J-A21009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GWENDOLYN BELLAMY,                              IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

WELLS FARGO AND WELLS FARGO
CORPORATION,

                         Appellees                   No. 2391 EDA 2015


                Appeal from the Order Entered July 27, 2015
            In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): July Term, 2013 No. 04117


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED NOVEMBER 15, 2016

      Appellant, Gwendolyn Bellamy, appeals from the trial court’s July 27,

2015 order granting Appellees’, Wells Fargo and Wells Fargo Corporation

(collectively referred herein as “Wells Fargo”), motion for summary

judgment. We affirm.

      The trial court set forth the facts and procedural history of this case as

follows:

             Appellant commenced this case on July 30, 2013, with the
      filing of a Complaint, raising one count of Negligence against
      Appellees, Well Fargo Corporation, and Imperial/Aramingo
      General Partners, LLC. The complaint averred that on August
      26, 2011, Appellant, who “ambulated with a walker,” attempted
      to manually open the door to exit the bank, and fell to the
      ground. Appellant averred that the lack of handicap doors was
      negligence causing her injuries.
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           On October 16, 2013, Defendant Imperial/Aramingo
     General Partners, LLC (“Imperial/Aramingo”) filed an Answer to
     the Complaint with New Matter and Crossclaim, denying
     Appellant’s averments and raising numerous affirmative
     defenses, as well as a counterclaim against Appellees Wells
     Fargo and Wells Fargo Corporation.

          That same day, Appellees Wells Fargo and Wells Fargo
     Corporation (“Appellee Wells Fargo”) filed an Answer to the
     Complaint with New Matter and Crossclaim, denying Appellant’s
     averments and raising numerous affirmative defenses, as well as
     a counterclaim against [Imperial/Aramingo].

          On October 21, 2013, Appellant filed Answers to Appellees’
     New Matters, denying them as conclusions of law to which no
     response was needed.

          On November 6, 2013, Appellee Wells Fargo filed a Reply
     to Imperial/Aramingo’s New Matter and Crossclaim.

           On November 7, 2013, Imperial/Aramingo filed a Reply to
     Appellee Wells Fargo’s Crossclaim.

           On January 20, 2015, following arbitration, a panel of
     Arbitrators found for all Appellees against Appellant.

          On February 5, 2015, Appellant appealed the Arbitration
     Award to this court.

          On May 4, 2015, discovery closed.

            On May 27, 2015, Imperial/Aramingo filed a Motion for
     Summary Judgment, averring that though it owns the retail
     “strip center” on which Wells Fargo Bank is located, it does not
     occupy or control any portion of the premises, but instead leases
     them to various commercial tenants, arguing that Appellant had
     not proven causation and proximate cause, and additionally, that
     it was indemnified as a landlord out of possession.

            On June 1, 2015, Appellee Wells Fargo filed a Motion for
     Summary Judgment, averring that video showed that Appellant
     backed into the exit door to open it, and fell when another
     customer entered the bank. Further, Appellee argued Appellant
     saw her podiatrist July 20, 2011 and sought no further treatment
     until September 23, 2011, a month after the incident. Appellee
     argued that Appellant had a non-displaced fracture of her small
     toe as of July 20, 2011, and that Appellant had not provided

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     credible expert testimony differentiating her pre-incident status
     from her post-incident presentation and that she could not prove
     she had sustained damages.           Appellee averred that at
     depositions, Appellant could not remember how she broke her
     toe in July, 2011. Further, Appellee argued Appellant had not
     shown that any Appellee was negligent. Appellee averred it had
     secured the expert opinion of a professional engineer who would
     testify that the manual doors in place at the subject premises on
     the date of the incident were in compliance with Philadelphia and
     International Building Codes.

           On June 26, 2015, Appellant filed an Answer in Opposition
     to Appellee Wells Fargo’s Motion for Summary Judgment. The
     Answer averred that Appellant had served Appellee with an
     expert medical report on June 26, 2015. Appellant argued that
     expert testimony was not necessary where the matter under
     investigation was so simple, and lack of skill or want of care so
     obvious, as to be within the range of ordinary experience and
     comprehension of even nonprofessional persons.

           On July 27, 2015, this court granted Imperial/Aramingo’s
     Motion for Summary Judgment and Appellee Wells Fargo’s
     Motion for Summary Judgment. Appellant did not file a Motion
     for Reconsideration of this Order.

