                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 15-2300
                                      _____________

                                 ROBERT L. KING, JR.;
                                 DORIS REGINA KING,
                                              Appellants

                                             v.

            ROCKTENN CP, LLC, As Corporate Successor to, Smurfit Stone
                           Container Corporation
                             _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 2-13-cv-06663)
                       District Judge: Honorable Robert F. Kelly
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    March 1, 2016

              Before: AMBRO, JORDAN, and SCIRICA, Circuit Judges.

                                  (Filed: March 4, 2016)
                                    _______________

                                        OPINION
                                     _______________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Robert King, Jr. (“King”) appeals an order of the United States District Court for

the Eastern District of Pennsylvania granting summary judgment for defendant Rocktenn,

CP LLC (“Rocktenn”). We will affirm.

I.     Background1

       In the early morning of January 28, 2011, King slipped and fell while working at

9820 Blue Grass Road in Philadelphia, Pennsylvania (the “premises”), a truck yard

owned by Rocktenn. At that time, King was working for Lily Transportation as a “yard

jockey,” responsible for hooking trailers to tractors, and unhooking them, and moving

them in and out of loading docks. Throughout his tenure at Lily Transportation, King

worked exclusively at the premises. At all relevant times, he was there as a business

invitee.

       Shortly before the accident, on January 26, 2011, a foot of snow fell in

Philadelphia. On the afternoon of January 27, King began his shift and was scheduled to

work overnight until 6:00 a.m. on the 28th. Upon arriving, he inspected the yard and

found it had been plowed but that there was still some snow and ice, including between

some of the trailers. King did not, however, see any of it around the area between trailers

five and six. He concluded that the premises were “safe enough for [him] to do [his]

       1
        Because this case was resolved on summary judgment, we view the facts in the
light most favorable to King, the non-moving party. Howley v. Mellon Fin. Corp., 625
F.3d 788, 792 (3d Cir. 2010).



                                             2
job.” (A129.) Sometime before 6:00 a.m., King was tasked with moving the trailer

positioned at door six of the loading dock, which required him to hook that trailer onto a

tractor. To do so, King had to pass between trailers five and six for the first time that

shift. As he passed, King had his hand on a “hold bar” for stability, but slipped and

landed on his backside. (A130-34.) In the course of his fall, he shifted all his weight

onto the arm he was using to grasp the “hold bar,” thus injuring his shoulder. (Id.) King

completed his shift, including some overtime, and then sought medical attention.

Although initially diagnosed as a sprain, King’s injury was ultimately determined to be

more serious, and he had surgery on his shoulder to correct it.

       In January 2012, King filed suit in the Court of Common Pleas of Philadelphia

County against Rocktenn and a number of other defendants alleging, inter alia,

negligence in permitting dangerous conditions to persist on the premises.2 He later

amended his complaint, naming only Rocktenn as a defendant but maintaining a similar

theory of liability. Rocktenn removed the case to federal court in November 2013.

Following discovery, Rocktenn moved for summary judgment, and the District Court

granted that motion.

       This timely appeal followed.




       2
        The complaint also included a loss of consortium claim by Mrs. King. That claim
was also present in the amended complaint and is at issue in this appeal.
                                              3
II.    Discussion3

       We exercise plenary review over a District Court’s grant of summary judgment.

Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015). “Our review is identical to the

review performed by the district court.” Id. “Summary judgment is proper if there is no

genuine issue of material fact and if, viewing the facts in the light most favorable to the

non-moving party, the moving party is entitled to judgment as a matter of law.”

Smathers v. Multi-Tool, Inc./Multi-Plastics, Inc. Employee Health & Welfare Plan, 298

F.3d 191, 194 (3d Cir. 2002).

       As our jurisdiction in this case is based on diversity of citizenship, our review

applies the substantive law of the Commonwealth of Pennsylvania. Sheridan v. NGK

Metals Corp., 609 F.3d 239, 253 (3d Cir. 2010) In Pennsylvania, according to the case of

Carrender v. Fitterer, “[t]he standard of care a possessor of land owes to one who enters

upon the land depends upon whether the person entering is a trespassor, licensee, or

invitee.” 469 A.2d 120, 123 (Pa. 1983). It is undisputed that King was a business invitee

at the time of the incident. “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.” Atkins v. Urban

       3
       The District Court had jurisdiction in this matter under 28 U.S.C. § 1332(a)(1).
We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                               4
Redevelopment Auth. of Pittsburgh, 414 A.2d 100, 103-04 (Pa. 1980) (quoting

Restatement (Second) of Torts § 343 (1965)).

