J-A03009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SU HUNG AND CLEMENT HUNG                 :    IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS H/W                  :         PENNSYLVANIA
                                         :
                   Appellants            :
                                         :
             v.                          :
                                         :
PARKWAY CORPORATION                      :
                                         :
                   Appellee              :         No. 3728 EDA 2016

                  Appeal from the Order November 15, 2016
            In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): 3472 September Term, 2015


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED FEBRUARY 21, 2018

      Appellants, Su Hung and Clement Hung individually and as h/w, appeal

from the order of the Philadelphia Court of Common Pleas that granted

summary judgment in favor of Appellee Parkway Corporation in this

negligence slip-and-fall action. We affirm.

      In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

      Appellant raises the following issues on appeal:

          WHETHER THE [TRIAL] COURT ERRED WHEN IT
          DETERMINED [APPELLANTS’] CLAIM WAS BARRED UNDER
          THE “HILLS AND RIDGES” DOCTRINE.

          WHETHER THE [TRIAL] COURT ERRED WHEN IT
          DETERMINED THAT THERE WAS NO ISSUE OF MATERIAL
          FACT  AS   TO   WHETHER   “GENERALLY  SLIPPERY
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03009-18


         CONDITIONS” EXISTED.

         WHETHER THE [TRIAL] COURT ERRED IN ITS DECISION
         THAT [MS. HUNG] FAILED TO SUFFICIENTLY PLEAD
         EXCESSIVE-SLOPE THEORIES IN HER COMPLAINT.

         WHETHER THE [TRIAL] COURT ERRED IN ITS FAILURE TO
         PROPERLY ADDRESS APPELLANTS’ EXCESSIVE SLOPE
         CLAIMS.

(Appellant’s Brief at 4).

      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

(Pa.Super. 2006).

         Judicial discretion requires action in conformity with law on
         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, 768 A.2d 1089 (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.

                                     -2-
J-A03009-18


        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
        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)

(emphasis added, internal citations and quotation marks omitted).

     The Pennsylvania Rules of Civil Procedure provide:

        Rule 1035.2. Motion

           After the relevant pleadings are closed, but within such
        time as not to unreasonably delay trial, any party may
        move for summary judgment in whole or in part as a
        matter of law

           (1)   whenever there is no genuine issue of any

                                   -3-
J-A03009-18


            material fact as to a necessary element of the cause
            of action or defense which could be established by
            additional discovery or expert report, or

            (2) if, after 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.

              Note: Rule 1035.2 sets forth the general principle
              that a motion for summary judgment is based on
              an evidentiary record which entitles the moving
              party to judgment as a matter of law.

                                    *     *   *

Pa.R.C.P. 1035.2 (emphasis added).

      The “hills and ridges” doctrine protects an owner or occupier from

liability for generally slippery conditions resulting from ice and snow if the

owner has not permitted the ice and snow to accumulate unreasonably into

ridges or elevations. Harmotta v. Bender, 601 A.2d 837 (Pa.Super. 1992).

To overcome the application of the “hills and ridges” doctrine in this context,

a plaintiff is required to prove:

         (1) that snow and ice had accumulated on the sidewalk in
         ridges or elevations of such a size and character as to
         unreasonably obstruct travel and constitute a danger to
         pedestrians travelling thereon; (2) that the property owner
         had notice, either actual or constructive, of the existence
         of such condition; (3) that it was the dangerous
         accumulation of snow and ice which caused the plaintiff to
         fall.

Id. at 378-79 (quoting Rinaldi v. Levine, 406 Pa. 74, 78, 176 A.2d 623,


                                        -4-
J-A03009-18


625 (1962)).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the reasoned opinion of the Honorable Karen Shreeves-

Johns, we conclude Appellants’ issues merit no relief. The trial court opinion

comprehensively      discusses   and   properly    disposes   of    the   questions

presented.      (See Trial Court Opinion, filed November 16, 2016, at 9-17)

