J-A23033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DIANE FORD                                     IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

RED ROBIN INTERNATIONAL, INC.,
T/D/B/A RED ROBIN GOURMET
BURGERS, INC., T/D/B/A RED ROBIN
RESTAURANT

                        Appellee                   No. 1825 WDA 2014


              Appeal from the Order Entered October 6, 2014
          In the Court of Common Pleas of Westmoreland County
                    Civil Division at No(s): 11C100936


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                  FILED SEPTEMBER 01, 2015

     Appellant, Diane Ford, appeals from the order entered in the

Westmoreland County Court of Common Pleas, which granted the motion for

summary judgment filed on behalf of Appellee, Red Robin International, Inc.,

t/d/b/a Red Robin Gourmet Burgers, Inc., t/d/b/a Red Robin Restaurant

(“Red Robin”). We affirm.

     The relevant facts and procedural history of this case are as follows.

On the afternoon of February 18, 2009, Appellant and her husband went to

eat at a Red Robin restaurant. Appellant and her husband parked their car

in a lot outside the restaurant. Appellant walked across the parking lot onto

a sidewalk that led to the restaurant entrance and, without incident, stepped
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in a puddle of water where the parking lot met the sidewalk curb, although

she could have entered the restaurant without walking through the puddle.

Appellant and her husband continued into the restaurant.        They finished

their meal and exited the restaurant around 4:30 p.m. or 5:00 p.m.

Appellant stepped in the same puddle and slipped, causing her to fall and

sustain injuries. Appellant filed a complaint on March 19, 2012, alleging Red

Robin was negligent for failing to fix the hazardous condition created by the

puddle. Red Robin filed a motion for summary judgment on May 23, 2012.

The court granted Red Robin’s motion for summary judgment on October 6,

2014. Appellant filed a timely notice of appeal on October 31, 2014. The

court did not order Appellant to file a concise statement of errors complained

of on appeal, pursuant to Pa.R.A.P. 1925(b); and Appellant filed none.

       Appellant raises the following issues for our review:1

          WHETHER…THE TRIAL COURT ERRED AS A MATTER OF
          LAW BY RULING IN FAVOR OF [RED ROBIN], WITH
          RESPECT TO [RED ROBIN’S] SUMMARY JUDGMENT
          MOTION, AND STATING THAT…APPELLANT DID NOT MEET
          [HER] BURDEN BY SHOWING THAT THE DEFECT
          EXISTED[?]
____________________________________________


1
  Appellant failed to include in her brief a separate statement of questions
involved and to divide her argument into as many parts as there are
questions to be argued. See Pa.R.A.P. 2116, 2119. Nevertheless, Appellant
presents two questions for review at the beginning of her argument section,
followed by discussion of those issues with citation to pertinent authorities.
Therefore, we will address Appellant’s issues because the defects in her brief
do not substantially impair our review. See Forrester v. Hanson, 901 A.2d
548 (Pa.Super. 2006) (addressing appellant’s claims where defects in brief
did not substantially impair Court’s ability to review issues presented).



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         WHETHER…THE COURT ERRED AS A MATTER OF LAW [BY
         RULING] THAT…APPELLANT DID NOT MEET [HER] BURDEN
         IN SHOWING THAT [RED ROBIN] HAD NOTICE AND AS A
         RESULT, GRANTED [RED ROBIN’S] SUMMARY JUDGMENT
         MOTION[?]

(Appellant’s Brief at 7).

      In her issues combined, Appellant argues a genuine issue of material

fact exists regarding the size and depth of the puddle because Appellant and

her husband testified the puddle was one or two inches deep, whereas Red

Robin’s expert determined it was only one-half inch deep.            Appellant

contends an issue of fact also exists as to whether her fall was caused by

stepping on a rock in the puddle or by losing her balance after walking along

a narrow curb.       Appellant asserts the parties dispute the extent of

Appellant’s injuries as well. Appellant further claims an issue of fact exists

as to whether Red Robin had notice of the condition given that an hour had

passed between the two times Appellant stepped in the puddle, and

photographs taken almost four years after the accident showed a puddle in

the same location. For all of these reasons, Appellant concludes summary

judgment was improper. We disagree.

      Our standard of review of an order granting summary judgment

requires us to determine whether the trial court abused its discretion or

committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,

347 (Pa.Super. 2006).

         Judicial discretion requires action in conformity with law on

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         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it
         misapplies the law or exercises its discretion in a manner
         lacking reason.       Similarly, the trial court abuses its
         discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations omitted).   Our scope of review is plenary.   Pappas v.

Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536

U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).        In reviewing a trial

court’s grant of summary judgment,

         [W]e apply the same standard as the trial court, reviewing
         all the evidence of record to determine whether there
         exists a genuine issue of material fact. We 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.
         Only where there is no genuine issue as to any material
         fact and it is clear that the moving party is entitled to a
         judgment as a matter of law will summary judgment be
         entered. All doubts as to the existence of a genuine issue
         of a material fact must be resolved against the moving
         party.

         Motions for summary judgment necessarily and directly
         implicate the plaintiff’s proof of the elements of [a] cause
         of action.   Summary judgment is proper if, after the
         completion of discovery relevant to the motion, including
         the production of expert reports, an adverse party who will
         bear the burden of proof at trial has failed to produce
         evidence of facts essential to the cause of action or
         defense which in a jury trial would require the issues to be
         submitted to a jury. In other words, whenever there is no
         genuine issue of any material fact as to a necessary
         element of the cause of action or defense, which could be
         established by additional discovery or expert report and
         the moving party is entitled to judgment as a matter of
         law, summary judgment is appropriate. Thus, a record


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         that supports summary judgment 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.

