J-A09022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TRACY TRUAX                                      IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

TANYA P. ROULHAC, WILDWOOD 115,
INC. AND SILVIO VITIELLO

                            Appellees                No. 1797 EDA 2013


                 Appeal from the Order Entered June 11, 2013
                In the Court of Common Pleas of Monroe County
                     Civil Division at No(s): 9958 Civil 2010


BEFORE: BOWES, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                         FILED SEPTEMBER 24, 2014

       Tracy Truax appeals from the order entered June 11, 2013, in the

Court of Common Pleas of Monroe County, granting summary judgment in

favor of defendants, Wildwood 115, Inc. (Wildwood), and Silvio Vitiello

(Vitiello).1   Truax argues the trial court erred: (1) in determining that

Wildwood and Vitiello had, as a matter of law, taken reasonable precautions



property, and (2) in determining Wildwood and Vitiello did not owe a duty to

take reasonable measures to protect patrons from the foreseeable risk of a

____________________________________________


1
  Roulhac has not been located or served for purposes of this lawsuit.
Although the resolution of these motions for summary judgment terminated
the cases against Wildwood and Vitiello only, the trial court certified the
order as final, as, for all practical purposes, it terminated the entire matter.
J-A09022-14




vehicle jumping the curb. After a thorough review of the submissions by the

parties, relevant law, and the certified record, we affirm.



matter.

       At all times material hereto, Defendant Silvio Vitiello was the
       sole owner of a parcel of commercial real estate located off
       Route 115 in Effort, Pennsylvania. Defendant Wildwood 115,
       Inc. was a tenant leasing space from Defendant Vitiello within


       agreement, it enjoyed nonexclusive use in common of the
       parking lot of the premises.

       On March 4, 2009, at approximately 10:38 p.m., [Truax] and

       Defendant     Tanya     Roulhac     was   operating   her   van   in   an

       [Truax] was walking south along the sidewalk in front of Madd


       parking stop and entered the sidewalk, colliding with [Truax]
       with such force that her body was flung into the wall of the
       building. [Truax] lost consciousness, was airlifted to Lehigh
       Valley Hospital, and suffered serious leg injuries. Defendant
       Roulhac fled the scene of the accident and was later arrested.

       The sidewalk on the premises was level with the parking lot and
       was separated by horizontal concrete parking stops. [Truax]
       alleges that these parking stops were inadequate and created a
       dangerous condition on the premises.           She argues that
       Defendants[2] were negligent for failing to remedy this dangerous
       condition, namely by failing to install vertical bollards, curbs,
____________________________________________


2
 Defendants here means the property and business owners, not the driver,
Roulhac.



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J-A09022-14




       rails or other safety devices. Defendants, conversely, allege that
       they satisfied their duty to [Truax] by complying with all
       applicable building codes and zoning ordinances and that it
       would be unreasonable and overly burdensome for a jury to
       overrule experts in determining what kind of safety devices are
       necessary. Further, Defendants argue that the events that led
                                                    extraordinary that it
       would be oppressive to require Defendants to take steps to
       prevent such an occurrence. While Defendants filed separate
       Motions for Summary Judgment, the issues raised in both

       thereof are nearly identical and will, thus, be addressed
       together.

Trial Court Opinion, 10/03/2012, at 3-4 (citations to record omitted).

       We further note that Truax has agreed that the wheel stops 3 at issue

were five inches high.      See                  .


       judgment requires us to determine whether the trial court
       abused its discretion or committed an error of law[,] and our
                                   Petrina v. Allied Glove Corp., 46
       A.3d 795, 797-
       view the record in the light most favorable to the nonmoving
       party, and all doubts as to the existence of a genuine issue of

       Barnes v. Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing
       Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 736 (Pa. Super.
       2009)
       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
                                 Id. The rule governing summary
       judgment has been codified at Pennsylvania Rule of Civil
       Procedure 1035.2, which states as follows.

____________________________________________


3
  Throughout the certified record, these are referred to as either parking
stops or wheel stops. We will refer to them as wheel stops.



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J-A09022-14




        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 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 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.

     Pa.R.C.P. 1035.2.

                     -moving party bears the burden of proof on an
     issue, he may not merely rely on his pleadings or answers in
     order to survive. Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214,
     1223 (Pa. Super. 2012) (citations omitted), appeal denied, 65
     A.3d 412 (Pa. 2013).                           -moving party to
     adduce sufficient evidence on an issue essential to his case and
     on which he bears the burden of proof establishes the

     Id.

     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.

