Brown, A. v. Kinser B604, LLC ( 2016 )

J-S76032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANTOINETTE BROWN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KINSER B604, LLC
Appellee
v.
ALLEN VERNAL AND EDWANDA No. 1633 EDA 2016
SHEPHERD
Appellee
Appeal from the Order Entered April 27, 2016
In the Court of Common Pleas of Northampton County
Civil Division at No(s): No. CV-2014-9136
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 21, 2016
Appellant, Antoinette Brown (“Ms. Brown”), appeals from the April 27,
2016, order granting summary judgment in favor of Appellees Allen Vernal1
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
As the trial court noted, “Vernal Allen” has been misidentified in pleadings,
as well as the caption, as “Allen Vernal.” For the sake of consistency, we
shall refer to this Appellee as “Allen Vernal.”
J-S76032-16
and Edwanda Shepherd (“Mr. Vernal” and “Ms. Shepherd,” respectively).2
After a careful review, we affirm.
The relevant facts and procedural history are as follows: On
September 25, 2014, Ms. Brown filed a complaint sounding in negligence
against Kinser, the owner of a single family row home located at 604 Carlton
Street, in Bethlehem, PA. As the basis for her claims, Ms. Brown alleged
that, on February 17, 2014, she was at the property as an invitee for a
scheduled hair appointment and could access the salon only by climbing the
stairs leading from the sidewalk of the property to the front door of the
property. Ms. Brown alleged that at some time prior to her appointment
there had been precipitation in the form of snow, rain, or freezing rain;
however, the precipitation had stopped prior to her arrival at the property.
She averred there had been no snow or ice removal performed on the
property and, as a result thereof, the sidewalk leading to the property, as
well as the steps leading to the front door, were covered in snow and ice.
Ms. Brown indicated that she slipped and fell off the steps, thereby receiving
substantial injuries, including damage to her legs necessitating surgery and
____________________________________________
2
In its April 27, 2016, order, the trial court also granted summary judgment
in favor of Kinser B604, LLC (“Kinser”). However, in her notice of appeal,
Ms. Brown indicated she was appealing the the entry of summary judgment
in favor of Mr. Vernal and Ms. Shepherd only. Moreover, Ms. Brown has
developed no argument on appeal pertaining to Kinser. Consequently, we
affirm the entry of summary judgment in favor of Kinser on this basis.
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resulting in permanent disfigurement and loss of mobility. Accordingly, she
sought damages for her pain and suffering, as well as lost wages.
Kinser filed an answer with new matter, as well as a joinder complaint
to add as defendants Mr. Vernal and Ms. Shepherd, who were the tenants of
the property.3 Therein, Kinser presented claims of indemnification and/or
contribution, and additionally averred Mr. Vernal and Ms. Shepherd were
solely liable to Ms. Brown. Ms. Brown filed an answer to Kinser’s new
matter, and Mr. Vernal and Ms. Shepherd filed an answer to Kinser’s joinder
complaint.
On December 31, 2015, Ms. Brown filed a motion for partial summary
judgment and a supporting brief. Ms. Brown averred there had been a
blizzard for three days, which stopped on or before February 16, 2014, and
no snow or ice removal had been performed prior to her arrival at the
property on February 17, 2014. Accordingly, more than twenty-four hours
had elapsed since the end of the blizzard and the day Ms. Brown slipped and
fell. She indicated that, after having her hair done and upon leaving the
____________________________________________
3
With regard to the right to join additional defendants, Pa.R.C.P. 2252
provides:
[A]ny party may join as an additional defendant any person not a
party to the action who may be [] solely liable on the underlying
cause of action against the joining party, or. . .liable to or with the
joining party on any cause of action arising out of the transaction
or occurrence or series of transactions or occurrences upon which
the underlying cause of action against the joining party is based.
Pa.R.C.P. 2252.
-3-
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property, she slipped and fell as she attempted to descend the exterior
steps, which were covered with snow and ice. Ms. Brown noted that Kinser
owned the property, and Mr. Vernal had leased the property; however, the
lease expired on December 31, 2013. Ms. Brown indicated that, after 2012,
no agent of Kinser had removed ice or snow from the subject property.
In developing her motion, Ms. Brown relied upon Article 721.03 of the
City of Bethlehem’s ordinances4 and Restatement (Second) of Torts §§ 355-
362, governing the liability of lessors to persons who enter upon the land.
She reasoned that Kinser had responsibilities for snow and ice removal
under the former rendering it liable for her injuries as a landlord maintaining
control over a portion of the premises under the latter. She further reasoned
that, in the absence of a written lease between Kinser and the occupants of
the property apportioning responsibility for ice and snow removal, Kinser
was responsible for the same and liable to Ms. Brown. Ms. Brown’s Motion
for Partial Summary Judgment, filed 12/31/15.5
Furthermore, in developing her motion, Ms. Brown relied upon Section
107.7 of the International Property Maintenance Code, which was adopted
____________________________________________
4
Article 721.03 provides, in relevant part, that “[n]o person owning,
controlling or occupying any lot. . .shall allow or permit any. . . snow [or]
ice. . .to remain upon the pavements, sidewalks, footways or rights-of-way
in front of or adjoining such lot for a period longer than twenty-four hours
after the rain, snow, [or sleet].” Id. Exhibit D. Moreover, Article 721.03
indicates that one who neglects to remove such snow or ice within the
specified time is guilty of maintaining a nuisance. Id.
5
The motion is not paginated.
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by the City of Bethlehem.6 Ms. Brown noted that Kinser had no agent living
within 20 miles of Bethlehem, and thus, she suggested Kinser was in
violation of Section 107.7 of the Code.7
Kinser, as well as Mr. Vernal and Ms. Shepherd, filed responses to Ms.
