           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chastity Lesh,                                :
                                              :
                              Appellant       :
                                              :
                       v.                     : No. 549 C.D. 2018
                                              : Argued: October 16, 2018
Erie International Airport                    :
Services, LLC, t/d/b/a Erie                   :
International Airport Authority               :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                FILED: December 17, 2018


               Chastity Lesh (Appellant) appeals1 from the May 26, 2017 order of the
Court of Common Pleas of Erie County (trial court) granting the motion for
summary judgment filed by Erie International Airport Services, LLC, t/d/b/a Erie
International Airport, and Erie Regional Airport Authority (collectively, ERAA) and
dismissing Appellant’s civil complaint with prejudice.2 We affirm.
                 Appellant was employed as a customer service agent for Piedmont
Airlines, which provided service for U.S. Airways and Delta Airlines flights at the

       1
         This appeal was originally filed with Superior Court, which sua sponte transferred the
matter to this Court by order dated March 6, 2018.

       2
          According to Appellant’s complaint, appellee Erie International Airport Services, LLC,
t/d/b/a Erie International Airport, is a Pennsylvania corporation and appellee Erie Regional Airport
Authority is a Pennsylvania Municipal Authority. Both entities have the same business address.
The same counsel represents both appellees and refers to them collectively as ERAA.
Erie International Airport. On January 6, 2011, she began work at 4:00 a.m. and was
responsible for checking in passengers for a Delta flight scheduled to depart at 6:00
a.m. After the passengers boarded, she walked down the jet way to exchange
paperwork with the aircraft’s captain. Appellant then noticed that the ground power
unit (GPU), a power cord running from the aircraft to the jet bridge, had not been
unplugged. She walked down the jet bridge stairs to the outside ramp, and then
walked under the jet bridge to the nose of the aircraft to get the captain’s
authorization to unplug the GPU. The captain gave his approval, and she walked
approximately ten steps to the GPU and unplugged it. After taking a step or two
away, she slipped on ice and fell.
              Appellant suffered multiple fractures to her tibia and fibula; she
underwent three surgeries; and she was subsequently diagnosed with reflex
sympathetic dystrophy. On December 24, 2012, she filed a complaint against ERAA
seeking damages for injuries she sustained in the slip and fall, alleging that ERAA
was negligent in allowing extremely icy and slippery conditions to exist on the
premises. Reproduced Record (R.R.) at 2-8. ERAA filed an Answer and New
Matter, and Appellant filed a Reply to the New Matter. After the close of discovery,
ERAA filed a motion for summary judgment. The trial court heard argument on the
motion at a hearing on April 26, 2017. By opinion and order dated May 26, 2017,
the trial court granted ERAA’s motion for summary judgment and dismissed
Appellant’s complaint.
              In granting the motion, the trial court determined that Appellant’s
claim was precluded by the “hills and ridges” doctrine. The trial court further
concluded that a lease agreement between ERAA and Piedmont Airlines relieved
ERAA of any duty to clear ice and snow from the area. Finally, the trial court


                                         2
concluded that Appellant failed to establish that her claim fell within an exception
to immunity under the act commonly known as the Political Subdivision Tort Claims
Act (Tort Claims Act), 42 Pa. C.S. §§8541-8542.
                 On appeal,3 Appellant argues that the trial court erred in granting
summary judgment. Specifically, Appellant maintains that: the lease agreement did
not relieve ERAA of the duty to clear ice and snow from the area around the aircraft;
genuine issues of material fact existed concerning whether generally slippery
conditions were present, as necessary for application of the hills and ridges doctrine;
and the facts fall within the real property exception to governmental immunity.
               At the time of Appellant’s fall, a lease agreement between ERAA and
Piedmont Airlines provided:

       3
          On appeal from a trial court’s order granting or denying summary judgment, our standard
of review is de novo and our scope of review is plenary. Pentlong Corporation v. GLS Capital,
Inc., 72 A.3d 818, 823 n.6 (Pa. Cmwlth. 2013). Summary judgment is properly entered only when,
“after examining the record in the light most favorable to the non-moving party, and resolving of
all doubts as to the existence of a genuine issue of material fact against the moving party, the
moving party is clearly entitled to judgment as a matter of law.” Pyeritz v. Commonwealth, 32
A.3d 687, 692 (Pa. 2011). An appellate court may disturb a trial court’s order granting summary
judgment only where there has been an error of law or an abuse of discretion. Kilgore v. City of
Philadelphia, 717 A.2d 514 (Pa. 1998).
        A party is entitled to summary judgment as a matter of law: (1) 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 (2) if, after the completion of discovery relevant
to the motion, 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. Pa. R.C.P. No. 1035.2.
        The moving party has the burden of proving the nonexistence of any genuine issue of
material fact. Kilgore. The moving party may make the showing necessary to support the grant
of summary judgment by showing that the non-moving party “is unable to satisfy a necessary
element of his cause of action.” Shipley Fuels Marketing, LLC v. Medrow, 37 A.3d 1215, 1217
(Pa. Super. 2012). The court must 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. Kilgore. Summary judgment is granted only where the right to it is clear and
free from doubt. Id.
                                                  3
              MAINTENANCE. Airline shall at all times maintain its
              exclusive leased areas, the ramp under and around its
              aircraft when in use by it, and the areas immediately
              adjacent to either, in a neat, clean, safe and orderly
              condition; excluding the janitorial service provided in the
              terminal common area by the Authority and major
              ramp/apron maintenance.
R.R. at 46.
              Appellant argues that the trial court erred in relying on the lease
agreement to conclude that ERAA did not have possession and control over the area
when she fell. Appellant maintains that a determination of who is a possessor of
land is a question of fact to be decided by a jury. She relies on the definition of a
possessor of land in Restatement (Second) of Torts §328E:

