J-A27033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LORI ANN SIMMONS AND JOHN : IN THE SUPERIOR COURT OF SIMMONS : PENNSYLVANIA : Appellant : : : v. : : : No. 1437 EDA 2018 CROTHALL HEALTHCARE, INC :
Appeal from the Judgment Entered June 12, 2018 In the Court of Common Pleas of Lehigh County Civil Division at No(s): No. 2016-C-0183
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 09, 2019
Lori Ann and John Simmons appeal from the judgment entered against
them in their negligence action against appellee Crothall Healthcare, Inc.
(“Crothall”).1 The Simmons argue that the trial court erred in granting
Crothall’s motion for compulsory nonsuit. We affirm.
The Simmons filed a complaint alleging that Ms. Simmons slipped and
fell on ice in a parking lot of the Lehigh Valley Hospital and fractured her ankle.
They averred that Crothall was the entity responsible for removing snow and
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1 The Simmons prematurely appealed from the April 16, 2018 order of the trial court denying the Simmons’ motion for post-trial relief. We issued a per curiam order directing the Simmons to praecipe the prothonotary of the trial court to enter judgment on the docket. The trial court entered judgment for Crothall on June 12, 2018. We thus treat the appeal as from the entry of judgment, and have amended the caption accordingly. See Pa.R.A.P. 905(a)(5); Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 524 n.1 (Pa.Super. 2006). J-A27033-18
ice from the hospital’s parking lots, and that its negligence in relation to the
removal of snow and ice was the cause of Ms. Simmons’ injury. The Simmons
also set forth a claim for Mr. Simmons’ loss of consortium.
Prior to trial, Crothall filed a motion in limine to preclude the testimony
of the Simmons’ expert meteorologist, Thomas Else, because he was “not
qualified to opine . . . regarding the industry standards and customs in the
field of snow/ice removal and management.” Mot., 10/23/17, at ¶ 19. The
court deferred ruling on the motion until the time of trial. Its order doing so
stated, “if Else is not able to demonstrate he has a level of knowledge of the
industry standard of care for professional snow removal and mitigation of
injury beyond that possessed by the average person, he may be precluded
from offering any expert opinion testimony.” Order, 11/3/17, at 2 n.1. The
order also warned that “[w]ithout any expert opinion testimony on the
relevant standard of care for the snow removal, [the Simmons] may not be
able to establish [the] duty of care owed to [the Simmons] by [Crothall].” Id.
At trial, Ms. Simmons testified that she was cardiac stenographer who
worked at the hospital’s Muhlenberg location. She worked an eight-hour shift
on February 17, 2017, and left the premises at 3:00 p.m. At around 2:00 a.m.
that night, the morning of February 18, she returned to the hospital. She did
not notice any snow or ice in the parking lot at that time, except for a pile of
snow between her car and the car parked in front of hers.
She left work again at 3:00 a.m. Snow had started to fall ten minutes
earlier, and there was a “dusting” of snow on the ground. N.T. (Lori Ann
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Simmons), 11/28/17, at 12, 45-46. She observed a co-worker slip on the
“concrete walkway” to the parking lot, roughly ten feet from the hospital
entrance. Id. at 73-74. Once in the parking lot and approaching her car, Ms.
Simmons also slipped and fell, injuring her ankle. Ms. Simmons testified she
“slid and hit a car, a parked car in front of [her], and fell.” Id. at 13. She was
two or three feet away from her own car at the time she fell. Ms. Simmons
testified she slipped on black ice2 that was covered by the snow. She did not
notice any ice in the parking lot until after she fell and looked underneath her
feet. She did not see any salt on the ice. The Simmons also showed the jury
a surveillance video of the parking lot, depicting Ms. Simmons slip and fall.