Brown’s partial motion for summary judgment. Moreover, on February 4,
2016, Mr. Vernal and Ms. Shepherd filed a joint motion for summary
judgment. Therein, pointing to Ms. Brown’s admissions made during her
deposition testimony, they sought summary judgment on the basis of the
assumption of risk doctrine. Specifically, Mr. Vernal and Ms. Shepherd
indicated that Ms. Brown admitted the following uncontradicted facts during
her deposition:
On the way to [the subject property Ms. Brown] and her
daughter noticed lots of snow on the ground that was frozen.
For many parts of the walk they had to walk in the street
because sidewalks were still full of snow and ice; and they had
to climb over piles of snow to get from [the] street to the
sidewalk.
When they got to [the subject property], there was a small
pathway to the front steps with ice and snow on the steps. It
____________________________________________
6
Section 107.7 provides “no certificate of occupancy shall be issued for a
rental dwelling. . .unless there is provided to the inspection bureau the name
and address of an agent residing within a 20 mile radius of the City of
Bethlehem[.]” Ms. Brown’s Motion for Partial Summary Judgment, filed
12/31/15.
7
As the trial court aptly noted, in the conclusion of her motion for partial
summary judgment, Ms. Brown summarily sought a finding of liability as to
Kinser, Mr. Vernal, and Ms. Shepherd. However, consistent with her
complaint, Ms. Brown’s arguments in her motion are directed to Kinser
solely.
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was light out and [Ms.] Brown could see the snow and ice on the
steps to [the subject property]. It was slippery. There was a
banister on the right [s]ide of the steps and [Ms.] Brown sent
her daughter up the steps ahead of her to make sure that she
wouldn’t fall. They held onto the banister as they went up on
the right side of the steps, which was a little clearer.
After a while, [Ms.] Brown left [the subject property] to go
to a store to get some supplies for her hair. She left her
daughter [at the property] to play[.] It was still light out and
she went out the same door[,] stayed on the side of the steps[,]
and held onto the banister with her left-hand going down. The
steps were still slippery. When she returned she came back up
the steps again holding onto the banister and staying to the right
because the steps were slippery.
[Ms.] Brown never told [Ms. Shepherd] that the steps were
icy or slippery. She never asked her to put anything on the
steps, or clear them to help. She never asked [Ms. Shepherd] if
there was another exit.
Mr. Vernal and Ms. Shepherd’s Motion for Summary Judgment, filed 2/4/16 8
(citations to Ms. Brown’s deposition omitted).
Further, they indicated Ms. Brown admitted that, after her
appointment, she called a cab to retrieve her and her daughter, and the cab
driver told Ms. Brown to leave her bags/purse by the door and he would
carry them. Id. Ms. Brown admitted during the deposition that she was
aware that it was icy and she had to be careful as she descended the stairs.
Id. However, Ms. Brown chose to carry her purse and another bag, thus
descending the stairs without holding onto the railing resulting in her
slipping and falling. Id. Accordingly, Mr. Vernal and Ms. Shepherd claimed
____________________________________________
8
The motion is not paginated.
-6-
J-S76032-16
Ms. Brown was barred from recovery under the assumption of risk doctrine.
On February 16, 2016, Kinser filed a motion for summary judgment
averring it was entitled to judgment as it “is undisputed that [Kinser] was
under no duty to act for the protection of [Ms. Brown] at the time of [her]
alleged slip-and-fall at the single family rental property occupied by [Mr.
Vernal and Ms. Shepherd].” Kinser’s Motion for Summary Judgment, filed
2/16/16.9 To this end, Kinser argued it was a landlord out of possession
who had no control over any portion of the premises.10
Alternatively, echoing in large part the same portions of Ms. Brown’s
uncontradicted deposition testimony as set forth in Mr. Vernal and Ms.
Shepherd’s summary judgment motion, Kinser argued it was relieved of any
duty to protect Ms. Brown under the assumption of risk doctrine.
Ms. Brown filed an answer to Mr. Vernal and Ms. Shepherd’s joint
motion for summary judgment. Therein, she admitted all factual allegations
contained in Mr. Vernal and Ms. Shepherd’s motion for summary judgment.
____________________________________________
9
The motion is not paginated.
10
In support thereof, Kinser averred it was undisputed that, although the
initial lease between Kinser and Mr. Vernal expired on December 31, 2012,
the parties had executed a written lease extension, thus extending the term
of the written lease to December 31, 2013. Moreover, it was undisputed
that, prior to the expiration of the extension, the parties verbally agreed to
extend the lease on a month-to-month basis indefinitely, and as of the filing
of the motion, Mr. Vernal and Ms. Shepherd remained as tenants. Kinser
noted the parties’ written lease agreements provided that the tenant was to
“keep the property clean and safe,” and Kinser retained no control or
possession over any portion of the premises, including the steps at issue.
-7-
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Her only denial was to the averment “[Ms. Brown] is barred from recovery
by the doctrine of assumption of the risk[,]” since such averment constituted
a conclusion of law to which no response was needed. Ms. Brown’s Answer,
filed 3/7/16.11 Additionally, in her brief in opposition to Mr. Vernal and Ms.
Shepherd’s motion for summary, Ms. Brown confined her argument to the
issue of duty,12 i.e., which defendant (the property owner or the tenants)
had the duty to ensure the steps were free from snow and ice. She averred
that Kinser (the property owner) owed her the duty since there was no
written lease in place at the time of the incident.
Ms. Brown also filed an answer to Kinser’s motion for summary
judgment. Therein, she admitted all of the factual allegations contained in
Kinser’s motion as to the circumstances of her fall.
By order and opinion entered on April 27, 2016, the trial court denied
Ms. Brown’s motion for partial summary judgment, but granted Kinser’s, as
well as Mr. Vernal and Ms. Shepherd’s, motions for summary judgment. Ms.
