J-S47040-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ADRIENE HITCHNER                                     IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                             Appellant

                      v.

ELEANORE BARTELL

                             Appellee                     No. 38 MDA 2016


                Appeal from the Order Entered December 15, 2015
                In the Court of Common Pleas of Schuylkill County
                         Civil Division at No(s): S -52 -2014


BEFORE:     SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                            FILED OCTOBER 24, 2016

       Adriene Hitchner appeals from the order of the Court of Common Pleas

of Schuylkill County, granting            Eleanore Bartell's motion for summary

judgment and dismissing Hitchner's complaint with prejudice. Upon careful
review, we reverse and remand for further proceedings.

       Hitchner was    a   nurse employed by Lori's Angels home health care

services.   In the course of her employment, Hitchner regularly provided

home health care services to Bartell and her mother, who lived together at

333 Nichols Street in Pottsville.          On May 11, 2013,   after she had been

working for Bartell for over two months, Hitchner fell down the front steps of

the house as she was leaving to pick up breakfast for Bartell. Although the

steps were moist from earlier rain and mist, Hitchner claims that she did not

slip   due to    moisture.      Rather,    Hitchner claims that the steps were
J-S47040-16



"dilapidated   and   of an uneven height, depth, and         width creating      an

extremely dangerous condition[.]" Complaint, 4/14/14, at       ¶ 7.

      On April 14, 2014, Hitchner filed a     complaint against Bartell, alleging

negligence in connection with the maintenance of the steps.               After the

pleadings were closed, Bartell filed   a   motion for summary judgment, which

the trial court granted by order dated December 15, 2015. Hitchner filed          a

timely notice of appeal on January 7, 2016, followed by          a    court -ordered

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Hitchner raises the following issues for our review:

      1.   Whether the trial court erred as a matter of law by granting
      [Bartell's] [m]otion for [s]ummary [j]udgment based upon the
      finding that the record contains insufficient evidence of facts as
      to causation essential to [Hitchner's] cause of action in
      negligence?
      2.  Whether the trial court erred as a matter of law by granting
      [Bartell's] [m]otion for [s]ummary [j]udgment and barring
      [Hitchner's] negligence claim based upon a condition complained
      of being open and notorious despite the fact that [Hitchner], an
      employee, had to encounter the risk in order to perform her job?
Brief of Appellant, at 5.

      We begin by noting our scope and standard or review of the grant of

summary judgment:

      Our review of the trial court's grant of summary judgment is
      plenary. Summary judgment is proper where the pleadings,
      depositions, answers to interrogatories, admissions and
      affidavits and other materials show there is no genuine issue of
      material fact and the moving party is entitled to judgment as a
      matter of law. We must view the record in the light most
      favorable to the opposing party and resolve all doubts as to the
      existence of a genuine issue of material fact in favor of the
      nonmoving party. We will reverse the trial court's grant of

                                       -2-
J-S47040-16


        summary judgment only upon an abuse of discretion or error of
        law.

Cresswell v. End, 831 A.2d 673, 675        (Pa. Super. 2003) (citation omitted).

        Hitchner first claims that the trial court erred by granting summary

judgment based upon its finding that the record contains insufficient
evidence as to causation.          The trial    court concluded that Hitchner's

deposition testimony did not establish that the dilapidated condition of the

steps caused her to fall because:          (1) she stated merely that she had

"slipped" on the concrete, and (2) she could not identify the step upon which

her fall occurred.      Hitchner asserts that the trial court inappropriately

disregarded the affidavit she submitted in her response to Bartell's summary

judgment motion     in which she   "clarified" her deposition testimony by stating
that she "slipped on the first /second concrete step (depending on how          a   step

is   defined or whether it qualifies as    a   step) which crumbled or otherwise

gave way under my foot."         Plaintiff's Affidavit, 11/2/15 at     ¶ 3.   Hitchner

argues that she produced ample evidence, in the form of deposition

testimony, photographs of the accident site and her affidavit to establish

"the extremely poor condition of the steps, and how such           a   condition may

have led to [her]    fall[.]" Brief of Appellant, at   14.   Upon review, we agree

that the trial court erred     in its   determination regarding causation, even

though it properly disregarded Hitchner's affidavit.