The Simmons also presented the testimony of Michael Simmers, an
employee of Crothall. His position for Crothall entails “running the
Housekeeping Department and Grounds Departments.” N.T. (Michael
Simmers), 11/28/17, at 3. Simmers acknowledged that Crothall is the sole
entity responsible for the removal of snow and ice from the hospital’s parking
lot and is in total control of that obligation, pursuant to a contract between
2 Black ice is thin, transparent ice occurring on asphalt. See Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1087 n.1 (Pa.Super. 1997); Tucker v. Bensalem Twp. Sch. Dist., 987 A.2d 198, 201 (Pa.Cmwlth. 2009).
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the hospital and Crothall.3 No written contract was introduced at trial, and
there was no testimony regarding specific contract terms.
Simmers testified that the hospital operates 24 hours a day. When there
is inclement weather, Simmers inspects the parking lot around 5:00 a.m., and
then again periodically throughout the day. He stated he would have made his
final inspection before the accident at approximately 4:00 p.m. on February
17, before leaving for the day.
Simmers stated that in the event of a snowfall, the hospital security
team would typically contact Crothall, and Crothall would contact Rogerio
3 Simmers testified as follows:
[The Simmons’ attorney:] So, generally, Crothall is responsible for ice removal at the Muhlenberg Lehigh Valley Hospital; correct?
[Simmers:] Yes.
[The Simmons’ attorney:] Okay. And that would include all the parking lots as well; correct?
[The Simmons’ attorney:] And that’s pursuant to a contract []between Lehigh Valley Hospital and Crothall Healthcare, Inc.; correct?
[The Simmons’ attorney:] So, Lehigh Valley Hospital does not perform any of its own ice removal; correct?
[Simmers:] We do [it] for them, yes.
N.T. (Simmers) at 6-7.
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Trucking (“Rogerio”), with whom Crothall sub-contracted the plowing of the
parking lot. According to Crothall’s agreement with Rogerio, Rogerio had 90
minutes to respond to a call for snow removal.4 Simmers confirmed that
Rogerio has a contract with Crothall, not with the hospital, and that Rogerio
“has no independent responsibility to show up and perform ice removal at the
hospital.” Id. at 8-9.
Simmers testified that Rogerio does not remove snow between or close
to parked cars, for fear of causing damage, and stated that Rogerio removes
snow up to six inches from parked cars. Simmers testified that he understands
that when snow “is left piled in a parking lot . . . and the temperature rises,
[it] would melt into water and then at night when the temperature drops would
freeze into ice.” Id. at 15. He also confirmed he understands that water from
melted snow would “leach into other areas of the parking lot” and freeze, and
stated, “That’s why we salt.” Id. He testified that if he saw that snow had
melted and refrozen into ice, he would call Rogerio “to remediate.” Id. at 15,
17. The Simmons did not question Simmers regarding Rogerio’s salting
procedures. However, Simmers testified that after a storm, Crothall would ____________________________________________
4 Regarding the agreement between Crothall and Rogerio, Simmers testified:
When it snows – there’s a couple different ways we’re notified, one of them being if a snowstorm begins that wasn’t expected, the hospital security calls, we call them. They have, like, 90 minutes to be – to make it to campus, and then they do snow removal for us when the storm’s over. Then, we inspect and decide where we’re going to go from there.
N.T. (Simmers) at 8.
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“have [Rogerio] trucks on site most nights treating and removing snow. I think
-- through the records, I was able to look at -- we did have trucks [the]
evening [of the 17th]. In fact, I think we had them on site every day from the
12th on.” Id. at 17.
The Simmons introduced the testimony of Else, whom they offered as
“an expert in the field of meteorology and snow and ice removal.” N.T.
(Thomas Else), 11/29/17, at 6. Crothall objected to Else’s qualifications as an
expert in snow and ice removal. The Simmons clarified that they would present
Else as an expert in “snow and ice” “[a]s part of meteorology,” and Crothall
agreed to that limitation.
Else then testified about weather conditions around the time of Ms.