(finding: (1-4) undisputed facts viewed in light most favorable to Appellants

show that it was just below or around freezing in hours before and during

Ms. Hung’s fall, with prior and ongoing light precipitation as rain; sidewalk at

issue had ice formed due to recent precipitation, with no ice or snow

persisting in area of Ms. Hung’s route or on street surface at intersection of

8th and Arch Streets, but there was ice on exposed surfaces in some parts of

Philadelphia;    Appellants   cannot   recover    because   these   circumstances

constitute “generally icy conditions” for purposes of “hills and ridges”

doctrine; it would not have been reasonable to expect Appellee to alleviate

icy condition given undisputed facts about temperature and continued

precipitation conditions prevailing in community when Ms. Hung fell or

shortly before she fell; conditions at issue were generally slippery conditions,

so “hills and ridges” doctrine applies; all parties agree Ms. Hung slipped on

smooth, mirror-like ice, not on accumulated hill or ridge of snow and ice, so

Appellants cannot establish breach of duty; Appellants also argue ramp at

issue was excessively sloped and had reduced slip resistance; nevertheless,


                                       -5-
J-A03009-18


Appellants failed to plead “excessive slope” theory in their complaint;

moreover, there is no evidence of record that “excessive slope” caused ice to

exist or persist, or that ice existed or persisted on ramp for any duration

beyond timeframe of active precipitation in community; court properly

granted summary judgment in favor of Appellee). The record supports the

court’s decision, and we see no reason to disturb it. Accordingly, we affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2018




                                    -6-
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                            IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                               CIVIL TRIAL DIVISION


                    SU HUNG and CLEMENT HUNG,                                                COURT OF COMMON PLEAS
                    Individually and as h/w,                                                 PHILADELPHIA COUNTY
                                       Plaintiffs,

                              v.                                                             SEPTEMBER TERM 2015
                                                                                             NO. 3472
                    PARKWAY CORPORATION,
                                Defendant.                                                   3728 EDA 2016


                                                      OPINION PURSUANT TO Pa.R.A.P. 1925(a)

                              Plaintiffs Su Hung and Clement Hung, individually and as h/w (heteinafter

                    "Plaintiff-Appellant"), appeal the trial court's Order of November 16, 2016, which granted

                    a summary judgment motion in favor of Defendant Parkway Corporation (hereinafter

                    "Defendant-Appellee"), disposing of the case.                            The Notice of Appeal was filed on

                    November 23,                 2016.           Plaintiff-Appellant simultaneously filed a Motion for

                    Reconsideration of the trial court's grant of summary judgment. This, the trial court denied

                    by Order on December 22, 2016.
                                                                                                   Hung Elal Vs Parkway Corporation-OPFLD

                                                                                      1

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                                                                                                        15090347200069
nPll=C::: C:::l=I\IT Pl IR�I IAI\IT T(I P::i R   r.   D ?��(h\ f) l<l=I IV ('l?/1 �/?('117
                          SUMMARY JUDGMENT ST ANDARD

        Summary judgment is properly granted where "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." Pa. R.C.P. No. 1035.2(1). After the

 close of discovery relevant to the motion, summary judgment is also appropriate. if "an

. adverse party who will bear the burden of proof at trial has failed to produce evideri�e. 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." Pa. R.C.P. No. 1035.2(2).

        In passing upon a motion for summary judgment, the trial court's function is
       not to decide issues of fact, but solely to determine whether there is an issue
        of fact to be tried. All doubts as to the existence of a genuine issue of material
        fact must be tesolved against the moving party. Finally, a summary judgment
        should be granted only when the case is clear and free from doubt.
 McFadden v. American Oil Company, 215 Pa. Super. 44, 48-49, 257 A.2d 283
 (1969) (citations omitted).


                                         DISCUSSION

        This case arises out of Plaintiff-Appellant's (Su Hung's) alleged slip and fall on ice

 on Defendant-Appellee's sidewalk. As such, the law governing slip and falls on ice is the

 hills-and-ridges doctrine, to be described below. · Under Pennsylvania law, summary

 judgment may be a proper stage for the court to apply the hills-and-ridges doctrine where

 there is no dispute of material facts. See, e.g., Biernacki v. Presque Isle Condominiums

 Unit Owners Association, Inc., 828 A.2d 1114 (Pa. Super. 2003) (affirming the trial court's

 application of the hills and ridges doctrine in granting sununary judgment to a defendants

 where the defendants had not removed snow by 7:45 a.m. the day after snowfall).


                                                2
       The Superior Court has described the hills-and-ridges doctrine as follows;

       The "hills and ridges" doctrine is a long standing and well entrenched legal
       principle that protects an owner or occupier of land from liability for
       generally slippery conditions resulting from ice and snow where the owner
       has not permitted the ice and snow to unreasonably accumulate in ridges or
       elevations. Harmotta v. Bender. 411 Pa. Super. 371, 601 A.2d 837 (1992).
       "The doctrine as defined and applied by the courts of Pennsylvania, is a
       refinement or clarification of the duty owed by a possessor of land and is
       applicable to a single type of dangerous condition, i.e., ice and snow." Wentz
       v. Pennswood Apartments. 359 Pa. Super. 1, 5, 518 _A.2d 314, 316 (1986).
       The rationale for this doctrine has been explained as follows:

              ... to require that one's walks be always free of ice and snow
              would be to impose an impossible burden in view of the
              climatic conditions in this hemisphere.

