J-A31024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTINE M. RAFALKO AND                          IN THE SUPERIOR COURT OF
ADAM RAFALKO, HER HUSBAND                               PENNSYLVANIA

                            Appellant

                       v.

WILLIAM SWEENEY, INDIVIDUALLY AND
WILLIAM SWEENEY D/B/A BITTY’S
BILL’S, LLC, A/K/A BITTY BILLS AND
STEPHEN E. HUNISCH AND VIRGINIA A.
HUNISCH

                            Appellees                  No. 617 MDA 2015


                Appeal from the Order Entered March 24, 2015
             In the Court of Common Pleas of Lackawanna County
                      Civil Division at No(s): 2012-04596


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED JANUARY 29, 2016

        Christine and Michael Rafalko (collectively, Rafalko) appeal from the

order of the Court of Common Pleas of Lackawanna County granting

summary judgment in favor of William Sweeney (Sweeney), Individually and

William Sweeney D/B/A Bitty’s Bill’s, LLC, A/K/A Bitty Bills and Stephen E.

Hunisch and Virginia A. Hunisch (collectively, Appellees).      For the reasons

set forth herein, we reverse and remand for proceedings consistent with this

memorandum.

        The trial court summarized the facts of this case as follows:
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       Defendant William Sweeney is the owner and operator of an
       outdoor ice cream shop known as “Bitty Bills,” located at 4211
       Birney Avenue, Moosic, Pennsylvania. Defendants Stephen and
       Virginia Hunisch leased the ice cream shop premises to Mr.
       Sweeney on January 1, 2007, for a term of five years. According
       to the complaint, during the daylight hours of September 24,
       2010, Plaintiff Christine Rafalko, a business invitee to Bitty Bill’s,
       slipped and fell in the gravel parking lot as she was walking
       away from her vehicle and suffered injuries to the right side of
       her body. There were no witnesses to the incident. On July 26,
       2012, Mrs. Rafalko and her husband filed a two count Complaint
       against Mr. Sweeney, individually, and as owner of Bitty Bills,
       and against Mr. and Mrs. Hunisch, alleging Negligence and Loss
       of Consortium.

Trial Court Opinion, 3/24/15, at 1.

       Rafalko filed a motion for summary judgment on August 26, 2014,

arguing that the undisputed facts in the record established negligence per

se.   In support of this argument, Rafalko cited the report of their safety

expert, Kenneth T. Vail.         This report alleged two violations of applicable

zoning regulations from the Code of the Borough of Moosic. Specifically, the

report stated that both the slope1 and the surface material2 used for the

parking lot violated local Code requirements.

       On November 7, 2014, Appellees filed a cross motion for summary

judgment arguing that no prima facie case of negligence existed in the case

because Rafalko could not describe the specific defect that caused her to fall.
____________________________________________


1
  According to Vail’s report, the Code requires that parking lots not exceed
5% grade; Vail reported “approximately 15% sloped grade” in the parking
lot at issue. Rafalko’s Motion for Summary Judgment, at 5.
2
  According to Vail’s report, the developer was required to pave the parking
lot rather than use gravel. Rafalko’s Motion for Summary Judgment, at 7.



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Sweeney’s Motion for Summary Judgment, at 4.           Additionally, Appellees

argued that “gravel cannot be said to be a defect in the premises as a gravel

surface is open and obvious to any persons who walk upon it.” Id. at 9.

      On March 24, 2015, the trial court denied Rafalko’s motion and

granted Appellees’ cross-motion for summary judgment.         According to the

trial court, “[t]here is no evidence in this case that there was a defective

condition existing upon the premises at the time of Mrs. Rafalko’s fall, or

even if such a condition existed, that Defendant Sweeney [had] actual or

constructive notice of it.” Trial Court Opinion, 3/24/15, at 7. The court did

not recognize a defective condition because “[t]he fact that it was an uneven

gravel surface upon which [Rafalko] was walking was an open and obvious

condition of the parking lot.”   Id.   Additionally, the trial court determined

that: 1) Rafalko was not entitled to summary judgment on a theory of

negligence per se; and 2) the Hunisch defendants were landlords out of

possession at the time of Rafalko’s alleged injury and “had no knowledge of

any alleged defect that may or may not have caused [Rafalko’s] fall,” id. at

6, and were thus entitled to summary judgment in their favor.”