           On July 28, 2015, Appellant filed a timely Notice of Appeal
     to the Superior Court of Pennsylvania with respect to the Order
     granting Summary Judgment in favor of Appellee Wells Fargo.
     Appellant did not appeal with respect to the Order granting
     Summary Judgment in favor of Imperial/Aramingo.

           On July 28, 2015, this Court issued its Order pursuant to
     Pa.R.A.P. 1925(b), directing Appellant to file her Concise
     Statement of Matters Complained of on Appeal within twenty-
     one (21) days.

           On July 31, 2015, Appellant filed her Concise Statement of
     Errors Complained of on Appeal….

Trial Court Opinion (TCO), 11/6/15, at 1-3.

     In her appeal, Appellant raises four issues for our review:

        1. Whether the trial court erred and/or abused its discretion
           when it granted [s]ummary [j]udgment to [Wells Fargo]
           when [Appellant] produced a medical expert report.

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J-A21009-16


         2. Whether the trial court erred and/or abused its discretion
            when it granted [s]ummary [j]udgment to [Wells Fargo]
            when a liability expert report is not required to provide
            evidence that [Wells Fargo] [was] negligent by failing to
            assist and accommodate a handicapped and physically-
            challenged person on its business premises in entering and
            exiting the premises.

         3. Whether the trial court erred and/or abused its discretion
            when it granted [s]ummary [j]udgment to [Wells Fargo]
            when there was evidence of record indicating that [Wells
            Fargo] was negligent in failing to assist and accommodate
            a handicapped and physically-challenged person on the
            premises in entering and exiting the premises which
            precluded summary judgment.

         4. Whether the trial court erred and/or abused its discretion
            when it granted [s]ummary judgment to [Wells Fargo] and
            usurped the role of the jury to resolve genuine issues of
            material fact regarding whether [Wells Fargo] met their
            duty to inspect for hazardous conditions and protect
            business patrons from said hazards.

Appellant’s Brief at 4. We address these issues out of order in the interest of

efficiency.

      Initially, we set forth our standard of review:
      [S]ummary judgment is appropriate only in those cases where
      the record clearly demonstrates that there is no genuine issue of
      material fact and that the moving party is entitled to judgment
      as a matter of law. When considering a motion for summary
      judgment, the trial court must take all facts of record and
      reasonable inferences therefrom in a light most favorable to the
      non-moving party. In so doing, the trial court must resolve all
      doubts as to the existence of a genuine issue of material fact
      against the moving party, and, thus, may only grant summary
      judgment where the right to such judgment is clear and free
      from all doubt.

Truax v. Roulhac, 126 A.3d 991, 996 (Pa. Super. 2015) (en banc) (internal

citations and quotations omitted). We additionally note:



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      [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. 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. at 997 (citation omitted).   “[F]ailure 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.” Id.

      We begin our review by considering Appellant’s claim that the trial

court erred and/or abused its discretion by granting summary judgment in

favor of Wells Fargo when there was evidence indicating that Wells Fargo

was negligent in failing to accommodate an individual with a disability in

entering and exiting the premises. See Appellant’s Brief at 4. In granting

Wells Fargo’s motion for summary judgment, the trial court determined,

inter alia, that “there is no legally recognized duty that Appellant has pointed

out that has been breached.”     TCO at 5.    However, Appellant argues that

Wells Fargo “had a duty to provide and/or implement reasonable safeguards

to accommodate customers with special needs.         At the very minimum, a

determination of whether … Wells Fargo had an affirmative duty to maintain

reasonable safeguards is a genuine issue of material fact.” Id. at 15.

      It is well-established that “[i]n order to hold a defendant liable for

negligence, the plaintiff must prove the following four elements: (1) a legally

recognized duty that the defendant conform to a standard of care; (2) the


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defendant breached that duty; (3) causation between the conduct and the

resulting injury; and (4) actual damage to the plaintiff.” Truax, 126 A.3d at

997 (citation omitted).   We have explained that “[w]hether a duty exists

under a particular set of facts is a question of law.”   Campisi v. Acme

Markets, Inc., 915 A.2d 117, 119 (Pa. Super. 2006) (citations omitted).

“The level of any duty owed to one present on another's land depends on

that person's status.” Truax, 126 A.3d at 997 (citation omitted). Pertinent

to the matter at hand, “[t]he duty owed to a business invitee is the highest

duty owed to any entrant upon land. The 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.”            Id.

(citations omitted). We apply the Restatement (Second) of Torts § 343 to

ascertain the scope of duty that property owners owe to business invitees.