Brown filed a timely notice of appeal specifically indicating that she was
appealing from the order entered on April 27, 2016, “with respect[] to Allen
Vernal and [Ed]wanda Shepherd, only.” The trial court directed Ms. Brown
____________________________________________
11
The answer is not paginated.
12
She also argued that the trial court should dismiss Mr. Vernal and Ms.
Shepherd’s joint motion for summary judgment on the basis it was untimely
filed. The trial court explained in its order/opinion that their motion was not
untimely filed. See Trial Court Order/Opinion, filed 4/27/16, at 10.
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to file a Pa.R.A.P. 1925(b) statement, Ms. Brown timely complied, and the
trial court filed a brief Pa.R.A.P. 1925(a) opinion relying on its previous
order/opinion.
With regard to the trial court’s entry of summary judgment in favor of
Mr. Vernal and Ms. Shepherd, Ms. Brown presents the following issue on
appeal:
Did the [trial court] err in not giving proper weight to the
fact that on all previous occasions when [Ms. Brown] entered or
exited the home it was daylight and on the occasion when [Ms.
Brown] left the home and slipped and fell, it was nighttime and
there was no porch light turned on which made conditions
entirely different from any previous time [Ms. Brown] entered or
exited the [subject premises]?
Ms. Browns’ Brief at 4.
Ms. Brown alleges that the trial court erred in holding, as a matter of
law, that she assumed the risk of her injury, thus relieving Mr. Vernal and
Ms. Shepherd of a duty of care. In this regard, she avers that there are
genuine issues of material fact. Specifically, she avers that she “testified
that there was no snow and ice on the stairs during the day and that on all
other occasions prior to her leaving the home that evening when she entered
or existed the house it was daylight out.” Ms. Brown’s Brief at 11. She
notes that, had she slipped on the stairs during the daylight hours, she
would not contest that she is barred from recovery under the assumption of
risk doctrine. Id. at 12. However, Ms. Brown avers that she is not barred
under the assumption of risk doctrine since:
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[S]he came to the steps for the first time in the dark with no
porch light lit when she exited the premises and was injured.
This was the first time she had come to this risk and she was not
previously aware of it nor was there any other option for egress.
Id. at 13.
We note the following relevant legal precepts.
[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)(citations omitted).
An order granting summary judgment will be reversed if
the trial court committed an error of law or abused its discretion.
Id. The decision relating to “whether there are no genuine
issues as to any material fact presents a question of law, and
therefore, on that question our standard of review is de novo.
This means we need not defer to the determinations made by
the lower tribunals.” Id. at 997 (citation omitted). It is settled
that, “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. (citation omitted).
Malanchuk v. Sivchuk, ___ A.3d ___, 2016 WL 4943061, *4 (Pa.Super.
filed Sept. 15, 2016) (citations, quotation marks, and quotations omitted).
Moreover, under the rule announced in Borough of Nanty–Glo v.
American Surety Co. of New York, 309 Pa. 236, 163 A. 523, 524 (1932),
summary judgment is prohibited “where the moving party relies exclusively
- 10 -
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on oral testimony, either through testimonial affidavits or deposition
testimony, to establish the absence of a genuine issue of material fact
except where the moving party supports the motion by using admissions of
the opposing party or the opposing party's own witness.” Lineberger v.
Wyeth, 894 A.2d 141, 149 (Pa.Super. 2006) (quotation and quotation
marks omitted) (emphasis in original). Additionally, it is well settled that
arguments not presented to the trial court in opposition to summary
judgment cannot be raised for the first time on appeal. McHugh v. Proctor
v. Gamble, 875 A.2d 1148, 1151 (Pa.Super. 2005) (citations omitted).
Here, we initially note that, in their motion for summary judgment, Mr.
Vernal and Ms. Shepherd argued that Ms. Brown was barred from recovery
under the doctrine of assumption of the risk. In her answer and supporting
brief in opposition to Mr. Vernal and Ms. Shepherd’s joint motion for
summary judgment, Ms. Brown admitted the facts as alleged by Mr. Vernal
and Ms. Shepherd and did not address their assumption of risk argument.
As the trial court notes in in its order/opinion, “[i]n her brief contra the
instant motion, [Ms. Brown] wholly fails to address [Mr. Vernal and Ms.
Shepherd’s] reliance on the assumption of the risk doctrine, electing instead
to further her theory that. . .Kinser is liable for her injuries.” Trial Court
Order/Opinion, filed 4/27/16, at 11.
In the case sub judice, Ms. Brown has alleged, for the first time on
appeal, that there is a genuine issue of material fact, i.e., that there was no
- 11 -
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snow or ice on the stairs during the daylight hours, and thus, Ms. Brown was
not aware of the dangerous conditions when she slipped and fell in
attempting to descend the stairs during the nighttime hours. As she did not
raise this argument in opposition to Mr. Vernal and Ms. Shepherd’s motion
for summary judgment, it is proper to affirm the trial court’s entry of
summary judgment in favor of Mr. Vernal and Ms. Shepherd on this basis.
See McHugh, supra.
Additionally, we agree with the trial court that there is no genuine
issue of material fact, and Mr. Vernal and Ms. Shepherd are entitled to
judgment as a matter of law under the assumption of risk doctrine. In this
regard, we rely on the trial court’s well-reasoned order/opinion. See Trial
Court Order/Opinion, filed 4/27/16, at 11-14. Further, we note that the
basis of Ms. Brown’s appellate argument is that she testified during her
deposition that there was no snow or ice on the stairs during the daylight
hours, and thus, the danger was not known or obvious to her when she later
descended the stairs in the dark without a porch light. See Ms. Brown’s
Brief at 11-12. However, she is mistaken in her characterization of her
deposition testimony. In fact, during her deposition, Ms. Brown repeatedly
admitted that she saw thick ice on the stairs when she initially arrived at the
property, as well as when she returned to the property after buying supplies.