              A possessor of land is (a) a person who is in occupation of
              the land with the intent to control it; or (b) a person who
              has been in occupation of land with intent to control it, if
              no other person has subsequently occupied it with intent
              to control it; or (c) a person who is entitled to immediate
              occupation of land, if no other person is in possession
              under clauses (a) or (b).
              Appellant contends that occupation and control, i.e., physical
possession, rather than legal title, determines possession for purposes of §328E.
Appellant emphasizes that under the lease, ERAA had possession and control of the
area at issue both before an aircraft was parked at the gate and after an aircraft left
the gate. Appellant also asserts that, regardless of the lease, ERAA created a duty
to clear ice and snow from the premises by its course of conduct in clearing ice and
snow. According to Appellant, testimony offered by witnesses concerning the
removal of ice and snow by ERAA employees creates an issue of material fact
precluding summary judgment.

                                           4
             ERAA argues that this latter argument is waived because Appellant did
not raise it before the trial court. Supplemental Reproduced Record at 14b-24b.
ERAA further contends that, in any event, the testimony cited by Appellant is
insufficient to create a genuine issue of material fact as to whether ERAA had a duty
to remove ice or snow at the time of her fall. We agree.
             A “possessor of land” is a person who occupies land with intent to
control it. Restatement (Second) of Torts §328E. Appellant correctly notes that
whether a party is a “possessor of land” is a determination to be made by the trier of
fact. Blackman v. Federal Realty Investment Trust, 664 A.2d 139 (Pa. Super. 1995).
Nevertheless, where the alleged “possessor of land” has filed a motion for summary
judgment and asserted that the non-moving party has not produced evidence to
establish that the moving party is a “possessor of land,” the non-moving party must
identify evidence establishing that fact in its response to the motion. See Pa. R.C.P.
No. 1035.3(a)(2).
             Here, Appellant offered no evidence to establish facts that would bring
ERAA within the definition of possessor of land in §328E. The terms of the lease
reflect that ERAA did not have the “intent to control” the area. Rather, the lease
agreement states that the airline was required “at all times [to] maintain its exclusive
leased areas, the ramp under and around its aircraft when in use by it, and the areas
immediately adjacent to either, in a neat, clean, safe and orderly condition.” R.R. at
46. Moreover, there is no dispute that the aircraft was parked at the gate overnight,
and Appellant admits that ERAA employees were limited in their access to the area
for snow and ice removal when the aircraft was at the gate. Appellant’s brief at 19
(citing the maintenance provisions of the lease, R.R. at 46). Thus, ERAA did not
have access to the area beginning the night before Appellant’s fall, while rain and/or


                                           5
snow was falling. The record supports the trial court’s determination that ERAA did
not have possession and control over the area at the relevant time.
             Appellant further argues that the trial court erred in applying the hills
and ridges doctrine. In Moon v. Dauphin County, 129 A.3d 16 (Pa. Cmwlth. 2015),
we explained:

             The [‘hills and ridges 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.
             It 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.
             The [hills and ridges doctrine] provides that an owner or
             occupier of land is not liable for general slippery
             conditions, for 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.
             Snow and ice upon a pavement create merely transient
             danger, and the only duty upon the property owner or
             tenant is to act within a reasonable time after notice to
             remove it when it is in a dangerous condition.
             Thus, in order to recover for a fall on ice or snow, an
             injured party must prove the following factual elements:
             (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 a condition; and (3) that it was the dangerous
             accumulation of snow and ice which caused the plaintiff
             to fall.



                                          6
129 A.3d at 22-23 (emphasis in original and citations and internal quotations
omitted).
             Appellant contends that an exception to the hills and ridges doctrine
was recognized in Williams v. Shultz, 240 A.2d 812, 813-14 (Pa. 1968), and applies
in this case. In Williams, the appellant was walking along a sidewalk that from all
outward appearances was free from ice and snow. A portion of the sidewalk was
covered by leaves. When the appellant stepped on the leaves, she slipped and fell
on a patch of ice hidden underneath them. The relevant weather records in Williams
showed that the last snow fell 11 days before the accident and the last rain fell 5 days
before. Additionally, the evidence showed that the entire area was generally free of
ice or snow. The Supreme Court reversed the trial court’s grant of compulsory
nonsuit on the basis that the appellant failed to establish the existence of hills and
ridges of ice on the sidewalk. In doing so, the Court stated that, “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 using the utmost care.”
240 A.2d at 814. Because those circumstances were found to exist, the Court held
in Williams that the appellant was not required to prove the existence of hills and
ridges.
             ERAA argues that Williams does not apply, because the uncontroverted
testimony of all witnesses, including Appellant, establishes that conditions around
the ramp and in the area were generally slippery, there was patchy ice all over, and
there was precipitation the day before and the day of Appellant’s accident. We
agree.




