Bruno v. Stroud Mall Associates

35 Pa. D. & C.5th 354
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedDecember 19, 2013
DocketNo. 11936 CIVIL 2009
StatusPublished

This text of 35 Pa. D. & C.5th 354 (Bruno v. Stroud Mall Associates) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bruno v. Stroud Mall Associates, 35 Pa. D. & C.5th 354 (Pa. Super. Ct. 2013).

Opinion

WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed by Stroud Mall Associates, Stroud Mall, LLC, CBL Associates and ERMC (hereafter “defendants”) on October 8, 2013. On November 5, 2013, Jocelyne Bruno (hereafter “plaintiff’) filed a response to defendants’ motion for summary judgment. In the motion, defendants argue that summary judgment should be granted because there has been no breach of duty on the part of defendants. Defendants state that no facts have been plead by plaintiff that call into question any duty owed to the plaintiff for failure to maintain its premises. More specifically, defendants argue that plaintiffs own admissions establish that plaintiff knowingly stepped directly onto snow in a landscaping area of the premises where there is no pedestrian access. Defendants contend Pennsylvania case law clearly establishes that they have no responsibility to remove snow or ice from a non-pedestrian area or walkway. Defendants state that they owed no duty to plaintiff to remove snow from the non-pedestrian area where plaintiff allegedly fell.

Following initial pleadings, discovery, and depositions, [356]*356defendants filed the instant motion for summary judgment and abrief in support ofthe motion for summary judgment. Plaintiff then filed a response to defendants’ motion for summary judgment and a brief in support of plaintiff’s response to defendants’ motion for summary judgment. Oral arguments on the matter were held on December 2, 2013.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa.Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Tingling, 700 A.2d 508, 512 (Pa.Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

[357]*357In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa.Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa.Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the non-moving party has adequate knowledge and that the means of information are within the control of the non-moving party. Elia v. Olszewski, 84 A.2d 1889 (Pa. 1951).

In this case, defendants argue that there is no genuine issue of material fact with regard to the duty owed to plaintiff. Defendants assert they owed no duty to plaintiff to clear a non-pedestrian area from snow and ice because it was not foreseeable that plaintiff would walk in that area to reach the defendants’ premises. Specifically, defendants argue that plaintiff knowingly and admittedly stepped directly onto snow in a landscaping area which had no pedestrian access. Defendants further state that plaintiff failed to observe an open and obvious condition, and that plaintiff failed to use an alternate safe means of access to the Burger King located on defendants’ premises. There is also a bank, additional restaurant and an indoor shopping mall located on defendants’ premises.

Plaintiff argues there are genuine issues of material fact, and that summary judgment is not proper at this time. In support of this position, plaintiff states that a trier of fact should make a determination as to whether or not plaintiff walked through an area where the defendants knew or should have known that pedestrians would access the Burger King parking lot on defendant’s premises. Plaintiff [358]*358argues that since the defendants provided no sidewalks in that area, plaintiffs only other choice was to walk up a snow covered, narrow, and very busy access roadway. Further, plaintiff states that defendants provided no alternate routes when they plowed in the only safe access area to the Burger King. Moreover, plaintiff claims that defendants knew or should have reasonably known that the area where plaintiff traversed was hard packed and dirt covered, evidencing common and recent pedestrian use.

In determining the standard of care owed by a possessor of land to those who enter upon the premises, both parties cite to the Pennsylvania Supreme Court case of Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983). In that case, the court made a determination of the duty owed by a possessor to an invitee, which is to protect invitees from foreseeable harm. Id. at 123. The court went on to adopt the Restatement (Second) of Torts §§ 343 & 343A, which states that the possessor is subject to liability 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 invitee, 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.” Id.

The court then went on to quote § 343A of the Restatement (Second) of Torts, stating that 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.” Id. (quoting Restatement, supra, § 343A).

[359]*359In further explaining the duty owed by a possessor of land to an invitee, the court went on to explain the terms “known” and “obvious” as used in the Second Restatement.

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Related

Jones v. Three Rivers Management Corp.
394 A.2d 546 (Supreme Court of Pennsylvania, 1978)
Thompson Coal Co. v. Pike Coal Co.
412 A.2d 466 (Supreme Court of Pennsylvania, 1979)
Musser v. Vilsmeier Auction Co., Inc.
562 A.2d 279 (Supreme Court of Pennsylvania, 1989)
Carrender v. Fitterer
469 A.2d 120 (Supreme Court of Pennsylvania, 1983)
RITMANICH v. JONNEL ENTER., INC.
280 A.2d 570 (Superior Court of Pennsylvania, 1971)
Phaff v. Gerner
303 A.2d 826 (Supreme Court of Pennsylvania, 1973)
Mattia v. Employers Mutual Companies
440 A.2d 616 (Superior Court of Pennsylvania, 1982)
Cosmas v. Bloomingdales Bros., Inc.
660 A.2d 83 (Superior Court of Pennsylvania, 1995)
Long v. Yingling
700 A.2d 508 (Superior Court of Pennsylvania, 1997)
Davis v. Pennzoil Co.
264 A.2d 597 (Supreme Court of Pennsylvania, 1970)

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Bluebook (online)
35 Pa. D. & C.5th 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bruno-v-stroud-mall-associates-pactcomplmonroe-2013.