Ms. Brown’s Deposition testimony, dated 10/14/15, at 36-39, 45. Ms.
Brown testified that, when she slipped and fell down the stairs, “I wasn’t
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rushing. I wasn’t—no, I wouldn’t say I was rushing because I knew it [sic]
was ice, so I had to be careful.” Id. at 57. Further, when asked if she
knew the steps were covered in ice when she descended and fell, Ms. Brown
replied, “Yes.” Id.
For all of the aforementioned reasons, we affirm the trial court’s April
27, 2016, order entering summary judgment in favor of Kinser, Mr. Vernal,
and Ms. Shepherd. We direct the parties to attach a copy of the trial court’s
April 27, 2016, order/opinion in the event of further proceedings.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2016
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Circulated 09/30/2016 10:20 AM
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•
lN THE COURT OF COMMON PLIA.S OF NORTJUMPTQN COUNTY,
lENNSYJ;tVAN.IA
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ANTOINETTE BROWN,-
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. KINSERB604, LLC, .
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Dttondaat C·Of 48..CV·i014-91.i "' ij
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ALLEN VERNAL and WANDA SHEPHERD, :. ·
Addit.lon•lDefend1111s.
ORDER QF CODRT
A.ND NOW, this -,J) ~ of April, 2016. aim• COllBideration of the parties'
te&peottvo~ons> it is hereby ORDIUlED and DIRIC'l'El> thaa: .
1. Plaintlff.Amoinetto.Brown'a Motion for Partial Swnmaty JudgmentisDENlED;
2. D•dmrt Kinser B604• ILC~sMononforSumm.aey Jud~ntia GRANTED; a:11(1
3. Additional De&Adanta Motion fot Summaty Iudgm«mt is GRANTED.
The ?ationalo -for this Otdet is set fQrth more :fully bi the tbllowing St~ent of R.casom.
• STATEMENT OFUASONS
This action comm.encod on s~ 25, 2(114, wich tho filing of• Complaint wherein
Plaintiff Antoinotte Bl'OWll brought claims for negligence and fosa of wagoa apiDSt Defendant
Kmsct B604,. U.C. aa 1he owner of a property located at '604 Culton Street in Bethlehem,
.. . .
N~ County. ~ .tho· basis h her ¢1alms, Plaintiff alleged that on or about February 11.
2014,ao waa at tho subject property as an invitee. when~~ fell- uponlet and snow that had not
btcn xemoved by Defendant Kinser> 'thereby sustaining mjutles to her legs requhing attglcal
260a ·
/ ..
. .
int&rventio11t·pmmanentdi81li=mellf, pe.1.tnan~t loss of sensation, Jhnited .mobility and loss of ...
employment. Qommabtt. ffll4-l:2.
Subsequentt(l tho accomplishmentof service, Defe;ndantIinstr animered the Complaint ..•.
on February 171 2015, at ~oh time Defmdant lins« also fil~ aJoinderCOmplaintagaltlst the
. '
tenants oftM proporiy, Additional Domndants, V~al Allen and Bdw~a Shopherd.1 Additional
DcfandantB answered 1h.o J'oJnder·Complaitrt on.Apll 9~ 2015. A status conterence was held on
September 14, 2015 boforo the HonorableMfahael J. Koury, at whfch time deadliw wero set fur·
diacove11 and the flling <>f dfsp.ositivemotfoms •.
. Plaintififimely f.dcd a Motioil for Partial Summary 1udatMnt, and thoredwr, peiendant
Kinser ud the Additlonal D*1dants £fled -~· ~wn Motion, foi· Summary Judgment TIR,so
. ~·.'
~Uers wero e&ndan:ts' Motion for Summaty Judgment. The
. xemainfng motions~ submitted on brief. AJl tmei, (3) motione are now ready for disposition.
. Standard of Law
in•
Summary j~t sems to oliminate the waste of tfmo and resouro~ of both litigants
and ~e Cotut whete a. trial would l>e a.usoless formalif.).'. L{w y. B@Jm.et 567. A.2d 691,
092 (Pi. Super. ~989). A.motion fbr summaryjudgment may only be grantod when Jt i! a~pa-ent
from the entire.record.inolusiveof thepleadings, depositions, af:tlcfavlf&,answers to interrogatories
~ admiasiom on file, that there are no triable issues. of~o.tial *ctin th& case and the movant
· fs cnfltled to &UIIUllatf judgment u a :matter ~ law. P AltC.P. 1035.2. a A mat&ial !tot is one
. .
2 Aft« thc TOll,vantpleadhijtaltolosed, but widin .uch dmc •• i,ct ti> unreasonably dlllay trial, qy JIRrtY ll'\IY
movo for NllJDat1 j'1llrt'inuat ~ eontrov«tedfaot.tcontalned1n the
phacllngs ~ res~t i1B roviffi" to material filed in supportofand In opposition 10
a motion for summary judgment anci to those, allegations m pleadings that are
llnoonhvvorted. Tho 00111.ft in ·iuling on a motion :fur aumma1y judpnent, must · · ·
. ignore oontmve.m,d faots comained in thopleadings.
OVerly v. I8ss,.SS4 A,2d 970. 912 (Pa. Super. 1989).. .
µi.rosolviog i ~ judptentmoti~ lt Js not& prcvino~ of the Court to deeid& the
facts, ·but only to ucorllin whether
• •
any issu~. of m.atcrl«l faot. cxlsta. Qodlewskl v, Pars
• I •
Manufacturjp,s Co•• 591 A.2d 106 {Pa. Super. ~?91); Summary j~ent ahoulcl only b& g1'80ted
in those eases that aro free and clw. ftom doubt. lohnao,t1 v. Hani1, 615 A2d 771 (P.a; Super.
· 1992).
