J-A15018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARGARET DENZEL                                     IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

FEDERAL CLEANING CONTRACTORS AND
J. FOSTER & SONS, INC. AND POAG &
MCEWEN LIFESTYLE CENTER, LLC, THE
PROMENADE SHOPS AT SAUCON VALLEY
A/K/A PROMENADE SHOPS AT SAUCON
VALLEY, AND PRUDENTIAL INVESTMENT
MANAGEMENT, INC.

                            Appellees                   No. 3307 EDA 2014


                    Appeal from the Order November 6, 2014
                 In the Court of Common Pleas of Lehigh County
                     Civil Division at No(s): No. 2013-C-1078


BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                             FILED OCTOBER 09, 2015

        Appellant, Margaret Denzel, appeals from the November 6, 2014 order

granting summary judgment in favor of Appellees, Federal Cleaning

Contractors, Inc. (Federal), J. Foster and Sons, Inc. (Foster), Poag &

McEwen Lifestyle Center, LLC (Poag), the Promenade Shops at Saucon Valley

(Promenade       Shops),     and    Prudential   Investment    Management,   Inc.

(Prudential). After careful review, we affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      The trial court set forth the pertinent factual history in its opinion filed

in support of its order granting summary judgment in favor of Appellees, as

follows.

                  Plaintiff, [Appellant] alleges that on February
            12, 2010, she sustained injuries at [Promenade
            Shops], a shopping center. [Appellant] claims that
            she slipped on the sidewalk in front of The Children’s
            Place store due to “certain elevations and
            accumulations of hills and ridges of ice and/or snow.”

                   [Appellant] sued the owners and management
            entities of the shopping center, … [and] the two
            contractors who performed sidewalk snow removal at
            the shopping center[, Appellees].

                  The Promenade [Shops] is an outdoor
            shopping mall, approximately 475,000 square feet.
            The Promenade Shops consists of several large
            buildings with various stores, each with their own
            exterior entrance. The stores are bordered with wide
            sidewalks along two-lane driveways.

                  Prior to [Appellant]’s fall, a snowstorm brought
            17 inches of snow to Allentown starting 7 p.m. on
            February 9, 2010 until 7 p.m. on February 10, 2010.
            Due to the magnitude of the storm, Federal
            performed snow removal and salting activities for
            three days, from February 10, 2010 through
            February 12, 2010. At the time of [Appellant]’s fall,
            Federal still had four employees on duty. Foster had
            laborers working the same time period, including six
            at the time of [Appellant]’s fall.

                  [Appellant] is a school librarian in the North
            Penn School District, which was closed February 11
            and 12 due to snow-day cancellations. Due to the
            snow day, [Appellant] did not have to work and was
            packing for a vacation to Arizona. She drove to the
            Promenade to buy sneakers for her trip the following
            day. She went to the Sneaker King and purchased a
            pair of shoes. The sidewalks were “absolutely clear

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          on her path into Sneaker King.” [Appellant] alleges
          the “whole front looked perfect” and dry.

                 After her purchase, [Appellant] was headed to
          Ann Taylor Loft to see if there were any big sales.
          She had no specific need, but just wanted to browse.
          She was carrying a purse and her newly purchased
          sneakers in a plastic bag. Immediately prior to her
          fall, [Appellant] saw a clean-up crew and that the
          area she was headed towards had snow and was
          “not cleaned up.”

                After turning the corner, [Appellant] slipped
          and fell in front of the Children’s Place store. She
          saw the snow and the ice ahead of her and fell while
          attempting to negotiate around it safely.          The
          Children’s Place was a party to this suit, however a
          stipulated dismissal was filed on June 3, 2014.
          [Appellant] fell on the sidewalk and while she was
          supine and waiting for the ambulance, she took
          photos of the area. She believed she slipped on
          black ice, and said if she could have seen it, she
          would “not walk on a chunk of ice.” [Appellant]
          stated “[a]s I got to the corner, I saw that there was
          snow—I knew I was going to have to be careful
          because it was snow and ice there at the end there.”

