J-S63013-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DONNA BUCCIALIA                                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

KARDANGO, INC., LUIS C. GONZALEZ,
M.D., AND PARKWAY MEDICAL OFFICE

                                                  No. 1824 WDA 2016


            Appeal from the Order Entered November 14, 2016
             In the Court of Common Pleas of McKean County
                   Civil Division at No(s): 122 CD 2014


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 17, 2017

     Donna Buccialia appeals from the November 14, 2016 order granting

summary judgment in favor of Appellees, Kardango, Inc., Luis C. Gonzalez,

M.D., and Parkway Medical Office, and dismissing the action. We affirm.

     On February 21, 2014, Appellant instituted this lawsuit against

Kardango, Inc., Luis C. Gonzalez, M.D., Bradford Family Medicine, Inc., and

Parkway Medical Office. She sought to recover damages for injuries that she

sustained on February 26, 2012. In the complaint, Appellant alleged that,

on the day in question, she slipped, fell, and injured herself on an

accumulation of ice and snow in the parking lot of 181 Interstate Parkway,

Bradford, Pennsylvania (the “real estate”).   Appellees were the owners or

possessors of the real estate in question, and purportedly were negligent in
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permitting the snow and ice to accumulate on that property.         Bradford

Family Medicine, Inc. was granted summary judgment after it established

that in 2005, it moved to a new location in Bradford, and had no relationship

to the real estate after that time.

      On September 22, 2016, Appellees filed a motion for summary

judgment, indicating the following. The accident in question occurred on a

Sunday, when the business establishment located on the real estate was

closed.   At her August 10, 2016 deposition, Appellant conceded that she

never obtained permission to use the parking lot, and that, before she

started to walk on the parking lot on February 26, 2012, she saw that the

parking lot had approximately two inches of ice and snow on it. Motion for

Summary Judgment, 9/22/16, at Exhibit A, page 18. Appellant specifically

articulated that, when she was looking ahead at the parking lot and before

she started to walk on it, she saw both the snow and the ice. Id.

      In their motion for summary judgment, Appellees averred that, in light

of this admission, Appellant proceeded in the face of the known risk that

caused her to fall, and that they did not owe her a duty of care. On October

28, 2016, Appellees’ motion for summary judgment was granted and the

complaint against Appellees was dismissed.     Appellant filed a motion for

reconsideration, the motion was denied, and Appellant filed this timely

appeal on November 28, 2016. She raises one issue for our consideration:




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      1. Whether the lower court erred and/or abused its discretion
         when      it   granted     summary  judgment     to    the
         Defendants/Appellees and usurped the role of the jury to
         resolve genuine issues of material fact pertaining to Ms.
         Buccialia status on the property.

Appellant’s brief at

      Appellant claims that the trial court improperly granted summary

judgment based on its conclusion that she was a trespasser. Her position on

appeal is that there is a genuine issue of material fact as to whether she was

a trespasser or a licensee when she slipped and fell on the real estate. She

notes that her deposition established that she traversed the parking lot

regularly, both when the medical office was open and closed.          Appellant

contends that Appellees gave her implicit permission to enter the parking

lot, rendering her potential status as that of licensee and creating a duty on

the part of Appellees in connection with the condition of their property.

      Appellant fails to recognize that whether she was a trespasser or a

licensee is immaterial to her right to recover. Assuming, arguendo, that she

had permission to walk on the parking lot and her status was that of

licensee, Appellees still did not owe her a duty of care. Our analysis follows.

      This Court may overturn an order granting summary judgment if the

appealing party establishes that the court either committed an error of law

or abused its discretion. Finder v. Crawford, 2017 PA Super 210, 2017 WL

28740492017 (filed July 6, 2017) (citation omitted).




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           In evaluating the trial court's decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 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. Where the nonmoving
      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 nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

Id. (citation omitted).

