Heichel v. Smith Paving & Construction Co.

42 Pa. D. & C.5th 483
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedOctober 15, 2014
DocketNo. 10057 of 2010
StatusPublished

This text of 42 Pa. D. & C.5th 483 (Heichel v. Smith Paving & Construction Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heichel v. Smith Paving & Construction Co., 42 Pa. D. & C.5th 483 (Pa. Super. Ct. 2014).

Opinion

COX, J.,

Before the court for disposition are motions for summary judgment filed on behalf of the defendants Smith Paving And Construction Company, a/k/a Smith Paving & Construction Company (hereinafter “Smith Paving”) and Grubb & Ellis Management Services, Inc. (hereinafter “Grubb & Ellis”), which argue that the plaintiffs failed to establish a prima facie case for negligence as they are unable to establish the cause of Patricia Heichel’s fall and they are unable to demonstrate that the snow or ice accumulated in ridges or elevations of such size to unreasonably obstruct travel and created a dangerous condition. Defendant Grubb & Ellis also asserts that it is entitled to summary judgment on its crossclaim as it is a third party beneficiary of the contract between defendant Smith Paving and Liberty Mutual Insurance, Co. (hereinafter “Liberty Mutual”) in which defendant Smith Paving agreed to indemnify defendant Grubb & Ellis for liabilities arising out of defendant Smith Paving’s performance of snow removal on the premises in question.

[485]*485Defendant Grubb & Ellis is the property manager for the Liberty Mutual Building which is located at 2501 Wilmington Road, New Castle, Lawrence County, Pennsylvania. Liberty Mutual entered into a contract with defendant Smith Paving for snow removal on the Liberty Mutual premises for the 2007 through 2008 winter. Defendant Smith Paving’s main responsibilities pursuant to the contract were to remove snow and ice from the parking lot and walkway area.

OnFebruary 12,2008, defendant Smith Paving provided continuous snow removal services to the Liberty Mutual premises commencing at 4:00 a.m. to midnight. There was a total charge for 20 hours of continuous service on that date for an amount of $11,800. The service included 20 hours of plow truck service, 80 tons of salt, 20 hours of backhoe service, 5 hours of plow truck service, 10 hours of labor on the sidewalks and 60 bags of calcium. On that date, the New Castle area received six to ten inches of snow that changed to ice and freezing rain: There were no complaints made to defendant Smith Paving or defendant Grubb & Ellis that there was ice or snow on the Liberty Mutual parking lot or sidewalks. On that date, Patricia Heichel was leaving work and traversing the parking lot on the Liberty Mutual premises on her way to her vehicle when she fell. Mrs. Heichel failed to explain whether the parking lot, including the immediate area of her fall, was covered with snow or ice nor could she recall many details from that incident, including the type of shoes she was wearing or the time when the fall occurred. She also does not recall the cause of her fall. Lori Thorman, Mrs. Heichel’s co-worker, responded to the report that Mrs. Heichel fell. Ms. Thorman testified that she had to walk “very cautiously and it was slippery” in the general area [486]*486where the fall occurred. She recounted that she had to hold onto the security guard and was taking small steps when walking on that area. Ms. Thorman explained that the parking lot was slippery but did not describe whether there was ice or snow in that area. It must be noted that Ms. Thorman was walking on the parking lot after Mrs. Heichel fell. There is no other testimony stating that the parking lot or walkways were covered with snow and ice at the time of Mrs. Heichel’s fall. The plaintiffs have presented photographs derived from Liberty Mutual’s surveillance cameras that depicted the condition of the parking lot and the area where Mrs. Heichel fell. However, those photographs are taken from a distance that makes it difficult to decipher whether the parking lot was covered with ice and it appears that the parking lot was wet and there was no snow or ice in those areas.

As a result of that incident, the plaintiffs filed suit on January 13, 2010, asserting claims of negligence against defendant Smith Paving and defendant Grubb & Ellis. Gerald Heichel asserted a claim for loss of consortium against the defendants. On March 29, 2010, defendant Smith Paving filed an answer, new matter and crossclaim pursuant to Pa.R.C.P. No. 1031.1, in which it contends that it is entitled to contribution or indemnity from defendant Grubb & Ellis, if defendant Smith Paving is found to be liable in this case. On April 29, 2010, defendant Grubb & Ellis filed its answer, new matter and crossclaim pursuant to Pa.R.C.P. No. 1031.1, asserting it is a third party beneficiary of the contract between Liberty Mutual and defendant Smith Paving and it is entitled to contribution or indemnity from defendant Smith Paving if it is found to be liable in the current matter. On May 10, 2010, defendant Smith Paving filed a reply to defendant Grubb [487]*487& Ellis’ crossclaim, and defendant Grubb & Ellis filed its reply to defendant Smith Paving’s crossclaim. On March 17, 2014, defendant Smith Paving filed its motion for summary judgment. Defendant Grubb & Ellis also filed a motion for summary judgment on March 26, 2014. Both motions for summary judgment argue that the plaintiffs failed to establish a prima facie case for negligence as they are unable to establish the cause of Patricia Heichel’s fall and they are unable to demonstrate that the snow or ice accumulated in ridges or elevations of such size to unreasonably obstruct travel and created a dangerous condition. Defendant Grubb & Ellis also asserts that it is entitled to summary judgment on its crossclaim as it is a third party beneficiary of the contract between defendant Smith Paving and Liberty Mutual in which defendant Smith Paving agreed to indemnify defendant Grubb & Ellis for liabilities arising out of defendant Smith Paving’s performance of snow removal on the premises in question.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. [488]*4881035.2.

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 164 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)). The moving party bears the burden of proving the non-existence of any genuine issue of material fact. Kafando, supra. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000); Kuney v. Benjamin Franklin Clinic,

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Bluebook (online)
42 Pa. D. & C.5th 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heichel-v-smith-paving-construction-co-pactcompllawren-2014.