Discunfon
. .
Pltlintiff's Mot.ton for Partial Summary J'nqment as .Aaafmt Defendant Kf1iser
lll4DefendantKfuer's.MMfontorS11mmaryJudP1ont
.
~ wrltt~ Plaintiffs. Mo~ ti .Pa1:tlal 8Ulll0lal1 Judgment seeks a ·finding of llabllity
I
lli&inst. all Dcfendanta with reap~t to· ~ clafms against fhOl.'11, Howmr, in keeping with het
Complaint. all of her argmncnt; are addressed to Detmdint Kinser. As tM b.asis of her moti~
Plmiff telies upon. Bethlehffl1 ·Citf Or 1lio causo of a~on or deftmse which ht tjury trial W011ld require rho mues to be 1111binltt~ to a jwy.
. J>J..R.Crl.P.1035.2. . . •
3
262a·
1nterna1iona.l Propel'ly Mmnter:wiioo Oode, and. tho ~tatement (Second) of Toi'fl §§. 355-362, to
arp thatDe&ndanthad tesp011slbilities for snowand ice .removal under theformer rendering it .
. Jiablowt Plaintiff'S mjut~ aB alandlor~mainfaµiliig COJltl'Ol rJVOf ~.POttiOll_Of tbe prelllfSCS under
thc1atter. ·
Soction 355 ~1he llostatement sets fi)1ththe genwali~l~ that uccptas otherwisepi'OvfJ~ ·
"a les,ot of land is not aubject to liability to his lcaoo or others upon the land with the COD$ent of .:
tho lessee or aublesaeo for phfsiolll harm .caused by any dan,er~ oomiltion
. . wbic.h comes into
oxistence after tne lessee hll8 taken pussesslon." RBs!A'raMBNr (S!CONt>) OF TORTS §· 355 (i965).
'fho exeq,tion3 to that general 1'1le are sot forth ac §§ 351 and 360 to 362 of the Re&atement
. .
Seotion 3571'el1ders ltahle a lessor who <1ontmcts
.
•ty a cavonant
. Jn ~loase or otherwi~
. to keep
tif:c land bl .r"Plir" and fails to do so, and § 360 through § 362 1.ffldm ale.9Sor Hable w.der certain
ciroumstancos Wht!lre·m, teta.ins co.ntrol of a portion of the land,3
. .
Bethlehem City OrdmlU\oe." Artiole 721 is ~led '1Streets and Sidewalka.» MmnoMin
ofLawinSypportolthe'M01ionfbrSµnmwyJudgmem~JMndmtKinserB~04.LLC.Bxhibit
K. S\lbseotlon 72 i.03 af the ordinanoe is entitled ''Remove! of Snow. Ioe 01• Rubbish," aad it
provi~s ar mllows:
~o person owning. coo.t1:01llnio,.• occu:r>yingany lot adjoining~ ftontinaupon any
of tho streets, aide-.lb, lanes, alleys, pavemonts, footways or nahts-of..way In the
City shall allow ot peimit any mud, sand:, gtavet leaves. stiow, iw or !Ubbfsh of
M'J sort ot desaripdon t<>" bo puttbig tort law
. .
prlndples aside> Def.&ndant K.inaei· oan bo held Hablo to Plaintiff pursuant to local ordinanoe.
· In order to establi.sh. that ono ·is a ludlotd out of pos8ffl.lon, the landlord must be able to
demonstratethe exist'cnO&. of a lease with the wnant.
The relatiol!Bblp of landlord. and tenant is always 01~1ed by a contract, either
expren or implied, and it cannot exist wi~ut .such a (!0]1fl-acl:Tho contract which
gives dse to the relattonabip of Js~ord and ~ ie known as- a !we. A lease
6
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mnbr~ any agreomcnt, whether expl'&BB or implied, wbioh gl~ tift to CM _,·t
~lat!onship of landlo1:d and 'tenant. A. lease agreement will only bo itnplied when
the oifflnnlstllnoes sftow ~t the latidlo:m-tenant rela1ioDship was contemplatod by
· allpatties OQnCemed. A lea~ aai:eement may be in wrltfngor parol •••
8A SUUM, PA. .TuR. 2D PROPBRTY § 26a (Aprl12016).
-. .
.
In the in8tant osse, Dofendant and Additional Defendant executed a wdtt~ .lease for the
' .
~ectpl'f.misel ~u January 4. 2012 for the period through December 31, 2012. MemQtandum of
Law in gort o(~ Moifon for S:urmnmY~t Qf~ur. I(jnsat B6Q4. ij,~ B)Chibit
D. Thereu~, the fentntleasod ~ enth'e premises~ and wasrespoll91ble for .mping it clean and
sate. Id. The lease tcrmina1ed at it, etld, date unlesa ext«lded fn \vrldng.Mi Th& parties executed a .. . ,
Ieaso extension thtoushDeoembm; 31, 2013. Memomncmm ofLawfnBtn>JQrt QflheMotion fOJ.'
BWPVY Judament ofDsfimdtmt Kins~ B@t LLQ. Exhibit o atio-21. SubseqDtiy, and at
~ time of.tho accidfflti Additional Dbl&ldantB continued to reside at the property without a
I
writtffl loaso or lease e~cm, paying~o ~e amo1U1tof rent IO Defendant?11 amoothly basis,
pursuant to a verbal agi~ent to nmain in an ongoing J.at?.dlord·tenant relftfionship for ·~
inde&i~petlod.Ig.at_22-2S;26-29;Memor,ndumofLawinSYP]ortoftheMotiQA(W~DmlNY
J11dgmemofPQforuf!nt\Kii)serB§04. LLC, Bx:ln'bl:tH 1¢43--44. On thosefaots, the Courtflnds the
record sufflolont to estal,lish that Def~t wa., a Ja:ndlotd out of possession at the time of the
aeaidentJ)Ul.'Suant to an effeetlvc ow tease that adopted 1ho temts ofth~ p~vl~s written ieeso:'
f
Q: Who t&reapontlbk fbt snowati.d.lcu~J under the loat?