       Id. The "hills and ridges" doctrine applies with equal force to both public
       and private spaces. See Wentz. supra (appellate courts of this
       Commonwealth apply the doctrine of hills and ridges not only to persons
       injured from falling on ice covered public walks or parking areas but to
       situations in which business invitees have fallen on ice covered private
       parking areas and walks as well). In order to recover for a fall on an ice or
       snow covered surface, therefore, a plaintiff is required to prove:

             (1) that snow and ice had accumulated on the sidewalk in
             ridges or elevations of such size and character as to
             unreasonably obstruct travel and constitute a danger to
             pedestrians travelling thereon; (2) that the property owner had
             notice, either actual or constructive, of the existence of such
             condition; (3) that it was the dangerous accumulation of snow
             and ice which caused the plaintiff to fall.
      Rinaldi v. Levine. 406 Pa. 74, 78, 176 A.2d 623, 625 (1962).
      Accord Harmotta. 411 Pa.Super. at 378-79, 601 A.2d at 841; Wentz. 359 Pa.
      Super. at 5, 518 A.2d at 316.
Morin v. Traveler's Rest Motel, Inc., 704 A.2d 1085, 1087-1088 (Pa. Super. 1997).

              In certain fact patterns of slip and falls on accumulations of ice or snow on

walks, the hills-and-ridges doctrine is deemed not to apply under Pennsylvania law.

Notably, the hills-and-ridges doctrine only applies in cases of generally slippery conditions.


                                              3
See, e.g., Tonik v. Apex Garages, Inc., 442 Pa. 373 (1971) (holding that the evidence

submitted at trial was sufficient for a jury to conclude that there was liability when there

was evidence for the jury to conclude that the subject ice formed in a crack in the sidewalk

and the subject ice was not from recent precipitation); Mahoney Area School District v.

Budwash, 146 Pa.Comwlth 72, 75-76 (1992) (holding that there was a dispute of fact

sufficient for a jury when plaintiff alleges that she slipped on a patch of ice and there was

evidence that there was no precipitation for two days prior to the incident).

       Defendant-Appellee argues in its Motion for Summary Judgment, inter alia, that

judgment in its favor is warranted as a matter of law on the basis of the application of the

hills-and-ridges doctrine to the material facts of this case. See MSJ, ,r,r2-4. Plaintiff-

Appellant argues to the contrary; to wit, that there is evidence such that the hills-and-ridges

doctrine does not apply because the conditions were not generally slippery-rather,

Plaintiff-Appellant fell on a localized patch of ice. See Response, ,r,r4, 15-21, et al.



                                           FACTS

What follows is a detailed account of the facts submitted. Plaintiff-Appellant left her house

in Northeast Philadelphia at around 7:00 a.m. to go to work. See Plaintiffs New Matter in

Support of Their Opposition to Defendant's Motion for Summary Judgment (hereinafter

"Plaintiffs New Matter''), ,r2. Plaintiff-Appellant was at the comer of gth Street and Arch

Street in Philadelphia during this commute at around 8:00 am. Id., if9. She walked across

Arch Street, from the southeast comer of the intersection of gth Street and Arch Street to



                                              4
the northeast corner of gth Street and Arch Street. MSJ, 119.1 As she proceeded to walk

up the curb ramp from Arch Street onto the sidewalk, she stepped on the sidewalk, with

one or two steps, slipped and fell on ice present on the sidewalk. MSJ, 120.2 Defendant-

Appellee Parkway is the owner of the property abutting the subject sidewalk. MSJ, �6.3

Plaintiff-Appellant was taken to the emergency room from the scene of the accident; she

severely injured her ankle, requiring two surgeries. Plaintiffs Memo of Law, p. vi.

                                        Temperature.