      It is settled law that the “duty of a possessor of land toward a third

party entering the land depends upon whether the entrant is a trespasser,

licensee, or invitee.” Stapas v. Giant Eagle, Inc., 153 A.3d 353, 365

(Pa.Super. 2016) (citation omitted).    In this appeal, Appellant claims that

the trial court found that she was a trespasser, but there was sufficient

evidence to create the inference that she was a licensee. She relies upon

her pattern of using the parking lot and the lack of “no trespassing” signs in

that area. A trespasser is defined as a “person who enters or remains upon

land in the possession of another without a privilege to do so created by the

possessor's consent or otherwise.”     Restatement (Second) of Torts § 329.

A “licensee is a person who is privileged to enter or remain on land only by

virtue of the possessor's consent.”    Restatement (Second) of Torts § 330.

Appellant herein maintains that, due to the existence of a genuine issue of

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material fact as to whether she has implicit consent to use the parking lot,

summary judgment was improperly granted.

     We will assume, for purposes of this appeal, that Appellant’s status as

of February 26, 2012 was that of licensee when she traversed the parking lot

in question.   The flaw in Appellant’s position is that, even if she was a

licensee, Appellees cannot be found liable for her harm.

     A possessor of land is subject to liability to his licensees for
     physical harm caused to them by his failure to carry on his
     activities with reasonable care for their safety if, but only if,

           (a) he should expect that they will not discover or
           realize the danger, and

           (b) they do not know or have reason to know of the
           possessor's activities and of the risk involved.

Restatement (Second) of Torts § 341.

     In this case, Appellant conceded that the snow and ice was obvious.

Thus, Appellees would have no reason to expect that Appellant would not

have discovered and realized the dangers of walking on snow and ice in their

parking lot. Furthermore,

     A possessor of land is subject to liability for physical harm
     caused to licensees by a condition on the land if, but only if,

           (a) the possessor knows or has reason to know of the
           condition and should realize that it involves an
           unreasonable risk of harm to such licensees, and should
           expect that they will not discover or realize the danger,
           and




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             (b) he fails to exercise reasonable care to make the
             condition safe, or to warn the licensees of the condition
             and the risk involved, and

             (c) the licensees do not know or have reason to
             know of the condition and the risk involved.

Restatement (Second) of Torts § 342 (emphasis added).

      As we observed in Cresswell v. End, 831 A.2d 673 (Pa.Super. 2003),

the “conjunctive wording of section 342 indicates that a possessor of land is

subject to liability only if all three criteria are present.”   In this case,

Appellant claimed that she fell on ice, but she admitted that she had actual

knowledge of the condition of the land and the risk involved when she

entered the parking lot:

      Q. Actually I want you to describe when you say the lot was
      snow and icy –

      A. Uh-hum.

      Q. – were you able to see that before you walked onto the lot?

      A. Yes, because I’m looking ahead.

      Q. So you saw the snow and ice as you started walking?

      A. Yeah, I saw everything, yes. . . .

      Q. How much snow and ice?

      A. I don’t know. Maybe about two inches.

Motion for Summary Judgment, 9/22/16, at Exhibit A, page 18. Id. at 21

(Appellant stating that it was “icy and snowy” so she was “trying to be very

careful”).

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      Thus, Appellant conceded that she saw both the snow and ice and

decided to enter the parking lot and walk on the ice. Since Appellant knew

of the condition of the land and the risk of falling on ice, Appellees, as

possessors of land, did not owe her a duty of care. Our decision in Ott v.

Unclaimed Freight Co., 577 A.2d 894 (Pa.Super. 1990), is dispositive.

Therein, the plaintiff was aware of snow and ice in a parking lot and

proceeded to cross the ice, slipping and falling.    We concluded that the

possessor of land did not owe the plaintiff a duty since she voluntarily

proceeded in the face of a known risk by traversing the ice.      As the trial

court herein did not commit an error of law or abuse of discretion in granting

summary judgment to Appellees and dismissing this lawsuit, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2017




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