      This timely appeal followed, in which Rafalko raises the following

issues for our review:

      1. Whether there is sufficient evidence of record to support the
         conclusion that the Appellees were negligent.

      2. Whether the evidence of record actually establishes
         negligence per se, insofar as there is uncontested evidence of
         record to establish that the Appellees breached several duties


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         owed to [Rafalko] as a business invitee on the Appellees’
         property.

Appellants’ Brief, at 5.

      On appeal from an order granting summary judgment:

      our scope of review is plenary, and our standard of review is the
      same as that applied by the trial court. Our Supreme Court has
      stated the applicable standard of review as follows: [A]n
      appellate court may reverse the entry of a summary judgment
      only where it finds that the lower court erred in concluding that
      the matter presented no genuine issue as to any material fact
      and that it is clear that the moving party was entitled to a
      judgment as a matter of law. In making this assessment, 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. As our
      inquiry involves solely questions of law, our review is de novo.

      Thus, our 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. If there is evidence that would allow
      a fact-finder to render a verdict in favor of the non-moving
      party, then summary judgment should be denied.

Mull v. Ickes, 994 A.2d 1137, 1139-40 (Pa. Super. 2010) (citing Jones v.

Levin, 940 A.2d 451, 453-54 (Pa. Super. 2007)).

       “[I]n a negligence case, a plaintiff must demonstrate the following

elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant

breached that duty; (3) a causal relationship between the breach and the

resulting injury suffered by the plaintiff; and (4) actual loss suffered by the

plaintiff.” Ramalingam v. Keller Williams Realty Group, Inc., 121 A.3d

1034, 1042 (Pa. Super. 2015) (citation omitted).        “The duty owed to a

business invitee is the highest duty owed to any entrant upon land.        The


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landowner is under an affirmative duty to protect a business visitor not only

against known dangers but also against those which might be discovered

with reasonable care.”    Reinoso v. Heritage Warminster SPE LLC, 108

A.3d 80, 85 (Pa. Super. 2015) (quoting Campisi v. Acme Markets, Inc.,

915 A.2d 117, 119 (Pa. Super. 2006)). Specifically, the duty of a possessor

of land to protect invitees from harm is expressed in § 343A of the

Restatement (Second) of Torts as follows:

      § 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.

      (2) In determining whether the possessor should anticipate harm
      from a known or obvious danger, the fact that the invitee is
      entitled to make use of public land, or of the facilities of a public
      utility, is a factor of importance indicating that the harm should
      be anticipated.

Restatement (Second) of Torts § 343A.

      In support of her allegations, Rafalko points to the expert report of risk

management consultant Kenneth T. Vail. See Rafalko’s Motion for Summary

Judgment, Exhibit B. Therein, Vail opines:

      Mrs. Rafalko fell due to a combination of an unpaved, loose-
      gravel walkway surface, of improper aggregate size and type,
      placed on an improperly prepared approximately 15% sloped
      grade, un-compacted/insufficiently stabilized, which created a
      localized pedestrian hazard which caused her to slip as the
      surface gave way during normal pedestrian ambulation.

Id. at 8.


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      Despite this report, the trial court determined that there existed no

evidence of a defective condition or that Appellees had actual or constructive

notice thereof.    Furthermore, the court found that the “uneven gravel

surface upon which [Rafalko] was walking was an open and obvious

condition of the parking lot” and that Rafalko “is unable to point to any

specific physical defect in the parking lot that caused her to fall.” Trial Court

Opinion, 2/23/15, at 7. These statements, arguably contradictory, appear to

mischaracterize the nature of the defect alleged by Rafalko.