. A::
...
Q:
Tholwlt.
·. Wu lhor~ a-verbol agtM11elt betw~en }'OU l!ldMr. All~ ttteilho oxtenslon ran out?
k Y~.
...Q: Ana ck) YoU tnombarrougbly what the tams o.t'that agreement wr:a?
A: 'f.\{.y rec~lleot.ll.lll would b~ h6 wanted co stay ill tM property, rttlt wuuld contlnu= o it it
. ,.
Qi lilwabouttno rostoftho written loase, was it~urwu.toretmdlnglbatthotfflus would~ tn p/aee1
Ar Yoe,
1
266a
J .
!
Based o~ the determination that De&ndant iB a landlotli out of posSA1ssion, tho Court
co'neludes ~at Ddcndant cannot be held liable to Plaintitf l)ll1'$d to pl'l~1ciples of tort _law.
'However, fn order te resolve tlae p.resentmotions, fhe Court must also oonsfder whether Defemant
is Ilable to Plaintiff under Jooid ordinanco. In this regard, Plaintltt 1'0lies on Article 721 af the
· Bethlehem City Ordinance. which teqtdros that~ ~owilmg, controll!Qg ot ooeupylng.inylot .
adjomJng ~ ftontfog upon any of the stree~.. ·sfdowalks, lanes1alleyi,, pavemenw. footways or
rlsh•of-way in tho City , •• [andJ [aJny person owning, conft'Olling and/01· plowing an oft'stl'CCt
parldng lot ~~, a sidewalk andfor ·any othet ,Pl'Ol)er(y aclj(,.ining or frontfag upon any street, ·
· sidewall(> lftllB, alloy, pavement.. footwty or rlght-of"way in the City" shall remove snow and.ice
f.tem sue-Ji. mu witbfn twent,~fo\11' (24) hows of woather event that cause, die ·&81Jle.
"~ fs a famUiar canon of cons~ of statu1es an4 otdi11ances, as ~ of conti·aotst ·
· w1U8, and other wiltten inab.'Umenfs, that pre.,umabl.v evoryword, aen~oe or proVlSion thei:efu is
in~decl for somci putposo, and aocoixfingly must be given effect" Stei:Ungy. City ofPllil~delP}ua.
106 A.2d 793. 794 (.Pa. 1954),
Liko statutes, the-prlnwy oajectfve of iilteipreflng otdinanoos ls 1o detmnine the
intesit of dle lcgialativo body that ·enacted 1hc ordinance. Whe.te !he wol'ds in an
ordinance are h :from all unhiguity, the !ettor of tho 01dfnimcc may not be
dlsregirded ~ tho pretext ofplll'auina its spitlt. 1 Pa.C.S. § 1921; m alao 1
Pa.c.s. §. 1903 (woids and. phtaaes in a statute· sllall bo COflBfiued in acc91\iance
with their common and aooepted usage) , •• TrlbanaJs co.nfr01lfod with interpreting
ll!defined term, in au ordinance at~.auid.ed tc oonstme w01'& and pbrasea in a
swibl&mmter>utilizethet1les otgramnw and apply their common and app,:oved
lJ8age, attd give undefinedtettns thelrplaio, ordirulry meaning. Dtocue ofAltoona-
John8town ,. Ztming HBOri71g Bd. of ]Jqrovgh ofSlate College, &99 A..2d 399 (l>a.
Conunw. 2006). · ··
Adema Outdoor Admt, LP y. Zonina Haadu Ikle o{ SQm&fiol4 '.l'wl, 909 A.2d 469, 484 (Pa.
Commw. 2006),
BriofiP.iMR!M10Pla!nttff)M9tlgnfl>rPartiaJ.8ummmyJµife:m,at,BxhlbitAat20,43·4S.
8
267a
I
:·
In order to determine whetherthere Is any possibility that Oefcndanfcould be Jiefd liable ,;
. .
to Plain1ffl'uncler Al'fiolo 721, the C<>wtm\aSt ~amine the po.rtionof theordinano~ referenclng any
'person o'WJlin& controillng.or OOCU}>yin1t' api'Opei'f1, pursuant to these princlplei ofcoustructio.n. ....
-i:t,.e Ordhlaru»defines th~ woi'd "Person» u
atJ:Y natural lndividual, fllDl, 1rUSt, partnership, asBOoiation, or c01poration, lnhis
or ltB ow.n capacity or an. adminiatratoi; cotlBorva~ exeou10r, trustee, reoo!ver,. 01·
othor ~ntativc appo~ by a eeurt, Wlumever thB word c'l)erBOll" isusccl in
any section of this ordlnuco J>l~,fl:,fng a. pe11alty or fine as appliod to
partnorshlps cr associations~ the wo1:d shall includo thepa1'fnets (bofh aetieral and
. limited) or memb~ thoroof and such word as aP,Rlied to oo~ona ahall ·
· Jnoludo the officers, agent,, or eirlployees tlicreof. who aft rt3P~ lest.vilitedAprU 14, 2016) (omp.wis added). Tholdo.ntlty of the
• • • •
. I
rosponslblo person must be dictated by legal principles. Thus) u hmJ where a landlord is wholly
out of p~ssion, euob. that ho leases fflo cntm, p:remiscs. does not ~tain ~txol of any porti~
and the agreement between landlord and tenant oalls tor tho tenant to rmintain the P1'0p$.l'ty, the
~- ls thel'Oaponabl~ party under the Jaw. Qittot'PbU9441PbJ11 x,fdm& Bvw CQ.. 145 A.
