Zangenberg, G. v. Weis Markets ( 2016 )

J. A21030/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GRACE ZANGENBERG, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPELLANT :
:
v. :
:
:
: No. 2574 EDA 2015
WEIS MARKETS, INC., CONTRAST :
LLC AND ENTERPRISE SOLUTIONS :
:
:
:
Appeal from the Order Entered August 7, 2015
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 10500-CV-2012
BEFORE: Bender, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 17, 2016
Appellant, Grace Zangenberg, appeals from the August 7, 2015 Order
entered in the Monroe County Court of Common Pleas granting the Motions
for Summary Judgment filed by Appellees Contrast LLC, and Enterprise
Solutions and making final the April 2, 2015 Order granting Appellee Weis
Markets, Inc.’s Motion for Summary Judgment. After careful review, we
affirm on the basis of the trial court’s Opinions filed April 2, 2015, and
October 23, 2015.
The trial court’s Pa.R.A.P. 1925(a) Opinion includes a thorough and
complete narrative of the facts and procedural history in this case, which we
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adopt for purposes of this appeal. See Trial Court Opinion, filed 10/23/15,
at 1-3; see also Trial Court Opinion, filed 4/2/15, at 5-7. While we will not
go into exhaustive detail here, we briefly summarize the case as follows.
On May 23, 2013, Appellant slipped and fell while entering Appellee
Weis’s store. She did not see anything on the floor before or after she fell.
She stated that she “just slipped” and that the floor was very slippery
although she did not know why. Trial Court Opinion, filed 4/2/15, at 6. An
employee of the store examined the area immediately after Appellant fell,
and did not see anything. Appellant’s daughter, who did not witness the fall,
visited the store a few hours later and noticed a black scuffmark in the area
where her mother stated she fell.
In the days leading up to Appellant’s fall, Appellee Weis had had the
floors of the store cleaned and waxed by Appellees Contrast LLC, and
Enterprise Solutions. Following the fall, Appellant sued under a theory of
negligence, alleging that a waxy buildup must have caused Appellant’s fall
and that Appellees “were careless and negligent because they caused and
allowed the floor in question to be excessively slippery due to wax.” Trial
Court Opinion, filed 10/23/15, at 2.
On November 24, 2014, Appellee Weis filed a Motion for Summary
Judgment. Following oral argument, the trial court granted the motion by
entering an Order and Opinion on April 2, 2015. Appellees Contrast LLC and
Enterprise Solutions filed a Motion for Summary Judgment on June 4, 2015,
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which the trial court granted in an Order filed on August 7, 2015. On August
25, 2015, Appellant timely appealed. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue:
Whether the [t]rial [c]ourt erred in granting summary judgment
in favor of all Appellees when a genuine issues [sic] of material
fact existed as to the cause of Appellant’s fall.
Appellant’s Brief at 6.
Our standard and scope of review of a trial court’s grant of summary
judgment are well-settled:
We view the record in the light most favorable to the nonmoving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Only
where there is no genuine issue as to any material fact and it is
clear that the moving party is entitled to a judgment as a matter
of law will summary judgment be entered. Our scope of review
of a trial court’s order granting or denying summary judgment is
plenary, and our standard of review is clear: the trial court’s
order will be reversed only where it is established that the court
committed an error of law or abused its discretion.
Indalex Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 83 A.3d
418, 420 (Pa. Super. 2013) (citation omitted). “[W]here a motion for
summary judgment has been made and properly supported, parties seeking
to avoid the imposition of summary judgment must show by specific facts in
their depositions, answers to interrogatories, admissions or affidavits that
there is a genuine issue for trial.” Marks v. Tasman, 589 A.2d 205, 206
(Pa. 1991) (citations omitted).
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After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court we conclude
that there is no merit to the issue Appellant has raised on appeal. The trial
court opinion properly disposes of the questions presented, including a
thorough analysis of Pennsylvania jurisprudence regarding slip and fall
claims. See Trial Court Opinion, filed 4/2/15, at 4-8 (concluding: (i) no
genuine issues of material fact existed to preclude summary judgment in
favor of Appellee Weis; (ii) Appellant did not offer any evidence that
Appellees had actual notice of a dangerous condition; and (iii) Appellant “has
not produced any evidence that an application of wax created a dangerous
condition so obvious as to amount to evidence [from] which an inference of
negligence would arise.”). As the trial court aptly summarized: “[Appellant]
has only produced the testimony of her daughter who stated that there was
a black skid mark on the floor. This is not evidence of improper application
of wax which created a dangerous condition. Moreover, [Appellant’s]
daughter was not present at the time she fell [and could not say that the
skid mark was related to her mother’s fall].” Id. at 5, 7. See also Trial
Court Opinion, filed 10/23/15, at 13 (incorporating the reasoning of the April
2, 2015 Opinion as to all Appellees).
Accordingly, we affirm on the basis of the trial court’s Opinions filed
April 2, 2015 and October 23, 2015.
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The parties are instructed to attach copies of these Opinions to all
future filings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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COURT OF coMMoN PLEAS OF MONROE
FORTY-TIDRDJUDICIALDISTRICT
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COMMONWEALTHOFPENNSYLVANIA !By __ (81lli~ __ j
GRACE ZANGENBERG : 10500 CV 2012
Appellant-
vs.
