Frie, C. v. Fairlane Village Mall
Opinion
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CAROL FRIE IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellant
v.
FAIRLANE VILLAGE MALL AND HUDSON ASSOCIATES, LLC
Appellee No. 1508 MDA 2019
Appeal from the Order Entered August 16, 2019 In the Court of Common Pleas of Schuylkill County Civil Division at No: S-1696-16
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J. MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 09, 2020 Appellant, Carol Frie, appeals from an order granting summary judgment to Appellee, Fairlane Village Mall and Hudson Associates, LLC, in this personal injury action. Appellant tripped and fell while visiting Appellee’s premises, a shopping mall. The trial court entered summary judgment against Appellant by concluding that she “failed to introduce any evidence as to what caused her to fall.” Pa.R.A.P. 1925 Opinion, 12/2/19, at 4. We disagree. Viewed in the light most favorable to Appellant, the evidence indicates that an uneven sidewalk was the cause of Appellant’s fall. Accordingly, we vacate the order granting summary judgment to Appellee and remand for further proceedings.
The accident. The record reflects that Appellee is the owner of a shopping mall in Pottsville, Pennsylvania. On October 7, 2014, Appellant
tripped and fell on Appellee’s property in the course of her activities as a business invitee. Prior to the accident, Appellant parked her car and walked toward the mall. Deposition of Appellant (“Frie dep.”) at 21. She stepped onto a sidewalk near the south entrance of the mall, intending to visit Brothers Buffet inside the mall. Id. The sun was out and there were no adverse weather conditions. Id. at 22.
Appellant fell forward on the sidewalk while looking straight ahead (not at the ground). Id. at 22-24. She did not recall which leg she was stepping with when she fell. Id. at 23. In her responses to Appellee’s interrogatories, she stated that she tripped and fell due to “unkempt property” on Appellee’s premises. Appellant’s Response to Interrogatories, # 18.
During her deposition, Appellant testified:
Q. Did you look to see what if anything caused you to fall?
A. Yes, I looked around.
Q. And what if anything did you see?
A. Just the pavement.
Q. And when you fell do you recall whether . . . the foot you were walking with came into contact with something?
A. No.
Q. You don’t remember?
A. No.
Frie dep. at 25.
Photographs of the accident scene. After falling, Appellant reported the incident to Jessica Miller, an employee in the mall’s management office. Id. at 30-31. Appellant and Miller walked to the location where Appellant fell, and Miller took photographs of the scene. Id. at 31. With regard to the photographs, Appellant testified:
Q: Looking at these . . . three pages of photographs, does this look like the area where you fell?
A: If the pictures are here, I guess . . . .
Q: Ms. Miller attached these photographs to the incident report, do you believe this is the area where you fell if she attached the photos?
A: Yes.
Q: And you can see the date on those photos correct?
A. Yes.
Q: And the date indicates 10/7 of 2014, correct?
A: Yes.
Q: And that’s the date of your fall, correct?
A: Yes.
Id. at 33, 34.
When Miller was asked how she made the decision to photograph this area, Miller testified that Appellant “pointed in the area.” Deposition of Jessica Miller (“Miller dep.”) at 49. Miller noticed that the sidewalk had a “little lip,” and she “decided . . . to show how much of a lip there was.” Id. Miller took
a close-up photograph of the lip and two other photographs at “more of a distance so you can kind of see where [Appellant] was claiming she fell.” Id.
Incident report. After taking the photographs, Miller filled out an incident report in which she wrote that Appellant “tripped over the uneven sidewalk.” Incident Report, 10/7/14, at 2. The incident report asked for the “exact location” of the incident with “landmarks.” Incident Report at 1. Miller testified that she filled out this section of the incident report “after [Appellant] had taken me out there to show me.” Miller dep. at 36. Miller wrote that Appellant “tripped over the uneven sidewalk and fell . . .” Id. at 41. Miller testified that the words “uneven sidewalk” were her own words, not Appellant’s. Id. at 38. When asked how she made that observation, she testified:
A. [Appellant] told me where she tripped. She showed me where she tripped, so I said that she tripped over the uneven sidewalk that was there where she showed me.
Q. Okay. And that was based upon what you were seeing in conjunction with what she was saying?
A. Yes.
Id. at 41-42.
When Miller was asked whether Appellant “specifically indicate[d] that she tripped on the differential in the sidewalk,” Miller answered, “No, she just pointed in the general area of where she fell.” Id. at 63. Miller testified:
Q. So did you assume that [the lip of the sidewalk was] what caused her to fall?
A. I assumed that, yes.
Q. But didn’t she tell you that?
A. No.
Id. at 64.
Significantly, during Appellant’s deposition, Appellant reviewed Miller’s summary and was asked whether she disagreed with anything in the summary. Frie dep. at 39-40. Appellant answered, “No.” Id. at 40.
Trial court’s decision. The trial court concluded that Appellant
failed to introduce any evidence as to what caused her to fall. She did not identify the ‘little lip’ identified by Miller as the assumed location where [she] tripped. She simply stated that she was walking along, and she fell. [Appellant’s] testimony failed to identify what caused her to fall. In order to establish liability in an action of this nature, it is necessary for the plaintiff to prove what actually caused the accident, not what might possibly have caused it . . . Here, [Appellant] was the only eyewitness presented. [Appellant] may very well have tripped on the little lip, but she may also have tripped on a properly maintained section of the sidewalk. For this reason, we granted summary judgment to [Appellee].
Trial Court Opinion, 12/2/19, at 4-5 (citations omitted).
On August 16, 2019, the trial court entered summary judgment in favor of Appellee. On September 13, 2019, Appellant filed a timely appeal to this Court. The trial court filed a Pa.R.A.P. 1925 opinion and then permitted
Appellant to file a Pa.R.A.P. 1925(b) statement nunc pro tunc.1 Accordingly, we will address the issues raised in this appeal.
Appellant raises the following issues in this appeal:
[1.] Whether the trial court erred in granting summary judgment as to all defendants striking [Appellant’s] complaint with prejudice?
[2.] Whether the trial court erred in granting summary judgment where the facts viewed most favorably to [Appellant] demonstrate sufficient evidence exists regarding the alleged defect?
[3.] Whether the trial court erred in granting summary judgment where there are genuine issues of material facts such that a jury determination is required?
1On September 12, 2019, upon receiving a courtesy copy of Appellant’s notice of appeal, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant failed to do so. On December 3, 2019, the trial court filed a Pa.R.A.P. 1925 opinion that mentioned Appellant’s failure to file a Pa.R.A.P. 1925(b) statement but also explained why it found the substance of Appellee’s summary judgment motion meritorious.
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