      Viewed in a light most favorable to Rafalko, this evidence would enable

a reasonable jury to conclude that Appellees had actual or constructive

knowledge of a foreseeable risk of harm to business invitees walking in the

parking lot, and the trial court should not have decided the issue as a matter

of law. See Mull, 994 A.2d at 1139-40.

      Next, we address Rafalko’s argument that she is entitled to summary

judgment on a theory of negligence per se. We agree with the trial court in

finding that:

      [v]iolation of a statute, although negligence per se, does not
      constitute a ground for imposing liability unless it can be shown
      to be [a] substantial factor in causing the injury. Whether a
      party’s conduct has been a substantial factor in causing the
      injury is ordinarily a question of fact for the jury, and may be
      removed from the jury’s consideration only where it is so clear
      that reasonable minds cannot differ on the issue.

Trial Court Opinion, 2/23/15, at 4 (citing Gravlin v. Fredavid Builders &

Developers, 677 A.2d 1235, 1238-39 (Pa. Super. 1996)).            Here, Rafalko

alleges that both the slope and surface material used in the subject parking

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lot violated applicable zoning ordinances. Whether these alleged violations

constituted a substantial factor in causing Rafalko’s injury remains a

question of fact for the jury, and thus summary judgment was properly

denied on the issue of negligence per se. Gravlin, supra (citing Vernon v.

Stash, 532 A.2d 441, 446 (Pa. Super. 1987)).

       Finally, we address the grant of summary judgment to the Hunischs

based on the finding that they were landlords out of possession at the time

of Rafalko’s alleged injury.3 “As a general rule, a landlord out of possession

is not liable for injuries incurred by third parties on the leased premises

because       the     landlord       has         no     duty     to        such    persons.”

Jones v. Levin, 940 A.2d 451, 454 (Pa. Super. 2007). However, there are

a   number      of   exceptions     to     the    general      rule   of    non-liability   of

a landlord out of possession, one of which is particularly relevant in the

instant case: the public use exception.               “Under this exception, a landlord

out-of-possession may be liable if he or she has leased the premises for a

purpose involving admission of the public and has failed to inspect for or




____________________________________________


3
   For the sake of completeness, we acknowledge Appellees’ contention that
Rafalko has waived any argument regarding the “out of possession landlord”
finding of the trial court. Appellees’ Brief at 20. However, viewed in the
light most favorable to Rafalko, the notice issue raised would apply globally
to all named Defendants, including the Hunischs.




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J-A31024-15



repair dangerous conditions prior to transferring possession of the property.”

Id. at 456; see also Restatement (Second) of Torts § 359.4

        Here, the trial court acknowledged a lease of the subject property “for

a term of five years to operate an ice cream business.” Trial Court Opinion,

2/23/15, at 5. An ice cream business necessarily involves admission of the

public, thus implicating the public use exception. A question of fact remains

as to whether the Hunischs had notice “that the gravel parking area created

a hazardous walking surface for all pedestrians.”      Appellants’ Brief, at 16.

This question of fact is best left to a jury and the trial court inappropriately

decided the issue as a matter of law. Mull, 994 A.2d at 1139-40.

____________________________________________


4
    § 359 Land Leased for Purpose Involving Admission of Public

        A lessor who leases land for a purpose which involves the
        admission of the public is subject to liability for physical harm
        caused to persons who enter the land for that purpose by a
        condition of the land existing when the lessee takes possession,
        if the lessor

           (a) knows or by the exercise of reasonable care could
           discover that the condition involves an unreasonable risk
           of harm to such persons, and

           (b) has reason to expect that the lessee will admit them
           before the land is put in safe condition for their reception,
           and

           (c) fails to exercise reasonable care to discover or to
           remedy the condition, or otherwise to protect such persons
           against it.

Restatement (Second) of Torts § 359.




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     Based on the foregoing, we conclude the trial court abused its

discretion when it granted Appellees’ motion for summary judgment.

Accordingly, we reverse and remand for further proceedings consistent with

this memorandum.

     Order reversed. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2016




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