       As to the temperature the morning of the incident, January 10, 2014, Plaintiff-

Appellant's expert John R. Scala, PhD, reports that by measurement at the Philadelphia

International Airport, some 6.8 miles from the accident location, it was 32°F at 4:52 a.m.

which gradually decreased to 30°F by 8:07 a.m. MSJ, Exh. C, pp. 2-4. Dr. Scala reports a

high temperature on that date of 37°F and a low temperature of 27°F at Philadelphia

International Airport. Id. At the Franklin Institute, approximately one mile from the

incident, Dr. Scala reports slightly colder temperatures, with a high temperature on that

date of34°F and a low temperature of26°F. Id. Defendant-Appellee's expert James Bria,

Meteorologist, opines that at the temperature at the comer of gth and Arch Street was 31 °F

at the time of the slip and fall. MSJ, Exh. D, p. 6. There is not a dispute of facts here.4


I
  MSJ is the only source of evidence. This is uncontested by Plaintiff.
2
  Defendant-Appellee disputes the location of the slip and fall (see MSJ, ft. nt. 1), and
asserts that Plaintiff-Appellant slipped and fell on Arch Street. This is disregarded for the
purposes of this motion; Plaintiff-Appellant offers evidence more favorable to her that she
fell on the sidewalk curb ramp.
3 MSJ is the only source of evidence. This is uncontested by Plaintiff.
4
  Plaintiff-appellant denied Defendant-Appellee's statement of evidence on this issue, but
fails to meet the requirements under Pa.R.C.P. 1035 to identify an "issue of fact" or
                                              5
                                         Precipitation.

       As to the nature and extent ofprecipitation on the morning of Plaintiff-Appellant's

injury, the facts submitted are as follows.

       Plaintiff-Appellant's expert, Dr. Scala, concludes that at Philadelphia International

Airport on the very early morning of the incident there was no pre-existing snow or ice

and, to paraphrase, intermittent light snow starting at 4:52 a.m., transitioning to intermittent

light freezing rain from 6:27 a.m. to 8:07 a.m. MSJ, Exh. C, p. 4. Dr. Scala opines that

these weather conditions occurred also in Center City Philadelphia which would include

the area of Plaintiff-Appellant's fall. Id., p. 6.

       Defendant-Appellee' s expert, Meteorologist James Bria, states that light freezing

rain started at 7:00 a.m. on the date of the incident at the location of the fall; the freezing

rain increased in intensity at around 8:00 a.m., and continued through 11 :00 a.m. MSJ,

Exh. D, p. 5.

       The testimony of numerous eye-witnesses to the precipitation that morning in the

area testified either to light rain, light freezing rain, or sleet. For example, Plaintiff-

Appellant testified that she was carrying an umbrella and that it was raining during her

commute.     See Plaintiff-Appellant's Response, Exh.. C, pp. 25-26, passim. Plaintiff-

Appellant's co-worker Helen Wen testified that she does not remember there being a


"evidence in the record." Compare SJM, ��9-10 (Defendant-Appellee's evidence from
both sides' expert witnesses) with Response, fl9-10 ("Denied. Plaintiff's weather expert
ultimately concluded that notice of a potential icing hazard was provided more than 16
hours before Plaintiffs accident."). Notice is not an issue in this motion; moreover SJM
if19- l O do not relate to notice. There is no material dispute as to the temperature at the
location on the date of the accident.
                                                6
freezing rain storm that day and that it was raining lightly at the approximate time and

location of the accident. See id., Exh. H, pg. 16:7-15. Plaintiff-Appellant's co-worker

Benjamin Cady testified to the precipitation being freezing rain or sleet at a train station on

his commute in Philadelphia. See id., Exh. F, pg. 14:4-5. Defendant-Appellee's employee

George Chukwu, who was working at the time of the accident, stated in his incident report

that it was" ... raining on that day." Id., Exh. B (also describing the condition as rain with

ice).

        Thus, there is no dispute that there was precipitation that day prior to and during the

slip and fall. As will be explained below, the exact nature of the precipitation does not

matter under Pennsylvania law on any version of the facts of this case.

                                        The Sidewalk Ramp.

        Plaintiff-Appellant, offers evidence from multiple sources that the sidewalk ramp

upon which Plaintiff fell had ice on it. Plaintiff-Appellant's co-worker testified that the

incline of the "accessible ramp'twas "difficult to navigate" and "very slippery." Id.;.Exh.