                After [Appellant]’s fall, Allied Barton Security
          filed an incident report at 11:11 a.m. on Friday,
          February 12, 2010.         On the incident report
          “voluntary statement made by complainant,” reads
          “I should have stayed home. This place is a mess.”
          At her deposition, [Appellant] was asked if she saw
          the patches of snow and ice before her fall, she
          replied “I guess I could see that it was in front — it
          was off in front of me.” [Appellant] did state she
          knew she would have to be careful, but decided to
          proceed.

                Defendants, Federal, Prudential, Poag and
          Promenade [Shops] filed a Motion for Summary
          Judgment on July 8, 2014 and Defendant, … Foster
          … filed a Motion for Summary Judgment on July 9,


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              2014. [Appellant] responded on August 5, 2014 and
              argument was held August 18, 2014.

Trial Court Opinion, 11/6/14, at 2-4 (internal citations omitted).

       Thereafter, on November 6, 2014, the trial court granted Appellees’

motion for summary judgment.            On November 24, 2014, Appellant filed a

timely notice of appeal.1

       On appeal, Appellant raises the following issue for our review.

              1. Did the trial court err and/or abuse its discretion
              in finding that as a matter of law the [Appellant]
              assumed the risk of confronting a known and obvious
              condition, relieving [Appellees] of a duty where the
              undisputed facts are:

                     (a)   At the time of [Appellant]’s accident,
                     [Appellees]     were    charged    with   the
                     responsibility of maintenance, possession and
                     control of an outdoor retail mall called the
                     Promenade Shops at Saucon Valley;

                     (b)    That the area in question received
                     approximately 17 inches of snow, which
                     precipitation ended approximately forty (40)
                     hours prior to [Appellant]’s fall;

                     (c) That at the time of the accident, the
                     [Appellant] was a business invitee;

                     (d) That on February 12, 2010, [Appellees]
                     chose to open the mall for business to its
                     customers;

____________________________________________


1
   [Appellant] and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. We note, on December 18, 2014, the trial court
filed its Rule 1925(a) statement, and therein, adopted the reasoning set
forth in its November 6, 2014 opinion.



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                   (e) That [Appellant] at no time whatsoever
                   admitted in her deposition to knowingly
                   walking through or onto ice, but rather
                   unequivocally stated numerous times that she
                   believed she was stepping onto the dry and
                   clear patches of pavement she perceived and
                   walking on same when her foot came into
                   contact with an area of black ice that she did
                   not see or appreciate before it caused her to
                   slip and fall.

Appellant’s Brief at 4.

      Our standard of review of an order granting summary judgment is well

settled.    Our task is “to determine whether the trial court abused its

discretion or committed an error of law[,] and our scope of review is

plenary.”   Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1193 (Pa.

Super. 2015) (citation omitted).

             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. When 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 [he] bears
             the burden of proof … establishes the entitlement of
             the moving party to judgment as a matter of law.
             Lastly, we will review 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.




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Cigna Corp. v. Exec. Risk Indem., Inc., 111 A.3d 204, 210 (Pa. Super.

2015), quoting Murphy v. Duquesne University of the Holy Ghost, 777

A.2d 418, 429 (Pa. 2001). “[O]ur responsibility as an appellate court is to

determine whether the record either establishes that the material facts are

undisputed or contains insufficient evidence of facts to make out a prima

facie cause of action, such that there is no issue to be decided by the fact-

finder.” Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa.

Super. 2015) (en banc) (citation omitted), appeal denied, 117 A.3d 298 (Pa.

2015).   Consequently, if the record contains evidence that would allow a

fact-finder to return a verdict in favor of the non-movant, then summary

judgment is not proper. Id.

      Instantly, Appellant argues “[t]he trial court erred in holding that as a

matter of law [Appellant] assumed the risk of her injury, relieving

[Appellees] of a duty to care, notwithstanding the fact that many factual

issues remain on said conduct taken by both [Appellant] and [the]

defendants in this case.”     Appellant’s Brief at 10.   Specifically, Appellant

argues she “did not subjectively know she was walking on ice before her fall.

While she saw ice and snow ahead of her, she was attempting to negotiate

around it safely, when she fell.” Id. at 13. Appellant then quotes various

portions of her deposition and posits as follows.

