J-S41044-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MALTA LOPEZ,                           :       IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                Appellant              :
                                       :
         v.                            :
                                       :
ALBRIGHT COLLEGE,                      :
                                       :
                Appellee               :         No. 528 MDA 2019

              Appeal from the Order Entered February 22, 2019
               in the Court of Common Pleas of Berks County
                       Civil Division at No(s): 17-19359

BEFORE: LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED OCTOBER 04, 2019

     Malta Lopez appeals from the judgment entered on February 22, 2019,

which granted summary judgment in favor of Albright College (Albright) in

this slip and fall case. After review, we reverse the order granting summary

judgment.

     We glean the following relevant factual and procedural history from

the record. A major snow storm, calling for up to three feet of snow, was

predicted to begin during the overnight hours of March 13-14, 2017, in

Reading, Berks County, Pennsylvania, where the parties are located. Light

snow started about 9:00 p.m. on March 13, 2017, with accumulation starting

around 11:30 p.m. that night. Overnight it changed to heavy snowfall such

that areas where snow had been removed became re-covered with snow

within the hour. Around 9:00 a.m. on March 14, 2017, the snow changed to


* Retired Senior Judge appointed to the Superior Court.
J-S41044-19

freezing rain and sleet, and then changed back to snow around noon on that

day, making for icy conditions.

      Between March 13 and March 14, 2017, the total snowfall was

between 16 and 18 inches, which compacted down to 12 to 14 inches due to

rain, sleet, and freezing rain.   On March 13, 2017, Albright preemptively

decided to close the following day, March 14, 2017, due to inclement

weather. Albright operated on a two-hour delay on March 15, 2017.

      According to Lopez, she fell at about 7:45 p.m. on March 15, 2017, on

the sidewalk of 13th Street near Albright’s athletic center. On October 31,

2017, Lopez filed a civil complaint against Albright, complaining her fall was

due to Albright’s negligence.      After the pleadings closed, the parties

conducted discovery, which included the depositions of Lopez, Steve Yascoe,

a public safety officer and shuttle driver for Albright, and Rick O’Leary,

Albright’s Grounds Manager.

      Lopez testified during her deposition that her daughter had a work

shift at the local supermarket from 4:00 to 8:00 p.m. on March 15, 2017,

and that Lopez always walked her daughter to and from work. Lopez stated

that she walked her daughter to work at about 3:45 p.m. that day, and then

returned home on foot, using the same route via the 13th Street sidewalk.

According to Lopez, when it was time to pick up her daughter from work,

Lopez walked the same route a third time, slipped and fell on the sidewalk at




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about 7:45 p.m., and injured her right arm. Just after Lopez fell, she walked

across 13th Street to where Yascoe was located and told him about her fall.

        Yascoe testified during his deposition that the weather on March 15,

2017, was snowy and icy. After Lopez told him she had fallen, he asked if

she needed medical attention, and Lopez declined.                 After receiving

permission     from   his   supervisor,    Yascoe   transported   Lopez   to   the

supermarket to pick up her daughter and then drove Lopez and her daughter

to Lopez’s house. Yascoe then returned to work and completed an incident

report that night.

        O’Leary testified during his deposition that Albright’s grounds crew

arrived to perform snow removal around 11:00 p.m. on March 13, 2017, and

worked straight through for roughly 24 hours.         Albright’s campus was not

fully cleared at this point, but was operational with areas of snow and ice on

macadam and walkways. The crew returned about 4:30 a.m. on March 15,

2017.    By the early morning hours of March 15, the main sidewalks and

thoroughfares on Albright’s campus were clear for foot travel.

        O’Leary further testified that 13th Street is a main thoroughfare that

was a high priority area to be cleared, and it received extra salt because it is

a public walkway. The sidewalk where Lopez fell was constantly plowed and

salted on March 14, 2017, and on March 15, 2017, that same area was

salted at least three times, in addition to being plowed.           To clear the

sidewalks, the grounds crew plowed and salted. The crew’s equipment had


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plow cutting blades which plowed the entire width of the sidewalk from edge

to edge.     As the snow was plowed, it was piled to the right or left of the

sidewalks.