F, pg. 20:7-21. Plaintiff-Appellant herself testified as follows:

               Q: Then you said you fell down and then you saw ice. Can you
               describe that?
               A: Like the spot, ice, or like some was just really- I saw some spots,
               some -so the big spot, like the mirror.
               Q: Like a big spot, like a mirror, right?
               A: Yes.
               Q: Was it smooth, even shiny; is that what you're saying?
               A: Yes. On the sidewalk.
               Q: Did you see it exactly where you fell or was it like all around you?
               A: All around me.
               Q: Did you-do you know whether-did you see any boundaries to
               it or if it stopped anywhere? Was it just-when you looked around
               you, was this mirrored ice-

                                               7
             A: Mirror ice.
              Q: When you fell, did you put your hand down and was that ice right
              around where you fell?
             A: Yes.
              Q: Did you touch the ice?
             A: Yes.
             Q: \¥asits111ooth?
             A: Mm-hmm. Yes.
             Q: \Vere you ever able to see if it was-the size of the ice or was it
             just generally all around you?
             A: Generally around me.
       Defendant-Appellee's SJM, Exh. H, 29:2-30:6.

       Plaintiff-Appellant's co-worker Helen Wen testified about the area at which

Plaintiff-Appellant fell as follows: "The sidewalk was so much ice and slippery." Id., Exh.

J, pg. 17:23-24. Defendant-Appellee's employee George Chukwu testified that he came in

to work that morning at 6:30 a.m. and, due to slipperiness of the sidewalk, he applied salt,

including to the specific area on which Plaintiff-Appellant slipped and fell. Id., Exh. G,

17-21, passim. Others testified to ice and slipperiness at that curb ramp.

                                    Area around sidewalk.

       Defendant offers evidence that the slippery and slick conditions persisted that

morning throughout the Philadelphia area. See, e.g., SJM, ��13-14 (citing to news reports

about the icy conditions causing automobile accidents and other problems).             Plaintiff

testified that she does not remember any slippery conditions on the way from her home to

the bus stop on the morning of the incident. See Plaintiff-Appellant's New Matter, �3

(citing to Plaintiffs Deposition P. 23, L. 6-12.). Plaintiff testified that she saw no ice while

riding the bus. Id. Plaintiff testified that she encountered no ice on the way from the bus

stop to the comer at which she fell. Id.,�4.


                                               8
        Plaintiff-Appellant's co-worker Benjamin Cady testified on this issue that: "I would

say that just because of the precipitation given that when I walked to the train initially it

was-the conditions were varied." Plaintiff-Appellant's Response, Exh. F, 17: 10-13.

         Tangela Buck, a co-worker to Plaintiff-Appellant, testified that, after she came out

from under the overpass to the incident comer, she saw the sidewalk and ramp area shown

in a photograph as icy except for Arch Street itself, which was not icy. See Plaintiffs New

Matter, 19, (citing to Exh. E, pg. 15-16, passim) (the photograph of the subject comer is a

google street view image of the comer reproduced in the text of 19 of the New Matter;

authenticity not challenge at this stage of litigation). Testimony submitted into evidence

includes other accounts that Arch Street itself was not icy. See. e.g., id., if 13.

                 Facts viewed in a lightmost favorable to Plaintiff-Appellant.

         Given the above, the undisputed facts viewed in a light most favorable to Plaintiff-

Appellant are as follows: (a) that it was just below or around freezing in the hours before

and during Plaintiff-Appellant's fall, (b) that there was prior and ongoing light precipitation

in the form ofrain5, (c) that the subject sidewalk ramp had ice which had formed from the

precipitation, and (d) that there was no ice or snow persisting in the area of Plaintiff-

Appellant' s route or on the street surface at the intersection of gth and Arch Street, but there

was ice on the exposed surfaces persisting in some parts of Philadelphia.

                                          ANALYSIS

         On such facts, Plaintiff-Appellant cannot recover under Pennsylvania law. Again,




5   Or, if it is more favorable to Plaintiff-Appellant, freezing rain or snow.
                                                 9
 the issue is whether the facts above constitute generally icy conditions for purposes of the

 hills-and-ridges doctrine of Pennsylvania law. As it turns out, such conditions do constitute

 generally icy conditions; the explanation follows.

        The Supreme Court of Pennsylvania in Lascoskie v. Berks County Trust Co., 417

Pa. 53, 208 A.2d 463 (1965) affirmed the trial court's entry of nonsuit on a very similar

 fact pattern to the fact pattern described above as most favorable to non-movant, The

 Supreme Court described the facts underlying Lascoskie as follows:

        On Sunday, December 17, 1961, the side-walks and roads in the City of
        Reading and surrounding area were described as very slippery and icy. There
        was freezing rain and drizzle all day despite temperatures both above and
        below freezing. This freezing rain or drizzle continued until 2:00 a.m.
        Monday morning, when it changed to rain continuing until Monday
        afternoon. Except for 9:00 p.m. Sunday night, at which time the temperature
        as 32°, the temperature remained at 33 or 34 from Sunday afternoon until late
        Monday morning.

