McNeill v. Ginsberg

28 Pa. D. & C.4th 531, 1996 Pa. Dist. & Cnty. Dec. LEXIS 386
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedJanuary 24, 1996
Docketno. 94-00674
StatusPublished

This text of 28 Pa. D. & C.4th 531 (McNeill v. Ginsberg) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McNeill v. Ginsberg, 28 Pa. D. & C.4th 531, 1996 Pa. Dist. & Cnty. Dec. LEXIS 386 (Pa. Super. Ct. 1996).

Opinion

SALUS, J.,

This appeal stems from the court’s orders of November 1 and November 13, 1995, granting the motion for summary judgment of defendants Morton L. Ginsberg and the Lynnewood Gardens Apartments. Plaintiff Edna McNeill contends that the court erred in entering summary judgment where plaintiff was a business invitee, there existed substantial questions of material fact and defendants breached their duty to warn plaintiff of and/or repair a hazardous condition on defendants’ property. Plaintiff’s contentions are addressed below.

FACTUAL AND PROCEDURAL HISTORY

On January 8, 1993, plaintiff, age 76, was returning to her home in the Lynnewood Gardens Apartments after a morning of grocery shopping. There was a light but steady rain falling, and, due to the weather conditions and her numerous packages, plaintiff elected not to park her car in the designated parking area but to seek on-street parking nearer to her apartment. No on-street parking was available, so plaintiff parked illegally in a driveway area for the purpose of unloading her groceries as quickly as possible. By parking in this area and taking a short cut across the grass, plaintiff estimated [533]*533that she would only have to carry her groceries a distance of 15 feet. Deposition of Edna McNeill at 25. By parking in the designated lot and utilizing the sidewalk, plaintiff estimated she would have had to carry her groceries a distance of 75 feet, which plaintiff characterized as “inconvenient.” Id. at 20, 24.

Plaintiff decided to first take her purse into the apartment before carrying the groceries inside. She crossed the grassy area without incident, dropped her purse on the apartment steps, and set out back to her car. Plaintiff walked across the grass without looking at the ground, although she was aware of the area being muddy and covered with wet leaves. Id. at 22-23. As plaintiff reached the point of the grass which sloped down to her car, she suddenly fell, breaking her left ankle. Plaintiff admits that she did not see what caused her fall, but nonetheless places the blame upon an exposed root near a tree by which plaintiff had passed. Id. at 24.

On January 14, 1994, plaintiff brought suit against defendants, alleging that their negligence in maintaining the area and/or failing to warn of the danger caused her injuries. Defendant filed a motion for summary judgment on May 23, 1995, which the court granted by orders of November 1 and November 13, 1995. This appeal followed.

DISCUSSION

Summary judgment is appropriate in matters which are free and clear from doubt and in which there are no genuine issues of material fact. Santillo v. Reedel, 430 Pa. Super. 290, 294, 634 A.2d 264, 266 (1993). On a motion for summary judgment, the record must be viewed in a light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the mov[534]*534ing party. McConnaughey v. Building Components Inc., 536 Pa. 95, 98, 637 A.2d 1331, 1333 (1994). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Banks v. Trustees of University of Pennsylvania, 446 Pa. Super. 99, 103, 666 A.2d 329, 331 (1995).

To establish a case in negligence, a plaintiff must prove (1) the existence of a duty or obligation recognized by law, (2) a breach of that duty by defendant, (3) a causal connection between defendant’s breach of duty and plaintiff’s resulting injury, and (4) actual loss or damage suffered by plaintiff. Reilly v. Tiergarten Inc., 430 Pa. Super. 10, 14, 633 A.2d 208, 210 (1993), appeal denied, 538 Pa. 673, 649 A.2d 674 (1994). Here, plaintiff has failed to demonstrate the existence of a duty on the part of defendants to repair and/or warn plaintiff of the condition of the lawn. Further, plaintiff is unaware of the actual cause of her injury, and the circumstances indicate numerous possibilities for the cause of plaintiff’s fall. For these reasons, the entry of summary judgment was appropriate.

In Gilligan v. Villanova University, 401 Pa. Super. 113, 584 A.2d 1005 (1991), the Superior Court considered a factual situation similar to the instant case. In Gilligan, a plaintiff was injured when, in poor weather conditions, he elected not to take the indirect sidewalk route to his destination, but rather chose to traverse a more direct grassy path. Id. at 115, 584 A.2d at 1006. Due to snowy conditions and the uneven lay of the land, the footing in the grassy area was uncertain, and plaintiff fell and was injured. Id. In affirming the trial court’s entry of nonsuit, the Superior Court emphasized [535]*535the existence of the alternate, paved route. Id. at 118, 584 A.2d at 1008. The Superior Court further noted that plaintiff offered no evidence that this sidewalk route was improperly maintained, nor did plaintiff offer any expert testimony to establish a duty of defendant to provide a sidewalk in the area where plaintiff fell. Id. In conclusion, the court stated:

“[Plaintiff] has merely established that he voluntarily chose to walk upon an allegedly snow-covered grassy area, not intended to be traversed by pedestrians, and subsequently fell. On these facts, we agree with the trial court that appellant has failed to state a cause of action in negligence.” Id.

In this case, plaintiff admitted that defendants provided her with a sidewalk connecting her designated parking area with her apartment. Plaintiff did not contend that this sidewalk was improperly maintained or inadequate. In fact, plaintiff normally traveled on the sidewalk in going to and from her car. On the day in question, however, plaintiff chose to park illegally and walk a more direct route, across the grass, to her apartment. Plaintiff chose this path only out of convenience: it was raining, she had a number of packages to carry inside and the path across the grass would save her 60 feet of walking. The area that plaintiff chose to traverse was muddy, covered in wet leaves and sloped. Further, the area had exposed roots from an old tree. Under these circumstances, the court determined, as did the Superior Court in Gilligan, that plaintiff failed to set forth a cause of action in negligence.

Plaintiff makes much of her status as a business invitee in decrying the court’s entry of summary judgment. According to plaintiff, defendants owed her the duty of covering every exposed root on the grounds and/or posting warning signs in every grassy area which per[536]*536sons might be tempted to traverse in lieu of the provided sidewalks. The court disagrees. A possessor of land owes an invitee the duty to protect the invitee from foreseeable harm. Banks, supra at 104, 666 A.2d at 331.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gilligan v. Villanova University
584 A.2d 1005 (Superior Court of Pennsylvania, 1991)
McConnaughey v. Building Components, Inc.
637 A.2d 1331 (Supreme Court of Pennsylvania, 1994)
Carrender v. Fitterer
469 A.2d 120 (Supreme Court of Pennsylvania, 1983)
Reilly v. Tiergarten Inc.
633 A.2d 208 (Superior Court of Pennsylvania, 1993)
Orner v. Mallick
639 A.2d 491 (Superior Court of Pennsylvania, 1994)
Santillo v. Reedel
634 A.2d 264 (Superior Court of Pennsylvania, 1993)
Banks v. TRUSTEES OF UNIV. OF PENN.
666 A.2d 329 (Superior Court of Pennsylvania, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
28 Pa. D. & C.4th 531, 1996 Pa. Dist. & Cnty. Dec. LEXIS 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcneill-v-ginsberg-pactcomplmontgo-1996.