106> 705·07 (Pa. 1929) C'If the owner is out of possessiott becauac of a lease or otho1:wiao. his
liability ceasoa, and the 1enant or ocqier fa liable :fur mjmiea occurrlng to a third 9erson on tho
premises, becauae of suoh failuro to-repak a!dBwalks , •• a~ in ,poaaossion is- for all practloal
9
268a
/.
purposes, tho o.wn~ of tho property.'?; 3 Wssr,s PA. PR.Ac. TORTS: L~ w AND ADVOCACY§ S.13 .,
{Updated Decembet 2015),
In light of~ fol•in& it 1s apparemt that Defendant Kinser cannot be hetd liable to
~·
Plaintiff' as a matter ·of Iaw. Aoooidingly, Pefondant Kins~··s Moti0t1 tr Swrunery Judgment iiJ
GRANTID, and Plamtlffla .Motion fo(ParUal Summary Judgbfflf !s DBN:IED as io Defondant
I{inffl.
Pkf ntlfra Motion for Partial Summary JlNlgmeut as to Additional J)efendants
awlAdditionalDefeadants' Motion for ParUalSlunmat,y Judgment
. Although Plaintiff's Motion for Partial Summary Judg.tMi).t ls addressed to ~11 Defendants,
. .
PlaWiff sets forthfew fw, and no ·mgume.nt, Jn tm motion ~elf er in her supportmg brlc( with
reapect to .Addltional Detendants • .Acoordhw', lt ia o1car that J>1aintift1B not eotitled to aummary
judgrrmt aa a matter. of law a, to AdditiOll.al Dofo?Jdants, and the Court IllOVes to dlspositlon af
Additional Defendante' S\UM18l1judgmentmotion, which is predloetedon th.6 asaumptlonofth&
rl8k dootrlne.
Howo~. before th&.. Court
. can reaoh
.
'tho merlt8· of tho motioJJi it mu.gt first address
. .
Plaimifrs contention that the motion must ~o dismf8aed M untimely,·lrt s11ppart thereof, Plaintiff
r~les on a Status Conference Order 1Jiane(1 by the HODOrablo Michaol J. Koury on Septembei· 2,
2015 and:filedonSopteoiber 14, 2015. whkb.inpertinentpai:~setforthadmlineofDeccmbor
311 2015 for 1he filing of alt disposi~ve ~ons. AdditlOllal Defenaants• Motion was fded thlrty-
fm (3S) days after1he deadline, on Fe~ruuy 4, 2016. &wevu, the tnBttu was timelypraec.tped
to the. Algtrnent Coort list rif'Maroh 22, 2016J and brlefk ~ 1hnely fifed in aor.ordance with
N. C.R.C.P. N211(o).
In reaolviig Plainti~a .objection> the Court ~ guidance in the law goveming tile
submission of late poat.trial m9ti.ons. In th~contsx~ a c~. in. the absence ofan objection, may
10
2ssa
,•
''deot to ov.orlook the procedural dofault ••• but if objections ai:e lodged ••. the trial couxt rna.y
8til1, in ita dito,.~o.n, e1oct to entertain-~ motion 01•·dismiss the inotlon, but must first consider
whether the· objecting party would be _p1-qiudioed" 11s a n1suit. ArohQs Condo. as,•11, y, Robinson,
.
..
l~l A,3d 122, 129 (Pa. Commw. 2015). Applylng tho 8~ ana!Y&S to Additional Defendants' .
lat&.aummuy judgment motion, fho QQurtnotcs that Plaintiff &us to aver any ~udi90 resulting
thereft'Oi:n, and none Js apparem ft'Oll11he reeo1'd. Accordingly. tho Coll1t declines to dismiss the
.niotlon: aii undmely, and it moves to a consideration of the ~r1ts.
I
'
. Additional Defendants' summaty judgment motion is p,.«iioltted on a tbnnulation of the.
~&umption of tho risk doctdM ~ states that:
[w]ben an invitee enters business pmses, discovers dangerom cond!ti0l1$ which
am both obvious and awidublo, and .q.0Vttthoie$8 proceedsvofanta:dly to fflCOW1ter
them. the dootr.ine of aamnption of risk opexm merely aa a countor,patt to the
poaee.,sot'1 laok of duty to proteot the invitee ft'OlX>. tho~ lisles, By valuntar!J:y .
proccedln~to encolDltlr a knownor obvious danger. th& inviteei&-cleemed to have
agreed to accept the tlsk tl1d to unde?take to took out for himso1£ n ls ·precisaly
beca11Sethe invite~ assumos tho rlsk of~uryftom ob'Viousand avoidabledangers
that te possesa¢r owes the .invitee no duty to take measures to alleviate those
dangeJ.'a. . .
Montagi y, QmQf.994A.2d~, 635-36(Pa. Bupe,:. 2010).
l'n furtheranoo ~t their th~ory that Plaintiff's claims ire. baned by the assumption of the
~ Addltio.nal Defendanttl r~ om Plaintiff's ~·osition iestbnony.t
. fn her bdof contra the m~ ll'lOtion, Plaintiff MW!ly fails to address . Additional.
Doion4ffl111t zeliance on tho assumption ofthe risk dootrhlo, electing fmt~ to 1\mher her theory
1bat Dehdant Kin• is liable ibr hor htjurlos. Without cltmg to OJl~ iota of legal authority,
11
270a
! '
Plafnttff userls thst whon 11thero is a carryover tenant 1iot under t ~tm11 lease this in 110 way
t'eloases the prop01ty owner from liabilftr on the issue of snow·and foe re.tnoyal .•• The property
ow.Mr is sedatly liable even if there is 11 tenant and Jn this -0ase there iB no written agreement that
pas~ an obligation to the tenant fa any Wt\VLJ so liability squarely falls on tho shoukftts of tho
. property ow.nu~'· Pl$.tiffs Btiel in ()Qposltion to Defendants. All@. Yemai and Bdwancm .