      After discovery, Albright filed a motion for summary judgment on

November 7, 2018.         Based on the evidence adduced during discovery,

Albright contended that, pursuant to the hills and ridges doctrine,1 it was not




1 We have described the hills and ridges doctrine as “a long standing and
well entrenched legal principle that protects an owner or occupier of land
from liability for generally slippery conditions resulting from ice and snow
where the owner has not permitted the ice and snow to unreasonably
accumulate in ridges or elevations.” Collins v. Philadelphia Suburban
Dev. Corp., 179 A.3d 69, 72 (Pa. Super. 2018), quoting Biernacki v.
Presque Isle Condominiums Unit Owners Ass'n, Inc., 828 A.2d 1114,
1116 (Pa. Super. 2003). However,

      [t]he conceptual basis for the rule is not entirely clear. It
      appears to combine two separate principles: the notion that a
      possessor of land is ordinarily not liable for conditions that occur
      naturally, and the notion that liability for a dangerous condition
      not caused by the defendant himself should be imposed only
      where the danger existed for a sufficient period of time that
      failure to eliminate it can be deeded unreasonable.

3 West’s Pa. Prac., Torts: Law and Advocacy § 5.14. The doctrine is not
without its critics. As Judge Olszewski opined in his concurring opinion in
Morin v. Traveler’s Rest Motel, Inc.,

      The [hills and ridges] doctrine was developed to protect
      municipalities from unreasonable exposure to liability for injuries
      caused by climactic conditions. In order to prevail under the
      doctrine, a plaintiff must show more than a landowner’s failure
      to exercise reasonable care. Plaintiff has the additional burden
      of demonstrating that ice and snow has been on the ground a
      sufficient length of time to accumulate as “hills and ridges.”

(Footnote Continued Next Page)

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liable for Lopez’s claim of negligence.                Albright’s Motion for Summary

Judgment, 11/7/2018, at ¶ 5.                 Lopez responded on November 14, 2018,

asserting that the hills and ridges doctrine was inapplicable because the

evidence established that the snow and ice upon which she fell “was not

purely the result of a natural accumulation” and had been “manipulated or

otherwise altered” by Albright. Lopez’s Response in Opposition to Albright’s

Motion for Summary Judgment, 11/14/2018, at ¶ 5.                 Following argument,

the trial court granted Albright’s motion for summary judgment pursuant to

the hills and ridges doctrine. Order, 2/22/2019, at 1; see also Trial Court

Opinion, 4/11/2019, at 3.




(Footnote Continued)   _______________________

      Because of the practical difficulty of maintaining vast areas of
      public land, it is sound policy to limit the liability of those
      responsible for the maintenance of such land. In contrast,
      private business owners do not encounter the same practical
      difficulty maintaining their land. Consequently, I see no reason
      to shield private business owners from liability where an injured
      business invitee proves a business owner’s failure to exercise
      reasonable care.      I agree with Justice Roberts’ concurring
      opinion in Wilson v. Howard Johnson Restaurant, [] 219
      A.2d 676 ([Pa.] 1966) disapproving of the application of the
      doctrine to a business invitee. Justice Roberts’ view did not
      carry the day, however, and the Wilson majority held that the
      hills and ridges doctrine applies to business invitees. Although I
      agree with [Morin] that the “hills and ridges” doctrine should not
      apply in this case, such change in the law must come from our
      Supreme Court.

704 A.2d 1085, 1089-1090 (Pa. Super. 1997).



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        This timely-filed appeal followed.2   On appeal, Lopez argues that the

trial court erred or abused its discretion in holding that the hills and ridges

doctrine precluded Lopez’s negligence claim. According to Lopez, there is a

genuine issue of material fact as to whether the condition was “an entirely

natural accumulation” and whether Lopez was exercising reasonable care

when she fell. Lopez’s Brief at 6.

        In reviewing an appeal from the trial court’s grant of a motion for

summary judgment, we are governed by the following.

               Our scope of review of summary judgment orders is
        plenary.   We apply the same standard as the trial court,
        reviewing all the evidence of record to determine whether there
        exists a genuine issue of material fact. 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. Only where there is no
        genuine issue as to any material fact and it is clear that the
        moving party is entitled to judgment as a matter of law will
        summary judgment be entered.

              Motions for summary judgment necessarily and directly
        implicate the plaintiffs’ proof of the elements of their cause of
        action. Summary judgment is proper 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. Thus a record that
        supports summary judgment will either (1) show the material
        facts are undisputed or (2) contain insufficient evidence of facts
        to make out a prima facie cause of action or defense and,
        therefore, there is no issue to be submitted to the jury. Upon
        appellate review we are not bound by the trial court’s
        conclusions of law, but may reach our own conclusions. The

2   Both Lopez and the trial court complied with Pa.R.A.P. 1925.

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      appellate Court may disturb the trial court’s order only upon an
      error of law or an abuse of discretion.