Simmons’ fall. He said that snowstorms had left untreated ground in the area
of the hospital covered with 22 inches of snow. While temperatures remained
below freezing on the day in question, the day was sunny, and the hospital’s
parking lot was completely exposed to the sun. Else stated that sunlight
“would have resulted in runoff [snowmelt] water generated in the parking lot,”
and, after sunset around 5:30 p.m., “[a]ny residual [snowmelt] water and
leftover slush, which was not properly treated with a deicer, quickly refroze
into solid ice.” Id. at 16. Else also testified that the National Weather Service
had issued a winter weather advisory on the day in question, as snow was
expected to begin again at 3:00 a.m. on the morning of February 18, i.e., the
time of Ms. Simmons’ fall. Else confirmed that dry, powdery snow did begin
to fall around that time, which immediately accumulated on the ground. He
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characterized it as a “dusting” less than 0.10 inches deep, and opined that the
new snowfall would have covered any residual ice, and that Ms. Simmons
would have slipped on the ice, and not the powdery snow.
The Simmons also asked Else to testify about the information he would
provide to snow removal companies regarding weather conditions. Crothall
objected. The court overruled the objection, but clarified that Else was not to
testify regarding snow removal procedures. The Simmons asked Else whether
ice would have been present throughout the parking lot, and the court
sustained Crothall’s objection to that question.
At the close of the Simmons’ evidence, Crothall moved for a compulsory
nonsuit. As relevant here, Crothall argued that there was no evidence that its
snow removal procedures fell below the appropriate standard of care. Crothall
explained that there was no evidence of the standard of care, as the Simmons
did not introduce either the terms of the contract between the hospital and
Crothall or expert testimony regarding professional standards within the snow
removal industry. Thus, there was no basis on which the jury could conclude
that Crothall’s snow removal procedures were inadequate.
The court granted the compulsory nonsuit. The court found “that the
evidence lacks any demonstration or testimony regarding the duty that was
owed to [Ms.] Simmons by [Crothall] to take measures to avoid the slippery
condition from existing at this time,” and that there was no evidence of “a
professional standard within the business of snow removal . . . to apply agents
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which would prevent the accumulation of ice either before or after the snowfall
began based upon the weather conditions[.]” N.T. (Motion), 11/29/17, at 20.
The Simmons filed a motion for post-trial relief, arguing that the court
erred in finding that they had not presented evidence that Crothall had a duty
to remove the snow and ice at issue. The court denied relief. The court
authored a contemporaneous opinion in which it reviewed both Sections 323
and 324A5 of Restatement (Second) of Torts, and concluded that the Simmons
failed to present sufficient evidence to establish a legal duty. The court also
concluded that there was no testimony “that the duty entailed an obligation
to undertake any specific remedial acts,” such as treating refrozen ice “within
a designated timeframe after a nighttime refreeze,” removing the ice and
snow from closer proximity to the parked vehicles, or inspecting the lot after
sunset. Am. Mem. Op., 4/16/18, at 12-13. The court pointed out that the
contract was not introduced as evidence of specific snow removal or inspection
requirements.
The Simmons appealed, and raise the following issues:
1. Did the [Simmons] establish [prima facie] evidence that [Crothall] owed a duty to the [Simmons]?
2. Did [Crothall] have notice of the [d]angerous [c]ondition?
3. W[ere the Simmons] required to present expert witness testimony in order to establish [Crothall’s] standard of care? ____________________________________________
5 As discussed further below, Section 324 imposes “liability to third person[s] for negligent performance of undertaking,” and is the corollary to Section 323 applicable when the harm is suffered by a third person. Restatement (Second) of Torts § 324A (1965), comment a.
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4. Was [Crothall’s] Motion for Compulsory Nonsuit properly granted?
The Simmons’ Br. at 4 (answers below omitted).
We review the grant of a motion for nonsuit for an abuse of discretion
or an error of law. Harvey, 901 A.2d at 526. “A nonsuit is proper only if the
jury, viewing the evidence and all reasonable inferences arising from it in the
light most favorable to the plaintiff, could not reasonably conclude that the
elements of the cause of action had been established.” Id. (quoting Brinich
v. Jencka, 757 A.2d 388, 402 (Pa.Super. 2000)).