        On Monday, December 18, 1961, the plaintiff left her home (324 Spring
        Garden Street) in the City of Reading, at approximately 6:10 a.m., intending
        to walk to church. Before she left home, she had carried the garbage out to
        the rear of her yard and it was not slippery on the walk in her back yard. In
        going to church, the plaintiff walked north on Spring Garden Street to
        Bingaman Street, turned to her · right, crossed Spring Garden Street and
        walked east on Bingaman Street. A light rain or drizzle was falling and it was
        dark. [sic] although the area was illuminated by street lights. When she
        reached defendants' premises she took several steps on their brick sidewalk
        and slipped on the ice, and fell. A man following some distance behind
        plaintiff testified that when he arrived at the pavement and attempted to aid
        the plaintiff he found it to be quite slippery. No other sidewalk was slippery
        along the route that plaintiff travelled to the defendants' brick sidewalk, a
        distance of 460 feet from her home. The surface of the brick sidewalk was
        described by a commercial photographer as 'wavy', consisting of slight dips
        or hills .bearing an elevation from %"to 2".
· Lascoskie, 208 A.2d at 463-464.

        Note the similarities between the facts of Lascoskie and the instant case.         In


                                              10
Lascoskie, the temperature was at or near freezing before and during the incident. Such is

undisputed in the instant case as well. In Lascoskie, there was prior precipitation in the

area in the form of freezing rain which turned to rain as night turned to morning. Such is

undisputed in the instant case as well. In Lascoskie, plaintiff was walking a route which

did not take her by any slippery icy conditions prior to defendant' s sidewalk. Such is a

matter of Plaintiff-Appellant's best evidence in the instant case. In Lascoskie, plaintiff

slipped and fell on naturally occurring ice as a result of precipitation. Such is undisputed

in the instant case as well.

       The dissent in Lascoskie pointed to the fact that the plaintiff had only encountered

ice at defendant's property, and that this negated that there was icy and slippery conditions

"throughout the city." Lascoskie, 408 A.2d at 465 (J. Musmanno, dissenting).

       Despite the dissent's argument, the majority held that "the entire brick pavement

presented an icy condition which obviously was caused by the over-all general icy and

slippery condition which existed throughout the City immediately prior to the accident."

Lascoskie, 408 A.2d at 465. The majority held that the naturally occurring spotty icy

conditions as a result of the weather patterns, from both temperature and precipitation, in

the community to constitute generally slippery conditions for purposes of application of

the hills-and-ridges doctrine.

       Lascoskie is not an aberrant case; rather it is consistent with the body of case law

on the hills-and-ridges doctrine. See 3 West's Pa. Prac., Torts: Law and Advocacy §5.14.

Falls on ice and snow-the hills and ridges doctrine (compiling cases) ("A review of the

cases in which the courts have refused to invoke the doctrine suggests that its principal

                                             11
 function· is to protect possessors of land from overly broad liability for naturally occurring

 conditions.").

        Plaintiff-Appellant only cites to one case, Williams v. Schultz, 240 A.2d 812 (Pa.

 1967), on the issue of generally slippery conditions under the hills-and-ridges doctrine in

 her Response, which is found in her New Matter, ,i32.

        In Williams, the Supreme Court held that the hills-and-ridges doctrine does not

 apply when (a) there had been no precipitation for five days prior to plaintiff's injuries, (b)

 ice or snow accumulated in a depression in the sidewalk, which ice or snow was covered

· by leaves, ( c) the depression in the sidewalk had been there for at least one year, giving

 notice to owner, and (d) the entire area was clear of ice or snow except for some snow on

 surrounding lawns.

        The facts of Williams are very dissimilar to the facts of the instant case. The key

 differences between the facts of Williams and the instant case are the difference in the

 length of time between the precipitation and the slip and fall and difference in the surface

 conditions in the prevailing community.