Campisi, 915 A.2d at 119. Section 343 states:

     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 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.




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      Here, it is not disputed between the parties that Appellant was a

business invitee. See Appellant’s Brief at 13; Appellees’ Brief at 15. As a

business invitee, Appellant argues that Wells Fargo “had a duty to conduct

reasonable inspections of the property to discover dangerous conditions and

to provide such warning or safeguards as may be necessary for the business

invitee’s protection.”   Appellant’s Brief at 14 (citations omitted).   As such,

Appellant contends that “[h]ad [Wells Fargo] used reasonable care in paying

attention to their customers entering and exiting the Bank, they may have

discovered the dangers of not having handicap-friendly and/or [an]

automatic[]-door system.” Id. at 15 (emphasis omitted).

      Although we acknowledge the importance of ensuring accessibility for

individuals with mobility disabilities in places of public accommodation, we

cannot conclude that Wells Fargo was under a duty to protect Appellant from

the manual doors. In short, Appellant fails to proffer sufficient evidence to

satisfy the requirements of Section 343. First, Appellant asks this Court to

characterize the manually-operated doors as an unreasonably risky condition

pursuant to Section 343(a).       In making this argument, Appellant would

effectively require all businesses to have automatic doors. We concede that

automatic doors would likely be safer and easier for individuals with mobility

disabilities to navigate.    Nevertheless, it does not mean that having a

manually-operated door, without more (for example, issues related to the

width or weight of the door, or other obstructions), poses an unreasonable




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risk, or a hazard, to individuals.     In other words, Appellant does not

demonstrate that the manual door itself is a defective condition.

      Second, in contravention of Section 343(b), Appellant also does not

offer any evidence or authority that Wells Fargo expected, or should have

expected, that she would not discover or realize the danger of using the

manually-operated door, or would fail to protect herself against it.      See

Campisi, 915 A.2d at 120 (noting that, under the Restatement, “no liability

exists when the dangerous condition is known or obvious to the invitee

unless the proprietor should anticipate the harm despite such knowledge”).

On the other hand, Wells Fargo claims that Appellant had been visiting that

specific Wells Fargo facility at least once a month for nearly 7 years, which

Appellant does not dispute. Appellees’ Brief at 7. This evidence indicates

that the manual door was known and obvious to Appellant, and she had

used it for several years preceding the incident at issue.          Absent any

contrary evidence from Appellant, we cannot conclude that Section 343(b)

has been met.

      Finally, Appellant does not demonstrate how Wells Fargo failed to

exercise reasonable care under Section 343(c). We reiterate that Appellant

has not convinced us that the manual door, by itself, is a defective condition

in need of repair.   See Comment to Restatement (Second) of Torts § 343

(“An invitee is entitled to expect that the possessor will take reasonable care

to ascertain the actual condition of the premises and, having discovered it,

either to make it reasonably safe by repair or to give warning of the

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actual   condition   and the   risk involved therein.”)    (emphasis added).

Appellant asserts that the manually-operated door amounts to unreasonable

care.     Yet, as Wells Fargo argues, Appellant proffers no evidence of

standards, customs, or requirements in support of this proposition.        See

Appellees’ Brief at 19.    Instead, Appellant insists that it is a matter of

“common sense.”        Appellant’s Brief at 17.    Appellant claims that “in

negligence actions, expert testimony is not required where the matter under

investigation is so simple, and the lack of skill or … care is so obvious, as to

be within the range of ordinary experience and comprehension of even

nonprofessional persons.”      Id. at 16 (citing Ovitsky v. Capital City

Economic Development Corporation, 846 A.2d 124, 126 (Pa. Super.

2003)) (emphasis added in Appellant’s brief omitted). However, as stated

supra, the lack of care in having a manually-operated door is not obvious to

this Court. Thus, Section 343(c) has not been met.

        While we are sympathetic to Appellant, we must conclude that she has

not demonstrated that Wells Fargo had a legally recognizable duty to protect

her from manual doors. As the trial court pointed out, this matter sounds

more in enforcing or amending the requirements of the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., than in negligence. See




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TCO at 6.      Consequently, we affirm the trial court’s order granting Wells

Fargo’s motion for summary judgment.1

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




____________________________________________


1
  Because we have determined that Appellant did not establish that Wells
Fargo had a legally recognized duty to protect Appellant from the manually-
operated doors, we do not address the other issues raised in Appellant’s
brief.



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