       Against the backdrop of this liability, however, is the rule that “‘[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 … .’” Carrender, 469

A.2d at 123 (quoting Restatement (Second) of Torts § 343 (1965)). This test is

disjunctive. “For a danger to be ‘known,’ it must ‘not only be known to exist, but ... also

be recognized that it is dangerous and the probability and gravity of the threatened harm

must be appreciated.’” Id. at 124. “A danger is deemed to be ‘obvious’ when ‘both the

condition and the risk are apparent to and would be recognized by a reasonable man, in

the position of the visitor, exercising normal perception, intelligence, and judgment.’” Id.

at 123; see also Atkins, 414 A.2d at 104 (“[T]he law of Pennsylvania does not impose

liability if it is reasonable for the possessor to believe that the dangerous condition would

be obvious to and discovered by his invitee.”).

       Here, King seizes on the District Court’s reliance on Carrender to draw what he

avers is a critical distinction – that the plaintiff in that case, unlike King himself, had

actual knowledge of the icy conditions at the specific location where she fell. Because

King did not have knowledge of ice in the exact location where he fell, he argues that he

could not have assumed the risk of a fall and injury. That position, however, ignores both

the Pennsylvania Supreme Court’s jurisprudence regarding what constitutes “knowledge”

and the disjunctive nature of the “known or obvious” test.



                                               5
       In Atkins v. Urban Redevelopment Authority of Pittsburgh, a plaintiff, while

inspecting a house slated for demolition, fell down a set of stairs due to a missing second

stair. 414 A.2d at 102. He testified at trial that he did not know the second stair was

missing, yet the Pennsylvania Supreme Court found no duty on the part of the property

owner, and thus no liability. Id. at 354. It reasoned that, because the inspectors knew the

house was slated to be demolished, it was reasonable for the property owner to rely on

the inspectors entering the property “to take care in performing required services” and “to

discover hazards and to take steps to protect themselves.” Id. at 353-54.

       King’s situation is analogous. Having awareness of the general danger – that there

was ice and snow throughout the yard, and between some of the trailers specifically – the

property owner could reasonably rely on King and the other yard jockeys to act carefully,

discover hazards, and take the appropriate steps to protect themselves from the danger

inherent in those the conditions. Indeed, King testified that it was part of his

responsibility to inspect the yard at the beginning of his shift, and that a procedure was in

place whereby he could report ice or other unsafe conditions he discovered and have

them rectified. King made no such requests. He said that “it looked like a regular, safe

day to do [his] job.”4 (A130.)

       In addition to his knowledge of the conditions that day, King testified that he had

worked on the premises following snow storms in the past and confirmed that “on most

occasions [in the area] between the trailers there would still be snow and ice.” (A151.)


       4
        If that was his perception, it is remarkable, because a foot of snow is not on the
ground on a regular day in Philadelphia.
                                              6
In fact, King proffered as evidence a video, taken on the premises a few days following

the incident, which clearly shows patches of ice and snow remained between the trailers.

He confirmed that the conditions in the video were consistent with those the day of the

incident.

       The Pennsylvania Supreme Court made clear in Atkins that highly specific

knowledge of the danger faced is not necessary to a finding that a plaintiff has assumed

the risk associated with certain working conditions. Nothing in that case suggested that

the plaintiff had specific knowledge that the second stair was missing (and therefore

dangerous), or even knowledge that dilapidated stairs were a particular risk on the

property. Here, King had equal if not greater knowledge regarding the specific risk he

faced, as shown by his testimony that he was aware of the presence of ice and snow on

the premises, including between the trailers. In light of Atkins, that is sufficient to

constitute a “known” danger under Pennsylvania law, and it is of no consequence that

King did not know there was a patch of ice in the specific location where he slipped.

       Even if King’s knowledge of the conditions were not sufficiently specific to make

the risk “known,” the record shows that it was certainly “obvious.” King’s testimony

confirmed that “on most occasions” following snow storms, “between the trailers there

would still be snow and ice,” (A151) and that “anybody working [on the day of the

incident] should have known there was snow and ice between those trailers,” (A 147).

That testimony, corroborated by his supervisor, and his coworker, leaves no real doubt

that “the condition and the risk [were] apparent to and would be recognized by a

reasonable man … exercising normal perception, intelligence, and judgment.”

                                              7
Carrender, 469 A.2d at 124 (internal quotation marks omitted). Faced with such

conditions, and the inherent danger of slipping presented by snow and ice, no reasonable

man could have failed to recognize the risk presented. The risk of a fall was obvious, and

King assumed that risk.

       The District Court was thus correct in determining that reasonable minds could not

differ in concluding that the danger presented by the snow and ice between trailers was

“known or obvious,” and the Court properly granted Rocktenn’s motion for summary

judgment.5

III.   Conclusion

       For the forgoing reasons, we will affirm.




       5
         Because Doris King’s loss of consortium claim is predicated on the negligence
claim, its dismissal was also proper. See Craig v. Franklin Mills Assoc., L.P., 555
F.Supp2d 547, 555 (E.D.Pa. 2008) aff’d sub nom., 350 Fed. Appx. 714 (3d Cir. 2009) (“If
the underlying negligence claim brought by the claimant’s spouse is dismissed … the loss
of consortium claim must also be dismissed.”).
                                            8