In their first issue, the Simmons argue that they set forth prima facie
evidence of Crothall’s duty to the Simmons to remove snow and ice in the
parking lot. The Simmons point to Simmers’ testimony admitting that Crothall
was responsible for any and all removal of ice on the property, pursuant to a
contract; that the hospital was open 24 hours a day; and that it was Simmers’
responsibility perform inspections to look for ice. The Simmons’ Br. at 13-15,
17-18.
“To demonstrate negligence, a plaintiff must establish that the
defendant owed a duty of care to the plaintiff, that duty was breached, the
breach resulted in the plaintiff’s injury, and the plaintiff suffered an actual loss
or damages.” Kinney-Lindstrom v. Med. Care Availability & Reduction
of Error Fund, 73 A.3d 543, 563 n.17 (Pa. 2013). “The primary element in
any negligence cause of action is that the defendant owes a duty of care to
the plaintiff.” Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866
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A.2d 270, 280 (Pa. 2005) (quoting Althaus ex rel. Althaus v. Cohen, 756
A.2d 1166, 1168 (Pa. 2000)). Duty is “an obligation, to which the law will give
recognition and effect, to conform to a particular standard of conduct toward
another.” Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1222
(Pa. 2002). Whether a duty exists in any given set of circumstances is a
question of law. Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214,
222 (Pa. 2018).
A landowner owes a duty to exercise reasonable care to keep its land
safe for business invitees,6 provided certain circumstances are met, such as
that the unreasonable risk of danger is foreseeable by the landowner, and the
risk is not the sort obvious to an invitee. Restatement (Second) of Torts §
343; Farabaugh v. Pa. Tpk. Comm’n, 911 A.2d 1264, 1272 (Pa. 2006).
Section 324A of Restatement (Second) of Torts states that liability can
arise from the negligent performance of an undertaking:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
6 An employee is a “business invitee.” Gutteridge v. A.P. Green Servs., Inc., 804 A.2d 643, 655-56 (Pa.Super. 2002).
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(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A. The Pennsylvania Supreme Court has
held that Section 324A sets forth a correct statement of Pennsylvania law.
See Scampone v. Grane Healthcare Co., 169 A.3d 600, 619 (Pa.Super.
2017), appeal denied, 188 A.3d 387 (Pa. 2018), and 188 A.3d 388 (Pa. 2018).
Thus, pursuant to Section 324A, an entity that assumes a landowner’s
responsibility to remove snow and ice from its roads and walkways has a duty
toward invitees to exercise reasonable care in that undertaking. See
Hoffmaster v. Cty. of Allegheny, 550 A.2d 1023, 1026 (Pa.Cmwlth. 1988)
(holding township that had assumed county’s responsibility to remove snow
and ice from county roads pursuant to a contract could be held liable for
negligence under Section 324A);7 cf. Barnes v. Alcoa, Inc., 145 A.3d 730,
737 (Pa.Super. 2016) (finding no evidence that defendant was liable for snow
removal under Section 324A when testimony established that defendant’s
subsidiary company, not defendant, had undertaken removal of snow and ice
from parking lot).
Here, the Simmons presented uncontradicted evidence that Crothall
undertook the hospital’s duty to its invitees to remove snow and ice in the
parking lot. Therefore, under Section 324A, Crothall owed a duty to exercise
reasonable care in performing snow and ice removal. To the extent that the ____________________________________________
7Although decisions of the Commonwealth Court are not binding on this court, we may consider them as persuasive authority. Beaston v. Ebersole, 986 A.2d 876, 881 (Pa.Super. 2009).
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trial court held otherwise, it erred. However, it did not err in holding that the
Simmons failed to introduce sufficient evidence that Crothall had breached
that duty.
