Rozell v. Becker Associates

73 Pa. D. & C.4th 474, 2005 Pa. Dist. & Cnty. Dec. LEXIS 35
CourtPennsylvania Court of Common Pleas, Columbia County
DecidedJune 17, 2005
Docketno. 2003-CV-272
StatusPublished

This text of 73 Pa. D. & C.4th 474 (Rozell v. Becker Associates) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Columbia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rozell v. Becker Associates, 73 Pa. D. & C.4th 474, 2005 Pa. Dist. & Cnty. Dec. LEXIS 35 (Pa. Super. Ct. 2005).

Opinion

JAMES JR., J.,

This matter is before the court to consider defendants’ motion for summary [475]*475judgment and additional defendant’s motion for summary judgment. Plaintiffs filed a complaint against defendants who joined additional defendant (Bower), arising out of an alleged incident on March 5, 2001. The complaint alleges that plaintiff David Rozell slipped and fell on ice in the parking lot of the Berwick Shopping Center, owned by defendant Becker. Additional defendant Bower was joined in the action, it being alleged that Bower was under contract to plow snow from the parking lot and that Bower did so negligently. One major defense is whether the application of the hills and ridges doctrine applies, thus precluding plaintiffs’ recovery.

The alleged facts are that David Rozell was a member of an independent cleaning crew that cleaned the K-Mart store in the defendants’ shopping center. On the days prior to March 5,2001, there had been a snow fall accumulating approximately seven inches.1 The snow allegedly remained in the parking lot on March 5,2001.2 On March 4,2001 (the day before the incident), David Rozell went to K-Mart to clean from 7 a.m. until 9:30 a.m. It was snowing during that time and snowed approximately four inches of accumulation that day.

The next day, March 5, 2001, David Rozell arrived at work at 5 a.m. It was snowing steadily when he arrived at work. He parked his car in the parking lot and walked [476]*476across the snow covered parking lot to the K-Mart store. At about 8 a.m. David Rozell’s boss told him to move his car from where he parked it to an area that had already been plowed. He left the store to move his car. It was still snowing. The snow plows were working to remove snow as he went to move his car. He moved his car to an area that had been plowed. He parked it, stepped out of the car, and fell to the ground on the ice. He saw a glaze of ice that was smooth. He said that the ice was one-half inch to an inch thick around where he fell, although that was an estimate and there was no place where the ice’s thickness could be measured. The ice was smooth. There were no ridges or hills or bumps. He also said that there were other icy spots in the parking lot, and that he almost fell again as he was walking toward the K-Mart store to report his fall. When he left K-Mart two hours later, he had no problem walking to his car. The lot had been salted and cindered, including the area around his car.

There is nothing in the record to show Bower’s activities other than the fact that he was contracted by defendants to remove snow from the parking lot.

For purposes of these summary judgment motions, this court will consider these facts as undisputed.

SUMMARY JUDGMENT STANDARD

The standard for determining whether summary judgment should be granted is set forth in Pa.R.C.P. 1035.2:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
[477]*477“(1) 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, or
“(2) 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.”

“The essence of the revision set forth in new Rule 103 5.2 is that the motion for summary judgment encompasses two concepts: (1) the absence of a dispute as to any material fact and (2) the absence of evidence sufficient to permit a jury to find a fact essential to the cause of action or defense. The former rule was unclear as to whether it encompassed the type of motion which is based upon a record which is insufficient to sustain a prima facie case. New Rule 1035.2(2) is explicit in authorizing such a motion.” Pa.R.C.P. 1035.2, Explanatory comment — 1996.

In determining the merit of a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party. Ward v. Rice, 828 A.2d 1118, 1120 (Pa. Super. 2003). All doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party on motion for summary judgment. Id.

DISCUSSION

The issue is whether the hills and ridges doctrine bars recovery against the landowner and/or the snow removal [478]*478contractor under the undisputed material facts. “The ‘hills and ridges’ doctrine is a long-standing and well entrenched legal principle that protects an owner or occupier of land from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations. . . . The rationale for this doctrine has been explained as follows: ‘. . . to require that one’s walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions in this hemisphere.’ ” Morin v. Traveler’s Rest Motel Inc., 704 A.2d 1085, 1087 (Pa. Super. 1997).

“In order to recover for a fall on an ice or snow covered surface, [plaintiff] must show: ‘(1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.’” Biernacki v. Presque Isle Condominiums Unit Owners Association Inc., 828 A.2d 1114, 1117 (Pa. Super. 2003).

Plaintiff David Rozell’s deposition testimony concerning the character of the ice upon which he fell is very instructive in the analysis of this case. This testimony is undisputed:

“Q (Atty. DeTommaso): Okay. And before you got off of the ground, Dave, did you have an opportunity to look down to see what caused you to fall?
“A (Plaintiff David Rozell): Uh-bum.
[479]*479“Q: Yes?
“A: Yes. Ice.
“Q: And can you describe what you saw and where it was in relation to your car?
“A: It was like this (pointing to cup). A glaze. Like these cups.
“Q: You are pointing to a plastic—
“A: Like a film.
“Q: And where was it in relation to your car?
“A: All underneath me. It was all ice.
“Q: And you said a glaze?
“A: Yeah.

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Related

Ward v. Rice
828 A.2d 1118 (Superior Court of Pennsylvania, 2003)
Papandrea v. Hartman
507 A.2d 822 (Supreme Court of Pennsylvania, 1986)
Morin v. Traveler's Rest Motel, Inc.
704 A.2d 1085 (Superior Court of Pennsylvania, 1997)
Biernacki v. Presque Isle Condominiums Unit Owners Ass'n.
828 A.2d 1114 (Superior Court of Pennsylvania, 2003)
Cuthbert v. Philadelphia
209 A.2d 261 (Supreme Court of Pennsylvania, 1965)

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Bluebook (online)
73 Pa. D. & C.4th 474, 2005 Pa. Dist. & Cnty. Dec. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rozell-v-becker-associates-pactcomplcolumb-2005.