Collins, 179 A.3d at 73 (citation, brackets, and ellipses omitted).

      “For a party to prevail in a negligence action, a plaintiff must prove

that the defendant owed a duty of care to the plaintiff, that duty was

breached, the breach resulted in the plaintiff’s injury, and the plaintiff

suffered an actual loss or damages.”      Id. (citation and internal quotation

marks omitted).    With respect to the hills and ridges doctrine, we have

explained the following.

      The hills and ridges doctrine, “as defined and applied by the
      courts of Pennsylvania, is a refinement or clarification of the duty
      owed by a possessor of land and is applicable to a single type of
      dangerous condition, i.e., ice and snow.” Wentz v. Pennswood
      Apartments,[] 518 A.2d 314, 316 ([Pa. Super.] 1986). See
      Williams v. Shultz, [] 240 A.2d 812, 813-14 ([Pa.] 1968)
      (indicating that the doctrine of hills and ridges applies to
      preclude liability where “the accident occurred at a time when
      general slippery conditions prevailed in the community as a
      result of recent precipitation” (citations omitted)).

      In order to recover for a fall on an ice or snow covered surface, a
      plaintiff must show:

                  (1) that snow and ice had accumulated
                  on the sidewalk in ridges or elevations of
                  such     size  and    character     as  to
                  unreasonably     obstruct     travel   and
                  constitute a danger to pedestrians
                  travelling thereon; (2) that the property
                  owner had notice, either actual or
                  constructive, of the existence of such
                  condition; [and] (3) that it was the
                  dangerous accumulation of snow and ice
                  which caused the plaintiff to fall.



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           This Court has further opined that “the only duty
           upon the property owner or tenant is to act within a
           reasonable time after notice to remove [the snow
           and ice] when it is in a dangerous condition.”

     Biernacki, 828 A.2d at 1117 (quotations omitted).

Collins, 179 A.3d at 74.

     “The rationale for this doctrine has been explained as follows: ... to

require that one’s walks be always free of ice and snow would be to impose

an impossible burden in view of the climatic conditions in this hemisphere.”

Morin, 704 A.2d at 1087-88 (citation omitted).

     The hills and ridges doctrine, however, is not without limitations.

     [P]roof of hills and ridges is not required when the hazard is not
     the result of a general slippery condition prevailing in the
     community, but of a localized patch of ice. Tonik v. Apex
     Garages, Inc., [] 275 A.2d 296 ([Pa.] 1971); Williams v.
     Schultz, [] 240 A.2d 812 ([Pa.] 1968). Nor is proof of hills and
     ridges required when an icy condition is caused by the
     defendant’s neglect, as where a city maintains a defective
     hydrant, water pipe, drain, or spigot. Ward v. Pittsburgh, []
     44 A.2d 553 ([Pa.] 1945).

Harmotta v. Bender, 601 A.2d 837, 842 (Pa. Super. 1992), quoting

Bacsick v. Barnes, 341 A.2d 157, 160 (Pa. Super. 1975).

     Further, “the hills and ridges doctrine may be applied only in cases

where the snow and ice complained of are the result of an entirely natural

accumulation, following a recent snowfall. …[T]he protection afforded by the

doctrine is predicated on the assumption that these formations are natural

phenomena incidental to our climate[.]”     Harvey v. Rouse Chamberlin,



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Ltd., 901 A.2d 523, 526 (Pa. Super. 2006) (citations, internal quotation

marks, and alterations omitted).

      In the instant case, Lopez argues that the hills and ridges doctrine is

inapplicable for two reasons. First, Lopez argues that the trial court erred in

concluding that generally slippery conditions existed in the community,

because the storm had ended at the time of her fall. Lopez’s Brief at 11-12.