The Simmons maintain that they introduced sufficient evidence to
establish a breach because they presented evidence that Crothall had notice
of the dangerous, slippery condition but negligently failed to remedy it. They
argue that Crothall left snow between parked cars in the lot for three days,
this snow melted and reformed into ice, and that they demonstrated Crothall
had constructive notice that the slippery conditions would have persisted since
sunset, approximately ten hours before Ms. Simmons fell. The Simmons
further argue that the court erred in requiring them to introduce expert
testimony regarding a professional standard of conduct, or evidence that
“refrozen ice [should] be treated within a designated timeframe” to establish
what a reasonable snow removal company would do when on notice of a
dangerous condition. The Simmons’ Br. at 18-19, 34.
To prevail on a negligence claim, “[t]he plaintiff has the burden of
establishing, by a preponderance of the evidence, that the defendant engaged
in conduct that deviated from the general standard of care expected under
the circumstances, and that this deviation proximately caused actual harm.”
Walters, 187 A.3d at 221 (quoting Martin v. Evans, 711 A.2d 458, 462 (Pa.
1998)). Although whether a defendant has breached its duty is a factual
question for the jury, a plaintiff must set forth evidence of general standard
of expected care and evidence of the defendant’s nonconforming conduct. See
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Schentzel v. Philadelphia Nat. League Club, 96 A.2d 181, 185 (Pa.Super.
1953); accord Iervolino v. Pittsburgh Athletic Co., 243 A.2d 490, 491-92
(Pa.Super. 1968). Industry standards of care are not controlling, but are “to
be considered as factors of measurement of due care.” Schentzel, 96 A.2d at
185. Lay testimony alone can be sufficient to raise a question of fact that a
defendant was negligent for failing to apply salt or other deicing agents to
parking lots. See, e.g, Ferencz v. Milie, 535 A.2d 59, 64 (Pa. 1987);
Harvey, 901 A.2d at 527-28; Tucker, 987 A.2d at 201. However, a jury may
not be permitted to speculate that the defendant was negligent absent some
reference to reasonable actions the defendant failed to take. Schentzel, 96
A.2d at 185.
Here, the Simmons did not introduce any evidence that Crothall’s
actions fell short of a reasonable standard of care. The only testimony
establishing a standard of care came from Simmers, who testified regarding
Crothall’s general procedure of contacting Rogerio in the event of a snowfall
or when snow melted and refroze in the parking lot. He testified that Rogerio
undertook steps to remediate snow and ice on the evening of the 17th and
the prior six evenings. The Simmons did not introduce the terms of the
contract between the hospital and Crothall as evidence that Crothall failed to
adhere to the standard of care set therein. Nor did the Simmons introduce
testimony establishing industry standards of snow removal to establish that
Crothall fell short of those standards. While the contract terms and industry
standards would not have been determinative, the Simmons also did not
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introduce any testimony addressing alternative snow and ice removal
techniques to evince that Crothall unreasonably failed to employ those
techniques, or any evidence of alternative course of action that Crothall should
have taken. Without this evidence, the jury would have been unable to
conclude that Crothall failed to exercise reasonable care in fulfilling its duty.
Schentzel, 96 A.2d at 185. To the extent the Simmons rely on Ms. Simmons’
cursory testimony that the lot appeared unsalted at the time of her fall, that
testimony falls woefully short of setting forth a standard of care and
establishing that Crothall breached that standard. See Beck v. Holly Tree
Homeowners Ass’n, 689 F.Supp.2d 756, 765-66 (E.D. Pa. 2010) (concluding
plaintiff provided insufficient evidence to create factual dispute whether
defendant could have done something to prevent black ice, such as “apply the
right type or proper amount of deicing material”).8
The trial court did not err in concluding that the Simmons failed to
submit sufficient evidence that Crothall breached the standard of care, and
therefore properly granted a compulsory nonsuit. Because we hold nonsuit
was proper for this reason, we do not address the Simmons’ other arguments.
Judgment affirmed.
8As with decisions of the Commonwealth Court, we are not bound by decisions of the lower federal courts, but may find them persuasive. Martin v. Hale Prod., Inc., 699 A.2d 1283, 1287 (Pa.Super. 1997).
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/9/19
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