                   None of the statements are referred to in the
            trial court’s opinion, and each and every one of them
            suggests that [Appellant] was in fact trying to
            exercise due care and caution, acknowledging at all

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             times that the entire sidewalk was not fully covered
             with ice and snow, but rather, that there were
             patches of ice and snow that she chose to navigate
             between and that in attempting to exercise care, she
             slipped as a result of black ice being on the
             pavement that she never saw which she thought was
             pavement.

Id. at 20.

      As Appellant’s claim sounds in negligence, she must establish that

Appellees owed her a duty, Appellees breached that duty, and that

Appellant’s injuries were a result of Appellees’ breach of duty. Casselbury

v. Am. Food Serv., 30 A.3d 510, 512-513 (Pa. Super. 2011); Cooper v.

Frankford Health Care Sys., Inc., 960 A.2d 134, 140 n.2 (Pa. Super.

2008) (citation omitted), appeal denied, 970 A.2d 431 (Pa. 2009).

Furthermore, Appellant has the burden of proving all of the above elements.

Feeney v. Disston Manor Pers. Care Home, Inc., 849 A.2d 590, 594 (Pa.

Super. 2004), appeal denied, 864 A.2d 529 (Pa. 2004).

      Moreover, “[t]he standard of care owed to an individual by a possessor

of land depends upon whether the individual is a trespasser, licensee or

invitee.”    Banks v. Trustees of Univ. of Pa., 666 A.2d 329, 331 (Pa.

Super. 1995) (citations omitted).     When a plaintiff is on a defendant’s

premises as a business invitee, as is the case here, this Court has

recognized the following duty of the landowner.

             § 343 Dangerous Conditions Known to or
             Discoverable by Possessor




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              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 of harm to such
              invitees, and

              (b) should expect that they will not discover or
              realize the danger, or will fail to protect themselves
              against it, and

              (c) fails to exercise reasonable care to protect them
              against the danger.

RESTATEMENT (SECOND) OF TORTS § 343. Further, this section should be read in

conjunction with the following.

              § 343A Known or Obvious Dangers

              (1) A possessor of land is not liable to his invitees for
              physical harm caused to them by any activity or
              condition on the land whose danger is known or
              obvious to them, unless the possessor should
              anticipate the harm despite such knowledge or
              obviousness.

Id. § 343A.

      In Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983), our Supreme

Court held that “to say that the invitee assumed the risk of injury from a

known and avoidable danger is simply another way of expressing the lack of

any duty on the part of the possessor to protect the invitee against such

dangers.” Id. at 125. Carrender was a patient attending an appointment at

a chiropractic clinic when she slipped and fell on ice in the clinic’s parking



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lot. Id. at 121. Carrender testified at trial that while sitting in her car she

became aware of the slippery conditions in the parking lot, and that there

was a sheet of ice covering the area next to her car.           Id. at 121-122.

Despite the fact that she acknowledged there were clear areas in the parking

lot where she could have moved her car, Carrender attempted to maneuver

through the ice on which she fell and fractured her hip.             Id. at 122.

Carrender admitted that she saw the ice but testified that she tried to avoid

it.   Id.   Based on Carrender’s testimony our Supreme Court held “that

[Carrender]’s own testimony compels the conclusion that, as a matter of

law, [the clinic was] under no duty either to take precautions against or to

warn of the isolated patch of ice on the parking lot.”               Id. at 123.

Accordingly, the Carrender Court concluded as follows.

              In light of [Carrender]’s uncontradicted testimony, it
              must be concluded that the danger posed by the
              isolated patch of ice was both obvious and known,
              and that [the clinic] could have reasonably expected
              that the danger would be avoided.               Thus,
              [Carrender] failed to establish the element of duty
              essential to a prima facie case of negligence, and
              [the clinic was] therefore entitled to a judgment
              notwithstanding the verdict.

Id. at 124.

       This Court has adhered to the holding of Carrender.