        Plaintiff-Appellant cites to Williams for its statement of the underlying policy

 behind the requirement that the hills-and-ridges doctrine only applies in cases of generally

 icy conditions. See Plaintiff-Appellant's New Matter, 132. That is, "where a specific,

 localized, isolated patch of ice exists, it is comparatively easy for a property owner to take

 the necessary steps to alleviate the condition, while at the same time considerably more

 difficult for the pedestrian to avoid it even exercising the utmost care." Williams, 240 A.2d

 at 814. In the instant case, it would not have been comparatively easy for Defendant-

                                               12
Appellee to take the necessary steps to alleviate the condition given the undisputed facts

about the prevailing temperature and precipitation conditions prevailing in the community

at the time and shortly before the accident. Thus, the policy consideration expressed in

Williams does not support Plaintiff-Appellant's position; the policy consideration

undermines Plaintiff-Appellant's position.

       In light of the above, it is clear that the facts viewed in a light most favorable to

Plaintiff-Appellant nevertheless support the conclusion that the conditions at the time of

the fall were generally slippery conditions as a matter of Pennsylvania law. Lascoskie v.

Berks County Trust Co., 417 Pa. 53, > 208 A.2d 463 (1965). Because of this, the hills-and-

ridges doctrine applies. Rinaldi v. Levine, 406 Pa. 74, 176 A.2d 623, 625 (1962). All

parties agree that Plaintiff-Appellant slipped on smooth, mirror-like ice, not a hill or ridge

of snow and ice, thus Plaintiff-Appellant cannot establish breach of a duty by.Defendant-

Appellant.

       Plaintiff-Appellant argues as well that the curb ramp on which Plaintiff-Appellant

fell was excessively sloped and therefore had reduced slip resistance. See Response,·mf33-

42. Plaintiff-Appellant offers an. expert report from John S. Posusney, an engineer, citing

to a provision of the Americans with Disabilities Act, that maximum slope for a curbramp

in new construction shall be 8.33% and that the curb ramp in the instant case was 12.4% at

the time of the fall, thus the slip resistance was reduced such that 9.8% more of Plaintiff-

Appellant's weight needed to rest along the curb ramp's slope to not slip. See Response,

Exh.· A: pp. 1-2. Call this the "excessive slope-excessive slipperiness" theory.

       Defendant-Appellee argues, among other arguments, that the excessive slope-

                                              13
excessive slipperiness theory is not pleaded in the Complaint and the statute of limitations

had run. See MSJ, 33-42. Pennsylvania Courts apply the following statement of the law

in such contexts:

      For purposes of determining whether a claimed or apparent discrepancy
      between pleadings and proof constitutes a variance, the entire pleadings and
      evidence. should be considered. Generally, in order to constitute a variance,
      the discrepancy must exist between the allegations and proofs of the
      particular party, with the result that a party is not permitted to introduce
      evidence that is inconsistent with or fails to correspond to the allegations
      made by that party.

      The modem rules of pleading and practice are relatively liberal.
      Consequently, the impact of variance may be diminished by the preference
      for a liberal if not informal evaluation of pleadings emphasizing the
      determination of cases based upon their merits rather than based on mere
      technicalities, which policy, for example, may allow a party to cure a
      variance by offering, during or after trial, to amend the pleadings to conform
      to the proof.

       General pleading allegations which are not objected to because of their
       generality, may have the effect of extending the available scope of a party's
      proof, such that the proof would not constitute a variance, beyond that which
       the party might have been permitted to give under a more specific statement.
Reynolds v. Thomas Jefferson University Hosp., 450 Pa. Super. 327, 676 A.2d
1205, 1209 (1996) (citations omitted).


       Plaintiff-Appellant in her Memo of Law for her Response offers three paragraphs

from her Complaint, which she offers as proof that the excessive slope-excessive

slipperiness theory is not in variance with the Complaint. See Response Memo of Law,

pp. x-xi. Those are paragraphs 4, 5, and l S(b), which are reproduced immediately below:

       4. On January 10, 2014, plaintiff, Su Hung, was lawfully traversing the
       sidewalk located at 721-37 Arch Street, in Philadelphia, Pennsylvania, when
       she slipped and fell as a result of a dangerous and defective condition in the
       form of ice which was allowed to exist and accumulate in the walkway of
       Defendant's property, which said dangerous and defective condition caused

                                            14
       Plaintiff to slip and fall to the ground,. resulting in serious and permanent
       injuries.

       5. On or about January 10, 2014, and for a substantial period of time thereto,
       the aforementioned dangerous and defective condition that did and was
       allowed to exist upon [sic] Defendants' premises is the sole and direct cause
       of Plaintiffs serious, painful and permanent injuries, the exact nature of
       which will be described more fully hereinafter.

       l 5(b). 6 The aforesaid incident was solely and proximately caused by the
       negligence of the. Defendant, its servants, workmen, representatives and/or
       employees, which negligence consisted of but was not necessarily limited to
       the following:

              (b) Failing to properly inspect and remedy the dangerous, unsafe and
              defective condition upon the property, upon proper notice, actual or
              constructive, of its dangerous condition;

MSJ, Exh. A, ,r,i4, 5, and 15(b).