Shgor4 «i.Motion (qr fartial SJmWl!tY JwjgmQQt
1 .. at 10. The Court lw already analyzed this
argument. wpra, and has rojo~ it.
. Posse&sol'i. of hlzld owe· a duty· t-0 prowot iavitees &-Olli foreseoable harm.
~ement. npra. §§ 341~ 343 & 343A. With respectto eooditbns on the land
which are kriow.n to or discoverable by the posses,or.· tho possessor fs subjeot to ... . ,
liabiley onJy if he, . · . .
(a) knows .or by .the exeroise of reasonablo oaro would discover the
oond'~ and sJiould realize that it involve., IUl uniwonable rlsk of harm
U> such .invitee. and
{b) should expect that thoy will not discover or realize 1hc danger, or will
:I.all to protect themselves against it, ~d
{o) fails to exerolsoreasoiiable cat~ t.o protect them againstihe dangei·. ·
. .
Rostatem~t, sup~ § 343. Thus, as is ~de oloar by sd:011 343A of the
Rettatemettt.
"[a] poasessor at land. is not Jiablo to ·his invitees for ph~sical harm
caused to them by any aotivi1y or con(lition on the land whose ·
· danger is known or obvioos to thcmj unless the· pos.,es.,o1· should.
antioq1tte the harm despite such knowledgo or obv.ious~ss.i.
R.Mtomt. · supra1 . § 343.A. Seo Atkir,la 1', Urban Rsi,v,lop,nent Aulh. of
· Pittsliurglft 489 Pa. 344, 3S2·53• ~14 A,2d 100, 104 (1980) f'the law of
Ponn,ylvaniadoes notimPQseliabilitylfit fsteasonableft>rthopo1Se8$orto believe
that the danp!'01l8 conditionwoild b~ obvloua to ~ dlscov01'adby his Jnv.ttce»);
Pa/inst.Ill' v. MiaW J. Bohb, Ina., 439 Pa. 101, 106-01, 266 A.2d 478, 4801 483.
(1970) (sam~)l RBpynealc v. Tarantino, 415 Pa. 9-2, 95, 202 A.2d IOS, 107 (1964)
(s~); Kubacki v. Citluru Water Co., 403 Pa. 472. 170 A.2d 349 (1961) (same),
A danger i1 deemed to be ~c~oua" when "both fho oondltfo11 Bild th6 rlsk are .
appal'eot to and would t,o roooamzed by a reasonable man, in the position of the
vlsltor, ex~slng normal pmieption. ~tellfgenoe, and judgment/' Resta~ent,
12
271a
~ f 343A COllllllmlt b, Pora danger to be 11Jmow11,,, itm118t''llotonlybe known
. to exist, but ... also b~reoognizedtbatitis d,mgM>usand thoprobabilityand gm,lty
of tho tbroatlUJteipart to the
posse1so.r1slaok of cn,tyto proteottM.invitoo ftotn thoset.1,lcs. SeoHalper 4 JWBB,
'ThG Law of Torts.Vol. 2 §'. 21.1{1956); Pros,er, Law of Tprts ~ 68 at 44<"446 (4th
ed. ·1971)~ Restatement, SUl)rils f 49oA oonmmto & § 496C-~ts b, 4 & e..
By volu.nwily pioooedingto encountera. known or obvlollS·danger, the invitee is
deemedto ban agreed to accept the dsk aml to undemke to took out .fut• himself.
Cartfflder Y, 11ttew;. 459 A.2d 120, 123-24~ 125 (Pa. 1983).
By her dopoaition testimony, Plaintlff t~· tb.attmstops leading to tho s:idl'Walk infi:ont
·ofAdditional·Defy.ndantit tealdenoe wero covercid in foe» andthere wa~ no cleaa: path io hiavei1e
them. Memomndmnof~ in: Sm>Jort oftbo WQtionfor Sutmnarv Judgmento£pefend81>.t,R'.imcr
~4. LLC, Bxhfbit Fat 36. Wh~n she arrived atth.e hom~ that da7, she used an adJacent baniste1·
w 'traverse 'tho ,t~ps. Zd. at 38. During Mt visit, she made a trip to the store, onoe again using the
adJacent banister to (ravetse tho steps on her way ·to thB stor~ ~ upo.n h~r ~m. Ji at 42-45.
0n these 09(l8Bions, ft WU light oqt; and P!aintift could see the ice md 8110W on. tho steps and she
noted 1hem to bo eHi,pecy. ~ HoWcMt, at dlo time of .her All, Plaintiff~ travet-sing the steps
without holding onto tho banister, e-.en though thero wes nothiug proven(lng her ~rorn doing so>
and ah.e know .6:om._Iw: experiew:cs earlier that day 1hat tho smps we.ro ~d and slippery~
fQ..atS1.
13
272a
Upon consideration, the Coartnnds f.hatPlaintfffwason notice of an open· and obvious ..
..,
ooncfilfoo, and &he could havo a,oided.the same artd p~ve.nred ~1' ltstm by holding the handrail
acijacentto the stairs,justai, she did 1hcprlor 1hree (3) timos that she tiivelled the stair• that ~e
~ . . .
day.~ Cqttendet Y, Fitteret, 469 A.2~ 120 {Pa.1983)(Plaintlffwa., owed no duty of o~ wh~
travmed a oleaiiy ioy patll into a buildhlg usiog available resources to mdy homlf on the wa•1t
. but did not UBe tVallable. res<>urceB to balance herself upon oxftiDg tfle building. thereby
. . .
undertaking a known and. avoldable risk). Aooordfng!y, Additional Defelldanra' Motio.u for
SummaryJudgane.nt fB hereby GRANTED,
llYTBI COURT:
J.
14
273a