                                           7
               Viewing the record in the light most favorable to Appellant, the record
establishes that when Appellant went outside earlier that morning, there was patchy
ice all over the area at issue. As the trial court noted, the Record of Climatological
Observations at Erie International Airport for January 6, 2011, reflects that in a
twenty-four hour period, the maximum temperature was 28 degrees; the minimum
temperature was 20 degrees; .26 inches of rain/melted snow had accumulated; and
3.6 inches of snow/ice pellets/ hail had accumulated, with a trace amount of snow/ice
pellets/ice being observed on the ground. R.R. at 1. Appellant stated that she saw
“patchy ice all over.” R.R. at 624-25, 632, 636, 642, 646. Thus, Appellant’s own
testimony establishes that ERAA did not permit ice to unreasonably accumulate in
ridges or elevations that caused her to fall and that the ice on which she fell was not
a “localized, isolated patch.” Consequently, the trial court ruled that the action was
precluded by the “hills and ridges” doctrine.
               Generally, local agencies are immune from tort liability under Section
8541 of the Tort Claims Act. Gibellino v. Manchester Twp., 109 A.3d 336, 342 (Pa.
Cmwlth. 2015). However, a local agency may be liable for damages if the damages:
(1) would be recoverable under common law or a statute creating a cause of action;
(2) were caused by the negligent act of the local agency or its employees acting
within the scope of their employment; and (3) were caused by one of the specific
acts enumerated in Section 8542(b) of the Act.
               Section 8542(b)(3) of the Tort Claims Act states:
             (b) Acts which may impose liability.-- The following
             acts by a local agency or any of its employees may result
             in the imposition of liability on a local agency:
                                          ...
             (3) Real property.-- The care, custody or control of real
             property in the possession of the local agency, except that
                                          8
              the local agency shall not be liable for damages on account
              of any injury sustained by a person intentionally
              trespassing on real property in the possession of the local
              agency. As used in this paragraph, ‘real property’ shall
              not include:

              (i) trees, traffic signs, lights and other traffic controls,
              street lights and street lighting systems;
              (ii) facilities of steam, sewer, water, gas and electric
              systems owned by the local agency and located within
              rights-of-way;
              (iii) streets; or
              (iv) sidewalks.
42 Pa.C.S. §8542(b)(3) (emphasis added). The determinative inquiry under the real
property exception to governmental immunity is whether the injury was caused by
the care, custody, or control of the real property itself. Grieff v. Reisinger, 693 A.2d
195 (Pa. 1997).4
              Appellant argues that the trial court erred in concluding that the real
property exception to governmental immunity does not apply in this case. In support
of this argument, she asserts that ERAA employees were responsible for
maintenance around the ramp and the plane before the plane was parked at the gate,
while there was precipitation, and she asserts that this alone is sufficient to establish
ERAA’s liability. Appellant also cites testimony that it was common practice for
ERAA’s union employees to maintain the ramp area.
              However, for purposes of the real property exception to governmental
immunity, “possession” means total control over the premises. City of Pittsburgh v.
Estate of Stahlman, 677 A.2d 384, 387 (Pa. Cmwlth. 1996). “[L]imited control or
mere occupation of the premises for a limited period is insufficient to impose


       4
         The trial court and ERAA incorrectly state that the injury must arise from a dangerous
condition of the real property itself.
                                              9
liability.” Id. The trial court correctly concluded that Appellant failed to present
evidence demonstrating that ERAA had total control of the property.
             In sum, the trial court correctly held that the hills and ridges doctrine
precluded Appellant’s claims because (1) no evidence was presented to establish an
accumulation of snow or ice in ridges and (2) the uncontradicted evidence
established icy conditions existed all around the jet way area where the aircraft had
been parked overnight. Additionally, the trial court correctly concluded that ERAA
was not in possession of the area, based on the terms of the lease agreement as well
as testimony establishing that ERAA did not have total possession of the area.
Consequently, Appellant did not prove that damages are recoverable under common
law or statute, or that her injuries resulted from negligent acts of agency employees,
as required under the Tort Claims Act.
             Accordingly, we affirm.




                                         MICHAEL H. WOJCIK, Judge




                                          10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chastity Lesh,                        :
                                      :
                         Appellant    :
                                      :
                   v.                 : No. 549 C.D. 2018
                                      :
Erie International Airport            :
Services, LLC, t/d/b/a Erie           :
International Airport Authority       :


                                     ORDER


            AND NOW, this 17th day of December, 2018, the order of the Court of
Common Pleas of Erie County, dated May 26, 2017, is AFFIRMED.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