      A review of the record shows that generally slippery conditions existed

in the community at the time of Lopez’s fall.       Snow records prepared by

O’Leary at the time of the storm confirmed that on March 13-14, 2017, a

winter storm dumped 16 to 18 inches of snow in the area, and that a

mixture of snow, rain, sleet, and freezing rain made for generally icy

conditions.      N.T., 7/31/2018 (O’Leary Deposition), at Pl. Exh. 1.      The

average temperature was below freezing at 28 degrees Fahrenheit, and the

wet precipitation compacted the fallen snow several inches.      Id.   Albright

closed due to inclement weather the day before Lopez fell, and operated on

a two-hour delay the day of the incident.     Id.   Albright’s incident reports

show multiple reports of icy conditions throughout Albright’s campus were

reported on March 15 and 16, 2017. N.T., 7/31/2018 (Yascoe Deposition),

at Pl. Exh. 2.

      Lopez does not cite to any portion of the record to indicate that snow

and icy conditions were not generally prevalent in the community.        There




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was no evidence that Lopez fell on a specific, localized patch of ice, 3 nor is

there anything in the record to suggest that water from a hydrant, pipe,

drain, or spigot caused the slippery condition.        See Harmotta, supra.

Instead, the evidence of record indicates that snow and icy conditions were

prevalent in the area as a result of the recent storm. Accordingly, the trial

court correctly held there was no material issue of fact regarding this prong

of the hills and ridges doctrine.

      Lopez next argues that the hills and ridges doctrine is inapplicable

because the condition complained of was not the result of a natural

accumulation, but instead due to Albright’s plowing and salting.        Lopez’s

Brief at 11-17. Lopez contends that the pile of plowed snow melted before

the incident, and she theorizes that runoff from this snow pile then refroze

and caused the slippery condition on the sidewalk.         Id. at 16.    Lopez

characterizes O’Leary’s testimony as evidence to support her theory.       See

id. At his deposition, O’Leary testified as follows:

            Q.    Now, you understand the risk of what I’ll call melt
                  and refreeze?

            A.    Yes, I understand refreeze.

            Q.    Okay. And would you agree with me that there is a
                  greater chance that snow would melt and refreeze on
                  a sidewalk [if it] sort of sat directly next to the
                  sidewalk as opposed to just totally removed?

3 In fact, there is evidence to the contrary. Lopez testified that the slushy
puddle appearance spanned the entire length of the sidewalk.             N.T.,
7/31/2018 (Lopez Deposition), at 20.

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           A.    Say this again.

           Q.    Sure. So what we’ve established is we established
                 that essentially you guys are pushing the snow to
                 the side?

           A.    Uh-huh (yes.)

           Q.    You’re not taking it away?

           A.    Okay. I’m not removing snow, yes.

           Q.    Correct.

           A.    Yeah.

           Q.    You’re just sort of pushing it to the side of the
                 sidewalk. Now, if you had removed the snow, would
                 you agree with me that there’s, I guess, a smaller
                 likelihood of a refreeze situation?

           A.    A smaller likelihood.

           Q.    Okay. And would you agree with me that refreeze
                 can be dangerous to pedestrians?

           A.    Yes.

           Q.    It could be dangerous to pedestrians because they
                 could – they could trip and fall. Correct?

           A.    Yes.

N.T., 7/31/2018 (O’Leary Deposition), at 23-24.

     In this case, there is no dispute that a major snowstorm occurred,

which included rain, freezing rain, and sleet.    The parties likewise do not

dispute that Albright plowed and salted the sidewalk where Lopez slipped

and fell. However, Lopez has developed a factual issue as to whether the


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sidewalk’s condition was caused by an artificial condition, i.e., melting and

refreezing due to the plowing and salting, as Lopez contends, or by a natural

condition, i.e., melting and refreezing due to freezing rain and sleet from the

storm, as Albright contends.

      As in Harvey, the records maintained by Albright suggest that the

condition of the sidewalk could have been influenced by human intervention.

901 A.2d at 527. Given Albright’s interaction with the snow via plowing and

salting, it is possible that the sidewalk’s condition in this case may not have

been the result of an entirely natural accumulation. See id.; but see Beck

v. Holly Tree Homeowners Ass'n, 689 F.Supp.2d 756, 765 (E.D .Pa.

2010) (“[T]he melting and refreezing of snow and ice cover is a natural cycle

associated with temperature change.”), citing Casey v. Singer, 93 A.2d

470, 472 (Pa. 1953).

      Accordingly, we conclude that a genuine issue of material fact exists as

to whether the sidewalk’s condition was the result of an entirely natural

accumulation. Thus, we find that the trial court erred in affording Albright

protection from liability pursuant to the hills and ridges doctrine and

granting Albright’s motion for summary judgment.

      Order granting summary judgment reversed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/04/2019




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