        Generally, to state a cause of action for negligence, a plaintiff
        must allege facts which establish the breach of a legally
        recognized duty or obligation of the defendant that is causally
        connected to actual damages suffered by the plaintiff. Bi/t-Rite
        Contractors, Inc. v. The Architectural Studio, [] 866 A.2d
                                         -3-
J-S47040-16


      270, 280 ([Pa.] 2005). The plaintiff proves the duty and breach
      elements by showing that the defendant's act or omission fell
      below the standard of care and, therefore, increased the risk of
      harm to the plaintiff. Thierfelder v. Wolfert, 52 A.3d 1251,
      1264 (Pa. 2012). Once the plaintiff has carried this burden, s/he
      must further demonstrate the causal connection between the
      breach of a duty of care and the harm alleged: that the
      increased risk was a substantial factor in bringing about the
      resultant harm.
Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 596 (Pa. 2012).
      "Although it   is   clear that   a   jury       is   not permitted to reach   a   verdict

based upon guess or speculation, it is equally clear that                 a   jury may draw
inferences from all of the evidence presented."                 First v. Zem Zem Temple,
686 A.2d 18, 21 (Pa. Super. 1996), citing Cade v. McDanel, 679 A.2d 1266

(Pa. Super. 1996).

      It    not necessary, under Pennsylvania law, that every fact or
           is
      circumstance point unerringly to liability; it is enough that there
      be sufficient facts for the jury to say reasonably that the
      preponderance favors liability.      The facts are for the jury in
                                             .    .   .


      any case whether based upon direct or circumstantial evidence
      where a reasonable conclusion can be arrived at which would
      place liability on the defendant. It is the duty of [the] plaintiffs
      to produce substantial evidence which, if believed, warrants the
      verdict they seek. The right of a litigant to have the jury pass
      upon the facts is not to be that a reasonable man might properly
      find either way. A substantial part of the right to trial by jury is
      taken away when judges withdraw close cases from the jury.
      Therefore, when a party who has the burden of proof relies upon
      circumstantial evidence and inferences reasonably deductible
      therefrom, such evidence, in order to prevail, must be adequate
      to establish the conclusion sought and must so preponderate in
      favor of that conclusion as to outweigh in the mind of the fact -
      finder any other evidence and reasonable inferences therefrom
      which are inconsistent therewith.
Id. (citations omitted).


                                            -4
J-S47040-16



       In First, the plaintiff was attending             a       wedding reception, where she

fell while dancing on    a   temporary dance floor supplied and installed by the

defendants.      In her deposition, the plaintiff testified that she fell because

"the heel of her shoe slipped on the dance floor's wooden surface, and that

she observed that the dance floor had        a       section which was lighter in color

than the other areas of the floor."       Id. at                 20.    Additional testimony also

established that portions of the floor were discolored, slippery, and raised,

but that plaintiff's fall occurred three to four feet away from those areas.

Defendants moved for summary judgment on the basis that, due to her

location when she fell, the slippery or raised areas of the floor could not

have caused plaintiff's fall. The trial court agreed, finding that plaintiff could

not identify the reason she fell or that the identified hazards on the floor

caused her to fall.

       On appeal, this Court reversed, finding                   that the plaintiff had produced
sufficient circumstantial evidence from which                     a    jury could reasonably infer
that   a   slippery or raised area of the floor caused her to fall.                    The Court

noted:

       "Negligence may be established by circumstantial evidence, and
       where a plaintiff describes the nature and location of a fall, it is
       for the jury to determine whether a defect which existed in the
       small area described was the cause of the injury, and [the
       question of whether] the defect was of sufficient consequence to
       charge defendants with negligence       is for the jury." Frazier
                                                 .   .       .


       v. City of Pittsburgh, [] 15 A.2d 499, 500 ([Pa. Super.] 1940)
       ...  [I]n avoiding summary judgment [plaintiff] "need not negate
       all other possible causes of an occurrence,         or prove with .   .   .


       mathematical certainty, to the exclusion of other possibilities,


                                        -5
J-S47040-16


      that an occurrence could only have been caused in one manner
      consistent with [the defendants'] liability." Agriss v. Roadway
      Express, Inc., [] 483 A.2d 456, 466 ([Pa. Super.] 1984)
      (citations omitted).
Id. (emphasis   added in   First).
      Similarly, here, we conclude that, even without considering Hitchner's

affidavit,' there was sufficient evidence           in   the record from which   a   jury could
reasonably have inferred that the dilapidated condition of the steps caused

Hitchner to fall and injure herself.                In her deposition testimony, Bartell

admitted that the concrete steps were "worn," "uneven," "broken," and

"messed up." Bartell Deposition, 4/20/15, at 24, 25, 33. Based on this, and

viewing the evidence in the light most favorable to Hitchner as the non-

moving party, Cresswell, supra,            a   jury could have reasonably inferred that
the damaged condition of the steps caused Hitchner to slip and fall as she