WEIS MARKETS, INC. and
CONTRAST, LLC and
ENTERPRISE SOLUTIONS
Appellees 1925(a) STATEMENT
STATEMENT PURSUANT TO Pa. R.A.P. 1925(a)
We submit this statement pursuant to Pa. R.A.P. 1925(a), in response to Grace
Zangenberg's ("Appellant") Concise Statement of Matter.s Complained of_ on Appeal. Appellant
appeals this Court's granting of Defendants', Contrast, LLC. And Enterprise Solutions,
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("Appellees") Motion for Summary Judgment entered on August 7, 2015. In summary,
. Appellant complains on appeal that: (l)the Trial Court erred in granting the .Defendanls' Motion
for Summary Judgment as genuine issues of material fact existed as to Defendants' notice of
dangerous conditions and as to the cause of her fall; (2)the Trial Court erred in conducting its
own independent research -~d raising arguments not raised by counsel in the grant of!the Motion
for Summary Judgment; and (3)the Trial Court's Order granting the Motion for Summary
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Judgment was contrary to the facts of this case. I
Plaintiff commenced the first of the consolidated actions on December 12, 201!2, by filing
a Complaint against defendant, Weis Markets, Inc. Plaintiff commenced the second ~fthe
consolidated actions by Praecipe for Writ of Summons filed on November 8, 2013 and on March
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28, 2014 by filing a Complaint against defendants Contrast LLC and Enterprise Solution. By :
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Order dated August 29, 2014, this Court approved a Stipulation to Consolidate signedlby all
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counsel and consolidated these two actions for all purposes at docket No. 20.'2 CV I OFOO
In her Complaint against Appellees, Appellant averred that on March 26, 2012, at the
Weis Markets store on Route 611 in Tannersville, she was caused to slip on the floor lear the
podium as a result of the floor being slippery. Appellant averred against both Appellees that
they were careless and negligent because they caused and allowed the floor in question to be
excessively slippery due to wax. In their Answers to Appellant's Complaint, both apJellees
denied these averments and denied all liability to Appellant.
Weis Markets contracted with Appellee Enterprise Solutions to provide cleaning services
to tl1e store in question in Tannersville, which included bi-annual floor waxing. In rul. I
Enterprise Solutions subcontracted with Appellee Contrast LLC to provide the actual icleilning
services at the Weis Markets in Tannersville. The bi-annual floor waxing is done in sections
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overa period of several days. Appellee Contrast LLC stripped and waxed the floor of the subject
Weis Market from March 22-26 2012. The record provides that while an area offloJ is being
waxed, the area is cordoned.off and there is no access to those areas until the wax is entirely dry[
The night prior to Appellant's accident, Appellee Contrast LLC personnel stripped Jd re-waxed
a section of the subject Weis Markets store ru{d finished their work by 6:00 am. The tax used
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by Contrast LLC takes ten to fifteen minutes to dry. Exhibit L9 at page 9. Appellant'' s accident
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occurred late in the afternoon. Zangenberg deposition, page 22, lines 11-12. Appellant testified
at the time ~fher deposition that she fell because the floor was slippery but she did nL know
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why it was slippery. Id., page 28 line 19 to page 29 line 15. No testimony or evidenJe was
presented that identified the cause of the slippery floor was the floor wax used by aplellees. In
the "Customer Accident Report" forms produced by the Weis for the two year time period
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including the Appellant's fall, none of the forms stated the cause of a fall was due to h slippery
floor caused by floor wax. On April 1, 2015, this Court granted the Motion for Sj.aary
Judgment of defendant Weis Markets, finding that there were no genuine issues of mLerial facts.
We incorporate the factual and procedural history from this Court's Opinion filed ApL 1, 20151
On September 4, 2015, after Appellant filed a Notice of Appeal, we direct;d that ApJ.ellant file l
Concise Statement of Matters Complained of on Appeal. On September 21, 2015, A!pellant
filed a Concise Statement of Matters Complained of on Appeal.
Appellant's first matter on appeal asserts that this Court erred in granting the Defendants'
Motion for Swnmary Judgment as genuine issues of material fact existed as to Defendants'
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notice of dangerous conditions and as to the cause of her fall. This relates directly to be
Appellant's third matter on appeal that this Court's granting the Motion for Summary Judgment
was contrary to the facts of this case. Appellant further argues that this finding was not
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supported by the record. We incorporate our Opinion, dated April 1, 2015, which addresses the
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reasoning for finding that there were no genuine issues of fact in respect to the Defendants'
notice of dangerous conditions and the cause of Appellant's fall.
The Appellant's 'remaining argument on appeal is that this Court erred in conducting its
own independent research and raising arguments not raised by couns~l in the grant of lthe Motion
for Summary Judgment. Specifically, A~pellant argues that before this Court's referehce to the
same, no party in ~1is matter relied upon the factual analysis contained in Myers v. Pel Traffic
Co., 606 A.2de 926 (Pa. Super. 1992). Appellant argues this Court erred in conductink
independent research and raising arguments not raised by counsel for any party in ourlgrant of
the Motion of Summary Judgment in favor of Weis Markets. The case the Appellant is referrin ,
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to was cited by this Court only in reference to when the burden shifts from the moving party to
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the non-movant. This Court did not liken the facts of the present case to those in MyJ:rs v. Penn
Traffic Co., nor did it decide the present case solely on the facts and decision in MyJs v. Penn
Traffic Co. As such, the Appellant's arguments on appeal are without merit. For this: reason,
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and for the reasons stated in our April 1, 2015 Opinion, we believe that Appellant's assertions of
trial court error are without merit. !
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BY THE COURT:
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STEPHEN M. HIGGINS, J.- !
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Maureen E. Kelly, Esq. _.
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John R. McHaffie, Esq.
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