     Id. citing Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa.
     Super. 2011), quoting Jones v. Levin, 940 A.2d 451, 452-454
     (Pa. Super. 2007) (internal citations omitted).

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J-A09022-14




Cadena v. Latch, 78 A.3d 636, 638-39 (Pa. Super. 2013).

      In this matter, the non-moving party, Truax, bore the burden of

proving her allegations of negligence against Vitiello and Wildwood.

      Our Supreme Court has set forth the elements of a cause of
      action based upon a negligence theory in Pennsylvania as
      follows:

         (1) a duty or obligation recognized by the law requiring the
         defendant to conform to a certain standard of conduct for
         the protection of others against unreasonable risks;

         (2) defendant's    failure   to   conform   to   the    standard
         required;

         (3) a causal connection between the conduct and the
         resulting injury;

         (4) actual loss or damage resulting to the plaintiff.

                                               , 59 A.3d 621, 638 (Pa. Super.

2012) (citation omitted). Therefore, if Truax has failed to meet any of the

four requirements to sustain an action based upon negligence, the case must

fail as a matter of law.

      Finally, we note,

      A possessor of land is not an insurer of his business invitees, and
      plaintiff's evidence must establish some degree of negligence on
      defendant's part in order to recover. Sloss v. Greenberger,
      396 Pa. 353, 152 A.2d 910 (1959); Miller v. Hickey, 368 Pa.
      317, 81 A.2d 910 (1951). Furthermore, a jury cannot be
      permitted to return a verdict based on speculation and not

      have said many times that the jury may not be permitted to
      reach its verdict merely on the basis of speculation or
      conjecture, but that there must be evidence upon which logically

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J-A09022-14




                                    Smith v. Bell Telephone Co.,
        397 Pa. 134, 138, 153 A.2d 477, 479 (1959). Circumstantial

        necessary, under Pennsylvania law, that every fact or
        cir                                          Id. at 138, 153
        A.2d at 480, however, the mere happening of an accident is no
        evidence of negligence and does not raise a presumption of
        negligence. Amon v. Shemaka, 419 Pa. 314, 214 A.2d 238
        (1965).

Winkler v. Seven Springs Farm, Inc., 359 A.2d 440, 442 (Pa. Super.

1976).

        There is no dispute that Truax was a business invitee of Madd



protect her from the foreseeable harm caused by a third party.      Vitiello and

Wildwood have argued they met all appropriate local requirements and their

use of five-inch high wheel stops was sufficient to protect pedestrians under

known circumstances.4

and/or Wildwood were required to provide a sidewalk with a five-inch curb

and bollards to protect such pedestrians walking on the sidewalk.          She

attempted to demonstrate the insufficiency of the wheel stops by presenting
                                                 5
                                                     of TEC, Inc.

____________________________________________


4
   Neither Vitiello nor Wildwood has provided copies of the relevant local
codes or regulations in the certified record. Neither have they provided
citations to those codes or regulations.
5
    Professional Engineer.




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J-A09022-14




medical negligence, the report must relate the standard of care, how the



to the harm complained of. See Rohrer v. Pope, 918 A.2d 122, 125 (Pa.

Super. 2007 (expert report must describe standard of care; establishing

duty, breach of duty and causation).       If the expert fails to provide the

required information, then the report is insufficient as a matter of law. Id.

See also Welsh v. Bulger, 698 A.2d 581, 587-88 (Pa. 1996) (dissenting

opinion by Castille, J.) (citing Mitzelfelt v. Karim, 584 A.2d 888 (Pa.

1990); Menarde v. Philadelphia Transportation Co., 103 A.2d 681 (Pa.

1954)).

      Here, the expert report must describe the relevant engineering

standards for the design and construction of a parking lot.       It must then

show how

and how that deviation led to the automobile accident at issue.        It is the

deviation from the appropriate standards that leads to a finding of

negligence. The opinions regarding those elements must be made within a

reasonable degree of certainty. See generally Rauch v. Mike-Mayer, 783

A.2d 815, 826 (Pa. Super. 2001). We note that it is those required elements




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J-A09022-14




determination of negligence. Without these required elements, a jury would

be left to speculation, guesswork and conjecture.

       Here, accepting everything the expert opined as true, the report still

fails to relate the appropriate engineering standards for the design of a



cannot show a deviation from those standards nor demonstrate negligence.6



wheel stops were insufficient to stop vehicles such as SUVs or vans, which

have higher ground clearance. He also opined that there should have been a

four to six inch high curb to prevent vehicles from driving onto the sidewalk.