         Upon appellate review, we are not bound by the trial
         court’s conclusions of law, but may reach our own
         conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

      To prevail in a negligence action, a plaintiff must establish the

defendant “owed a duty of care to the plaintiff, that duty was breached, the

breach resulted in the plaintiff’s injury, and the plaintiff suffered an actual

loss or damages.” Merlini ex rel. Merlini v. Gallitzin Water Authority,

602 Pa. 346, 354, 980 A.2d 502, 506 (2009). A possessor of land is one

“who is in occupation of the land with the intent to control it.” Stanton v.

Lackawanna Energy, Ltd., 584 Pa. 550, 566, 886 A.2d 667, 677 (2005)

(citing Restatement (Second) of Torts § 328E). The standard of care a land

possessor owes to a person who enters upon the land depends on whether

the entrant is a business invitee, licensee, or trespasser.       Carrender v.

Fitterer, 503 Pa. 178, 184, 469 A.2d 120, 123 (1983).

      Business invitees are owed the highest duty of care of any land

entrant. Chenot, supra at 63. A land possessor is liable for physical harm

caused to an invitee if the following conditions are satisfied:

         [The land possessor] knows of or reasonably should have
         known of the condition and the condition involves an
         unreasonable risk of harm, he should expect that the

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         invitee will not realize it or will fail to protect [herself]
         against it, and the [land possessor] fails to exercise
         reasonable care to protect…invitees against the danger.

Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719,

722 (Pa.Super. 1997), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997)

(citation omitted).   The “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.” Myers

v. Penn Traffic Co., 606 A.2d 926, 928 (Pa.Super. 1992), appeal denied,

533 Pa. 625, 620 A.2d 491 (1993).          An invitee must present evidence

proving “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, supra.      What constitutes constructive notice depends on the

circumstances of the case, but one of the most important factors to consider

is the time that elapsed between the origin of the condition and the accident.

Neve v. Insalaco’s, 771 A.2d 786, 791 (Pa.Super. 2001). The invitee need

not produce evidence on how long the alleged condition existed if the

condition is of a type with an “inherently sustained duration” (as opposed to

something transitory such as a spill), and a witness saw the condition

immediately before or after the accident. Id.

      Nevertheless, “[A]n elevation, depression, or irregularity in a sidewalk

or in a street or highway may be so trivial that, as a matter of law, courts


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are bound to hold that there was no negligence in permitting such

depression or irregularity to exist.”    Mull v. Ickes, 994 A.2d 1137, 1140

(Pa.Super. 2010). No definite or mathematical rule exists as to the depth or

size of a depression to determine whether the defect is trivial as a matter of

law. Id. “What constitutes a defect sufficient to render the property owner

liable must be determined in the light of the circumstances of the particular

case….” Breskin v. 535 Fifth Ave., 381 Pa. 461, 463, 113 A.2d 316, 318

(1955).     “[A] paving defect is trivial when it would be completely

unreasonable, impractical and unjustifiable to hold [the] defendant liable for

its existence.”   Massman v. City of Philadelphia, 430 Pa. 99, 101, 241

A.2d 921, 923 (1968). The “trivial defect” rule is intended to avoid imposing

liability on property owners for “common and usual” imperfections.         See

Van Ormer v. City of Pittsburgh, 347 Pa. 115, 31 A.2d 503 (1943).

      Instantly, the court reasoned as follows:

          The [c]ourt finds that [Appellant] has not provided
          sufficient evidence to prove the existence of a defective
          condition in [Red Robin’s] parking lot, nor the actual cause
          of [Appellant’s] fall. Her testimony indicates only that,
          while exiting the building, she possibly slipped on a rock or
          gravel underlying a puddle that she had already walked
          through once upon entering the building. This incident
          took place during daylight hours, on a balmy day during a
          thaw where there were puddles present. [Appellant] has
          not provided an expert report to counter the expert report
          of [Red Robin], which indicates that no defect was present,
          nor has [Appellant] provided testimony or evidence
          establishing a defective condition in the parking lot. Even
          if the condition of the parking lot on the day of
          [Appellant’s] accident could be proved to have been
          defective, it is so trivial a defect that the [c]ourt is bound

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         to hold there was no negligence in permitting its existence.

         Further, [Appellant] has failed to show notice on behalf of
         the property possessor of the alleged defect in the parking
         lot. [Appellant] acknowledges that she walked through the
         puddle on the way into the restaurant and did not mention
         the alleged defect to anyone, nor has she provided any
         evidence of similar falls or complaints due to the alleged
         ongoing defective condition. The [c]ourt recognizes that
         [Appellant] suffered physical injuries as a result of her fall
         on the premises; however, after considering all of the
         evidence, testimony and pleadings of record, the [c]ourt is
         constrained to conclude that no genuine issues of fact exist
         regarding material elements of the cause of action, as it is
         clear that [Appellant] has not met her burden of showing a
         defective condition existed or that the property possessor
         had notice of any such condition.

(Order, filed October 8, 2014, at 2-4) (internal citations omitted).      The

record supports the court’s analysis.   Appellant’s only evidence of the size

and depth of the puddle was her and her husband’s estimate that it was one

or two inches deep. The court acted within its discretion when it determined

that a small rock or piece of gravel in a shallow puddle in a parking lot

constituted a trivial defect.   See Mull, supra.    Appellant failed to adduce

sufficient evidence to support the conclusion that the puddle presented an

unreasonable risk of harm.       See Estate of Swift, supra.         Moreover,

Appellant failed to meet her burden to show that Red Robin had actual or

constructive notice of the allegedly defective condition before the accident

occurred.   See id.     Based on the foregoing, the court properly entered

summary judgment in favor of Red Robin. Accordingly, we affirm.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2015




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