J-S06004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LALLY SPADY                                       IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

ACME MARKETS AND FHG COMPANIES,
LLC, D/B/A ABOUT TIME SNOW
REMOVAL AND DEMASI LANDSCAPING

                            Appellees                 No. 1900 EDA 2016


                   Appeal from the Order Entered June 9, 2016
              In the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 141001354


BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                         FILED OCTOBER 10, 2017

        Lally Spady appeals from the June 9, 2016 order entered in the

Philadelphia County Court of Common Pleas granting the motion for

summary judgment filed by Acme Markets (“Acme”), FHG Companies, LLC

D/B/A About Time Snow Removal (“FHG”), and DeMasi Landscaping

(“DeMasi”) (collectively, “Appellees”). We affirm.

        On February 18, 2014, Spady slipped and fell on a mound of snow in

the parking lot of an Acme supermarket in Philadelphia, resulting in injuries.

The mound was located at the end of a row of parked cars.           Aside from



____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S06004-17



mounds of snow at the end of each row of parked cars, all parking spaces

and travel lanes in the lot were clear of snow and ice.

      On March 12, 2015, Spady filed an amended complaint against Acme

and FHG, alleging that their negligence caused his injuries. On July 30,

2015, FHG filed a joinder complaint against Demasi.       On May 2, 2016,

Appellees filed a motion for summary judgment, arguing that:      (1) Spady

was barred from recovery under the “choice of ways” doctrine; (2) Appellees

had no duty to take precautions or warn of snow in the parking lot; and (3)

Spady was barred from recovery due to his assumption of the risk by

proceeding over the snow mound. Thereafter, on June 1, 2016, Spady filed

a response to Appellees’ motion. On June 9, 2016, the trial court granted the

motion and entered summary judgment in Appellees’ favor. Spady filed a

timely notice of appeal.

      Spady raises the following issue on appeal:

         Whether the trial court abused its discretion and otherwise
         committed an error of law when it improperly granted
         [Appellees’] Motion for Summary Judgment when a
         genuine issue of material fact exists as to [Spady]’s
         contributory negligence and [Appellees] owed a duty to
         Plaintiff to remove the dangerous condition or to warn him
         of the danger of the same?

Spady’s Br. at 6 (trial court answer omitted).

      Our scope and standard of review when reviewing a grant of summary

judgment are well-settled:

            Our scope of review is plenary, and our standard of
         review is the same as that applied by the trial court. Our

                                     -2-
J-S06004-17


        Supreme Court has stated the applicable standard of
        review as follows: An appellate court may reverse the
        entry of a summary judgment only where it finds that the
        lower court erred in concluding that the matter presented
        no genuine issue as to any material fact and that it is clear
        that the moving party was entitled to a judgment as a
        matter of law. In making this assessment, 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.
        As our inquiry involves solely questions of law, our review
        is de novo.

           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.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa.Super.)

(quoting Mull v. Ickes, 994 A.2d 1137, 1139–40 (Pa.Super. 2010))

(alterations omitted), app. denied, 117 A.3d 298 (Pa. 2015).

     The elements of a negligence action are well-settled: a plaintiff must

establish “a duty or obligation recognized by law; breach of that duty by the

defendant; causal connection between the defendant’s breach of that duty

and the resulting injury; and actual loss or damage suffered by the

complainant.”   Reilly v. Tiergarten Inc., 633 A.2d 208, 210 (Pa.Super.

1993). “The 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.” Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983).



                                    -3-
J-S06004-17


      As a customer of the supermarket, Spady is properly classified as a

business invitee.       This Court has previously discussed the meaning of

“invitee” as follows:

                (1) An invitee is either a public invitee or a
               business visitor.

               (2) A public invitee is a person who is invited
               to enter or remain on land as a member of the
               public for a purpose for which the land is held
               open to the public.

               (3) A business visitor is a person who is invited
               to enter or remain on land for a purpose
               directly or indirectly connected with business
               dealings with the possessor of land.

                                      ...

         The duty of care owed to a business invitee (or business
         visitor) is the highest duty owed to any entrant upon land.
         The landowner must protect an invitee not only against
         known dangers, but also against those which might be
         discovered with reasonable care. Our case law sets forth
         the duty that a possessor of land owes to business invitees
         as follows:

               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.




                                      -4-
J-S06004-17


Gutteridge v. A.P. Green Servs., Inc., 804 A.2d 643, 655-56 (Pa.Super.

2002) (quotations and citations omitted).

       Further:

               Under the doctrine of assumption of the risk, a
           defendant is relieved of its duty[1] to protect a plaintiff
           where the plaintiff has voluntarily and deliberately
           proceeded to face a known and obvious risk and therefore
           is considered to have assumed liability for his own injuries.
           . . . [T]he determination that the plaintiff has assumed the
           risk of his injuries such that recovery is prevented should
           occur only where it is beyond question that the plaintiff
           voluntarily and knowingly proceeded in the face of an
           obvious and dangerous condition.

Barrett v. Fredavid Builders, Inc., 685 A.2d 129, 130-31 (Pa.Super.

1996).     The assumption of the risk doctrine has two elements: “The risk

must be perceived, and the risk must be faced voluntarily.”         Id. at 131.


