

N.T., 8/17/18, at 3.

          In response, Appellants recounted the undisputed facts: that Appellants

were on Appellees' premises around 5:00 p.m. on February 23, 2014, ate

dinner, left the premises when it was dark outside, and Mrs. Peters fell on the

premises and broke her hip.         Id. at 4. Appellants emphasized that as         business

invitees, they were owed the highest duty of care, and "Mrs. Peters' testimony

was that she could not see the step and              a   determination of whether or not

that constitutes negligence on behalf of [Appellees] needs to be answered by

a   jury." Id. at   6.

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         Upon review, we conclude that Appellants failed to meet their burden of

establishing     a   breach of Appellees' duty of care and              a   causal connection to

Mrs. Peters' injury.         It was incumbent        on Appellants to establish     a   dangerous

condition that was the proximate cause Mrs. Peters' injury.                         See Lux v.

Gerald     E.    Ort Trucking, Inc., 887 A.2d at 1286.                      While "[i]nadequate

lighting of stairs has been held to create                a   dangerous condition sufficient to

constitute negligence," Hall v. Glick, 110 A.2d 836, 837 (Pa. Super. 1955);

see also Hoss v. Nestor Bldg. & Loan Ass'n , 63 A.2d 435, 438 (Pa. Super.

1949), Appellants did not establish                   -    by deposition, expert report, or

otherwise       - that   a   lack of lighting (or other safety precautions) created               a


dangerous condition that was the proximate cause of Mrs. Peters' injuries.

"Proximate causation           is   defined as   a   wrongful act which was        a    substantial

factor in bringing about the plaintiff's harm." Lux v. Gerald E. Ort Trucking,

Inc., 887 A.2d at 1286. "In order                to establish causation, the plaintiff must

prove that the breach was 'both the proximate and actual cause of the                      injury.'
Id. at   1287 (citing    Reilly v. Tiergarten, Inc., 633 A.2d 208, 210                  (Pa. Super.

1993)). Further, "[p]roximate cause               is a    question of law to be determined by

the court before the issue of actual cause may be put to the jury."                          Id. at
1287.

         Based on our review of the record and prevailing law, we conclude that

Appellants failed to establish proximate causation between any breach by

Appellees and Mrs. Peters' fall. As noted by the trial court, "there is simply no


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evidence in the record connecting Mrs. Peters' fall to the alleged dangerous

conditions on [Appellees'] property." Trial Court Opinion, 12/17/18, at 6-7.

Thus, Appellants' failure "to adduce sufficient evidence on an issue essential

to their case"    -   and on which Appellants bear the burden of proof           -
establishes "the entitlement of [Appellees] to judgment as    a   matter of law."

Truax v. Roulhac, 126 A.3d at 997. In sum, the trial court did not commit

an error of law or abuse its discretion in granting summary   judgment   in   favor

of Appellees.

        Order affirmed. Jurisdiction relinquished.


Judgment Entered.




Jsph      Seletyn,
         D.
Prothonotary
Date: 7/30/2019




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