       TEC reviewed the Bardakjy parking layout[7] which is confirmed
       by the photographs taken after the accident. The parking lot is
       graded flush to the sidewalk. Standard practice is to have the
       sidewalk raised above the grade of the lot by 4 to 6 inches.
       Wheel stops are in place at the spaces facing the building,
       however, these stops are meant only to reinforce the definition
       of the end of the parking space. It is evident from damage to

       stop at this location was not effective in reinforcing the definition
____________________________________________


6
                              resses other issues, such as ingress to the
parking lot, lighting, and the encroachment of the bar onto the sidewalk.
However, as will be discussed, there is no indication of record that any of
these issues played any part of the accident. Therefore, these issues are
irrelevant to our analysis.
7
  Bardakjy was apparently the person or entity that produced the ground
plans for this property.



                                           -8-
J-A09022-14




       of that space. These wheel stops are only effective for low-
       speed parking maneuvers and are not effective in stopping
       vehicles accelerating or traveling at speeds that are inconsistent
       with a parking maneuver. This is particularly true if the vehicle
       has a high vertical clearance and larger wheel diameters such as
       a van or a sport utility vehicle. The lack of a vertical curb at the
       sidewalk made hopping the wheel stop and direct access to the
       sidewalk easier to accomplish by the Roulhac vehicle.

Expert Report, 8/30/2012, at 3.
                                                             8
                                                                 is to prove a four

to six inch curb for a sidewalk, he does not provide the source of this




curb meets standard practice but a five inch wheel stop is insufficient. The

report provided no explanation of how a lower curb height would meet

engineering standards while a higher wheel stop would not.

       Further, the report makes no mention of any standards regarding

wheel stops. Therefore, the report cannot show that the wheel stops were

improperly located or were of insufficient height.       The report notes that

larger wheeled vehicles with higher ground clearance, such as vans or SUVs,

makes hopping the wheel stop easier. However, the report does not indicate

the ground clearance of or the size of tires associated with the Chrysler
____________________________________________


8
  Technically, standard practice need not equate to relevant engineering
standards. Standard practice simply relates how most people put in a
sidewalk. Standard practice does not mean that other approaches are
inherently unsound or are below the standards of engineering.



                                           -9-
J-A09022-14




Caravan driven by Roulhac.             Having provided no evidence of ground

clearance or tire size, a jury would be required to guess at the relevance of

this information.



when the accident occurred.           Therefore, any commentary regarding the

efficiency of wheel stops and accelerating or speeding vehicles is irrelevant.

       The report also states that the wheel stops did not prevent the bump

out from being struck by vehicles. However, the accident at issue here did

not occur at the bump out.          Therefore, any failure to meet the applicable

standards at the bump out are not relevant to this accident.

       The report also addresses the use of bollards:9

       Bollards have been installed to protect private property on the
       site. A well head located on the southeastern corner of the
       property is shown as protected by four (4) painted, concrete
       post bollards. There is also evidence in the photo that two
       bollards have been removed.

Id. at 6.

       The report provided no engineering standards for the use of bollards.

As noted previously, without a description of the appropriate standards,

there can be no showing of a deviation from those standards.          Truax was

required to show either that the use of bollards was the engineering
____________________________________________


9
  A bollard is a post, often made of concrete or metal used as a barrier
between people and/or property and cars.



                                          - 10 -
J-A09022-14




standard or that the use of wheel stops alone failed to meet the applicable

engineering standards.        This paragraph does not address either of those

possibilities.

      Finally, the report concludes, in relevant part:

      If this site was brought up to standards to correct the site
      deficiencies:

                                           ...

      2. Sidewalks would be continuous and separated from the
      parking field with vertical curb at sidewalk of at least 5 inches
      and bollards would have been installed to protect pedestrians in
      the same way that they have been installed on site to protect
      property[.]

Id. at 8.

      The conclusion opines that certain actions must be taken for the

pa

report demonstrated that no standards were ever set forth.                 The report

never provided any indication of the engineering standards for appropriate

use of wheel stops or where wheel stops were inappropriate.                The report

never provided any indication of the engineering standards for the use of




engineering      standards,    or   any    identified   standards,   and    therefore

represented a breach of the duty of care to Truax. As a matter of law, the




                                          - 11 -
J-A09022-14




     Because Truax has provided no legal precedent requiring the use of



negligence on the part of either Wildwood or Vitiello for using wheel stops,

the grant of summary judgment was appropriate.

     Order affirmed.

     Judge Jenkins joins the memorandum.

     Judge Bowes files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2014




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