____________________________________________


       1We analyze Spady’s assumption of the risk in conjunction with
Appellees’ duty because

           [o]ur [S]upreme [C]ourt appears to have concluded that in
           a negligence action, the question whether a litigant has
           assumed the risk is a question of law as part of the court’s
           duty analysis, and not a matter for jury determination. . . .
           [A]ssumption of risk is no longer an affirmative defense in
           most cases; rather, it is incorporated into an analysis of
           whether the defendant owes a duty to the plaintiff. . . .
           [T]he trial court is obligated to review the factual scenario
           and determine whether [u]nder those facts, . . . the
           defendant, as a matter of law, owed the plaintiff no duty of
           care.

Staub v. Toy Factory, Inc., 749 A.2d 522, 526 (Pa.Super. 2000) (internal
citations and quotations omitted).




                                           -5-
J-S06004-17


Thus, “[b]efore . . . assumption of the risk will be applied to prevent

recovery, the evidence must establish conclusively that the plaintiff was

subjectively aware of the risk.” Id. In Barrett, we discussed two Supreme

Court cases involving the assumption of the risk. In Carrender,

           an invitee parked on the landowner’s parking lot on a
           sheet of ice even though the rest of the parking lot had
           been cleared of snow and ice.          The invitee wore a
           prosthesis, became aware of the ice before exiting her car,
           and also was aware that maneuvering on ice was
           especially difficult for her. She slipped and fell on the ice
           when re-entering her car and instituted the action against
           the landowner.

469 A.2d at 131.         In Howell v. Clyde, 620 A.2d 1107 (Pa. 1993), “a

licensee of the landowner was socializing with the landowner and asked to

ignite a homemade fireworks cannon.              He injured himself in the process.”

Id. In Barrett, we stated that

           the risks at issue [in        Carrender and Howell] were
           dangerous, known, and        obvious. Ice always is slippery,
           and a person walking         on ice always runs the risk of
           slipping and falling.        The plaintiff in Carrender[2]
____________________________________________


       2 In Carrender, our Supreme Court explained assumption of the risk
as follows:

           When an invitee enters business premises, discovers
           dangerous conditions which are both obvious and
           avoidable, and nevertheless proceeds voluntarily to
           encounter them, the doctrine of assumption of risk
           operates merely as a counterpart to the possessor’s lack of
           duty to protect the invitee from those risks. By voluntarily
           proceeding to encounter a known or obvious danger, the
           invitee is deemed to have agreed to accept the risk and to
           undertake to look out for himself. It is precisely because
(Footnote Continued Next Page)


                                           -6-
J-S06004-17


          admittedly saw the ice prior to stepping on it. Similarly,
          fireworks always explode, and a person always encounters
          a risk of injury from that explosion when he uses
          fireworks. Thus, the plaintiff in Howell knew the risk.

              Furthermore, the plaintiffs in those cases proceeded to
          face the risks voluntarily. The plaintiff in Carrender could
          have parked in a non-icy area since the rest of the parking
          lot was free of ice. The plaintiff in Howell did not have to
          engage in the recreational activity of firing the cannon.

Id.

      Here, the trial court stated that:

             In his deposition, [Spady] was asked why he did not
          take the shortest, most direct and snow-free route to the
          store after he got out of the car but instead took a longer
          route toward a mound of snow in the next row of parked
          cars. Plaintiff explained that, in hindsight, he walked
          toward the handicapped parking sign in the next row of
          parked cars because he figured that “if anything is going to
          be clear, it's going to be that part.” [Spady’s Dep.] at 44.
          Plaintiff admitted that he did not really know what he was
          thinking that day or why he chose the longer, snow
          covered route rather than the shortest, most direct, snow
          free route to the store: “I don't know. I had tunnel vision.
          I just got out and kept straight and walked. That’s the
          only thing I can tell you.”         Id. at 47.3      Plaintiff

(Footnote Continued) _______________________

          the invitee assumes the risk of injury from obvious and
          avoidable dangers that the possessor owes the invitee no
          duty to take measures to alleviate those dangers. Thus, to
          say that the invitee assumed the risk of injury from a
          known and avoidable danger is simply another way of
          expressing the lack of any duty on the part of the
          possessor to protect the invitee against such dangers.

Carrender, 469 A.2d at 125.

      3We note that elsewhere in its opinion, the trial court cites to page 44
of Spady’s deposition transcript for this quote. See Opinion at 9.




                                          -7-
J-S06004-17


           acknowledged that the parking lot was clear of snow and
           ice other than a mound of snow at the end of each row of
           parked cars. Id.

Opinion, 9/9/16, at 2-3.4

       Pursuant to the above evidence, we agree with the trial court’s

conclusion that Appellees did not owe Spady a duty of care. The mound of

snow was an obvious and avoidable risk, as snow and ice is always slippery

and a person walking over snow and ice always risks slipping and falling.

Additionally, Spady chose to face the risk voluntarily. Since the rest of the

parking lot was clear of snow and ice, Spady could have taken a more direct

route to the supermarket that did not take him over the snow mound, but he

chose not to do so.       Accordingly, because Appellees did not owe Spady a

duty of care, there is no genuine issue of material fact and Appellees are

entitled to judgment as a matter of law. Thus, the trial court properly

granted summary judgment in Appellees’ favor.

       Order affirmed.




____________________________________________


       The transcript of Spady’s deposition was not included in the certified
       4

record. However, because no party disputes the trial court’s characterization
of Spady’s deposition, we review the trial court’s order based on its version
of Spady’s deposition testimony.




                                           -8-
J-S06004-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017




                          -9-