' This Court  has repeatedly declined to find an abuse of discretion where a
trial court discounts affidavits in which an opposing party contradicts prior
deposition testimony in an effort to overcome summary judgment. See
Stephens v. Paris Cleaners, Inc., 885 A.2d 59 (Pa. Super. 2005) (no
abuse of discretion in grant of summary judgment where trial court
disregarded affidavit that contradicted earlier deposition testimony);
Gruenwald   v. Advanced Computer Applications, Inc., 730 A.2d 1004
(Pa. Super. 1999) (trial court may disregard affidavit sworn in response to
summary judgment motion when it directly contradicts fact and court
therefore finds it not wholly credible); Lucera v. Johns -Manville Corp.,
512 A.2d 661 (Pa. Super. 1986) (no abuse of discretion by trial court in
disregarding affidavit where affidavit was not "wholly credible "); Taylor v.
Tukanowicz, 435 A.2d 181 (Pa. Super. 1981) ( "Entry of summary
judgment is proper where       .  the evidence relied upon by the plaintiff is
                                   .   .


inherently incredible. "). Accordingly, the court was within its discretion to
disregard Hitchner's inconsistent affidavit.


                                               -6
J-S47040-16



descended.    Accordingly, the trial court erred in concluding that there was

insufficient evidence of causation to overcome summary judgment.

      Hitchner also challenges the trial court's determination that her claim

was barred because the condition of the steps was open and obvious and, as

such, Bartell did not owe    a   duty to Hitchner.   Hitchner argues that her

employment required that she use the steps and that there was no

alternative route by which she could enter Bartell's home. Hitchner asserts

that Bartell should have anticipated the harm that befell her and, thus, may

be held liable despite the open and obvious condition. We agree.2

      Pursuant to the Restatement (Second) of Torts    §   343A,

      [a] possessor of land is not liable to his invitees for physical
      harm caused to them by any activity or condition on the land
      whose danger is known or obvious to them, unless the possessor
      should anticipate the harm despite such knowledge or
      obviousness.
Restatement (Second) of Torts    §   343A(1).

      Comment f to section 343A provides as follows:


2  We note that the trial court did not engage in any meaningful analysis of
this issue, limiting its discussion to this conclusory statement near the end of
its opinion:

      Secondly, Defendant asserts and we agree that even if Plaintiff
      could describe precisely what caused the fall, the condition of the
      steps was open and obvious and familiar to her. As such,
      Defendant did not owe a duty to Plaintiff under these
      circumstances.
Trial Court Opinion, 12/15/15, at 8.



                                       -7
J-S47040-16


        There are, however, cases in which the possessor of land can
        and should anticipate that the dangerous condition will cause
        physical harm to the invitee notwithstanding its known or
        obvious danger. In such cases the possessor is not relieved of
        the duty of reasonable care which he owes to the invitee for his
        protection. This duty may require him to warn the invitee, or to
        take other reasonable steps to protect him, against the known or
        obvious condition or activity, if the possessor has reason to
        expect that the invitee will nevertheless suffer physical harm.
            ...
             Such reason may       ...
                                    arise where the possessor has reason
        to expect that the invitee will proceed to encounter the known or
        obvious danger because to a reasonable man in his position the
        advantages of doing so would outweigh the apparent risk.
Restatement (Second) of Torts         §   343A, comment f.

            Here, Hitchner's employment required her to access Bartell's home to

perform her duties as      a   home care nurse. The steps were the only means to

access the residence.          Bartell's deposition testimony demonstrates that she

was aware of the dilapidated state of the steps; accordingly, she should

have anticipated that the dangerous condition they created would cause

physical harm to Hitchner.            Moreover, because the steps were the sole

means of accessing Bartell's home,3 Bartell should have expected that

Hitchner would have no choice but to make use of them, despite the known

and obvious danger, because to            a   reasonable person in Hitchner's position,

i.e.,   a    nurse whose job required her to care for Bartell in her home, the



3  Bartell testified at her deposition that Hitchner could have used the
neighbor's steps to access her porch. However, by her own admission,
doing so would have required Hitchner to climb over a banister when she
reached the top of the steps. Bartell Deposition, 4/20/15, at 32. Moreover,
Hitchner testified that Bartell never told her she could use the neighbor's
steps. Hitchner Deposition, 4/13/15, at 19.


                                              -8
J-S47040-16



advantages of using the steps would outweigh the apparent risk.       See id.

Accordingly, under section 343A of the Restatement, Bartell may be held

liable to Hitchner despite the open and obvious condition of the steps.

      Order vacated; case remanded for further proceedings in accordance

with the dictates of this memorandum. Jurisdiction relinquished.



Judgment Entered.




J:seph    Seletyn,
         D.
Prothonotary


Date: 10/24/2016




                                     -9