       Even under a liberal interpretation of Plaintiff-Appellant's argument, it does appear

that, under paragraph 4 the dangerous condition is identified as the ice; under paragraph 5

the dangerous condition of ice is identified as the sole and proximate cause of Plaintiffs

fall; and under paragraph 15(b) the negligence with respect to the dangerous condition of

ice consisted of but is not limited to Defendant's negligent inspection of the dangerous ice

or negligent remedy of the dangerous ice. Thus, Plaintiff-Appellant fails to offer       an
argument that she can recover on the excessive slope-excessive slipperiness theory.

Reynolds v. Thomas Jefferson University Hosp., 450 Pa. Super. 327, 676 A.2d 1205, 1209

(1996) ("Generally, in order to constitute a variance, the discrepancy must exist between


6
  Plaintiff-Appellant, in the block text of her Memo of Law dedicated to her Complaint
15(b), cites to 15(b) but does not quote 15(b); instead, Plaintiff-Appellant uses words
altogether different and not in the Complaint. What is reproduced in this Opinion is the
text of 15(b) of the Complaint.
                                             15
the allegations and proofs of the particular party, with the result that a party is not permitted

to introduce evidence that is inconsistent with or fails to correspond to the allegations made

by that party.) (citations omitted).

       On the assumption that Plaintiff-Appellant's excessive slope-excessive slipperiness

theory does not materially vary with paragraphs 4, 5 and 15(b) of Plaintiffs Complaint,

still Plaintiff-Appellant clearly cannot recover. This is because the dangerous condition of

the excessive slope of the curb ramp did not cause the ice to exist or persist, as is required

in cases in which there are not generally slippery conditions of ice or snow for purposes of

the hills-and-ridges doctrine. See, e.g., Tonikv. Apex Garages, Inc., 442 Pa. 373, 275 A.2d

296 ( 1971) · (there was evidence that ice had formed over a crack in the sidewalk and

evidence that there was no recent precipitation); Williams v. Shultz, 429 Pa. 429, 240 A.2d

812 (1968) (evidence that ice had formed in a depression in the sidewalk and evidence that

there had been no rain for five days and no snow for ten days); Holbert v. City of

Philadelphia, 221 Pa. 266, 70 A.746 (1908) ("While, however, the city is not responsible

for the general slippery condition of its sidewalks caused by the recent falling or freezing

of rain or snow, yet the rule does not extend so far as to protect the city from liability for

injuries caused to a person by slipping on ice, in a street or sidewalk, where it has

accumulated by reason of a defect in the street or walk, or by reason of the.neglect to

construct and maintain suitable drains to carry off the water."), There simply is not any

evidence before the court in this motion that the defective condition complained of caused

the ice to exist or persist, or evidence that the ice existed or persisted for any duration

beyond the timeframe of the active precipitation in the community.

                                               16
...


            In any event, even on the liberal interpretation of Plaintiff-Appellant's Complaint,

      paragraphs 4, 5, and 15(b), Plaintiff-Appellant fail to contain any provision which would

      allow an excessive slope theory to proceed.



                                          CONCLUSION

            This court's Order granting summary judgment to Defendant-Appellee should be

      affirmed. To hold otherwise would be to "impose an impossible burden in view of the

      climatic conditions in this hemisphere." Wentz v. Pennswood Apartments. 359 Pa. Super.

      1, 5, 518 A.2d 314, 316 (1986).

                                                         BY THE COURT:




                                                    17
...


 TYPE OF ORDER: 1925(a)


                                     PROOF OF SERVICE

 I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and in
 the manner indicated below:


 Appellant Counsel:    David Brian Rodden, Esq.
                       125 North 20th Street
                       Philadelphia, PA 10103
  Type of Service:     ( ) Personal Service (X) First Class Mail     ( ) Other:           _




 Appellee Counsel:      Brian L. Calistri, Esq.
                        2000 Market Street, Suite 1300
                        Philadelphia, PA 19103
  Type of Service:      ( ) Personal Service (X) First Class Mail    ( ) Other:           _




 Date: February 13, 2017




  Law Clerk to the
  Honorable Karen Shreeves-Johns