                    In Carrender[], which remains controlling
              precedent in Pennsylvania, our Supreme Court
              established that assumption of the risk is, as the trial
              court explained, a function of the duty analysis:




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                        Appellee misperceives the relationship
                 between the assumption-of-risk doctrine and
                 the rule that a possessor of land is not liable to
                 his invitees for obvious dangers. When an
                 invitee enters business premises, discovers
                 dangerous conditions which are both obvious
                 and avoidable, and nevertheless proceeds
                 voluntarily to encounter them, the doctrine of
                 assumption of risk operates merely as a
                 counterpart to the possessor’s lack of duty to
                 protect the invitee from those risks. By
                 voluntarily proceeding to encounter a known or
                 obvious danger, the invitee is deemed to have
                 agreed to accept the risk and to undertake to
                 look out for himself. It is precisely because the
                 invitee assumes the risk of injury from obvious
                 and avoidable dangers that the possessor owes
                 the invitee no duty to take measures to
                 alleviate those dangers. Thus, to say that the
                 invitee assumed the risk of injury from a
                 known and avoidable danger is simply another
                 way of expressing the lack of any duty on the
                 part of the possessor to protect the invitee
                 against such dangers.

           Montagazzi [v. Crisci], 994 A.2d [626,] 635–36
           [(Pa. Super. 2010)] (quoting Carrender, 469 A.2d
           at 125).

Longwood v. Giordano, 57 A.3d 163, 167 (Pa. Super. 2012), appeal

denied, 79 A.3d 1099 (Pa. 2013).

     Upon careful review of the evidence, viewed in the light most favorable

to Appellant as the non-moving party, we are compelled to agree with the

trial court’s conclusion that summary judgment in favor of Appellees was

proper.   The facts herein are substantially analogous to the facts in

Carrender. At Appellant’s deposition on March 6, 2014, Appellant testified

that on the date of the incident she had initially gone to the Promenade to

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buy sneakers at Sneaker King. N.T., 3/6/14, at 29. Appellant testified that

the walkway leading to Sneaker King was clear of snow, ice, and slush, and

to her recollection was completely dry. Id. at 41. She then headed to Ann

Taylor Loft, and on the walk there approached people working on removing

snow from the road adjacent to the sidewalk.        Id. at 44.   Appellant then

identified five photographs she took on her iPhone from the ground where

she had fallen. Id. at 48-49. The pictures indicated snow, slush and ice on

the sidewalk, which Appellant conceded she observed at the time, but that

she “tr[ied] to walk on the cleared-off space[.]”        Id. at 52.     Appellant

described the condition of the sidewalk as follows.

            It was fine when I left the sneaker store. It was
            okay making the right turn there. As I got to the
            corner, I saw that there was snow - - I knew I was
            going to have to be careful because it was snow and
            ice there at the end there. In the area I fell in, that’s
            why I took the pictures of it.

Id. at 171. She further testified as follows.

            Q. And when you saw these conditions, you knew
            they were dangerous?

            A. I had to be very careful where I walked.

            Q. Did you know they were dangerous?

            A. I knew I saw snow and ice.

            Q. Did you know they were dangerous?

            A. Snow and ice, yes. Yes.

                                       ….


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              Q. Why did you not, at that point, simply turn
              around and walk back over the fine, dry sidewalk to
              your car?

              A. Because I - - I saw spots that I thought were dry
              and I just kept going.

              Q. Was there any reason why you could not have
              simply turned around and went back to your car?

              A. No. I could have. No.

Id. at 173.

     As the foregoing testimony clearly illustrates, Appellant became aware

of the ice and snow on the sidewalk in front of her. Appellant’s testimony

further reveals that, although aware of the dangerous condition she was

approaching, she chose to traverse the area anyway hoping to avoid the ice.

As in Carrender, Appellant became aware of the obvious danger of walking

on the ice and therefore Appellees could reasonably have expected that the

risk would be avoided.      Based on the forgoing, we agree that Appellant

cannot establish a prima facie case for negligence, and as a result summary

judgment was properly granted. See Casselbury, supra; Cooper, supra;

Feeney, supra.

     Based on the foregoing, we conclude that Appellant’s sole issue on

appeal is devoid of merit. Accordingly, we affirm the trial court’s November

6, 2014 order granting summary judgment in favor of Appellees.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2015




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