Touchette v. Weis Markets, Inc.

23 Pa. D. & C.5th 321
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedMarch 3, 2011
DocketNo. 6358 CIVIL 2008
StatusPublished

This text of 23 Pa. D. & C.5th 321 (Touchette v. Weis Markets, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Touchette v. Weis Markets, Inc., 23 Pa. D. & C.5th 321 (Pa. Super. Ct. 2011).

Opinion

WORTHINGTON, J,

This matter comes before the court on Mary and Kevin Touchette’s (hereinafter “plaintiffs”) appeal of our order dated December 8, 2010 granting the defendants’ motion for summary judgment. The procedural history of the case is summarized as follows:

On July 7,2008, the plaintiffs filed a complaint against Weis Markets Inc., T/A Mr. Z’s Supermarket (hereinafter “Weis”) after Ms. Touchette sustained injuries following a slip and fall in the parking lot area on February 3, 2008.

On July 30, 2008, Weis filed its answer to plaintiffs’ complaint claiming that it is a tenant in a limited part of the property and had no responsibility for or right to control the area of the property where Ms. Touchette fell.

On August 28, 2008, the plaintiffs filed an amended complaint adding Mount Pocono Retail, LLC (hereinafter [323]*323“MPR”) as a defendant in the matter. MPR is the lessor of the property where the fall occurred. On September 5, 2008, Weis filed its answer to plaintiffs’ amended complaint and a crossclaim against MPR for breach of contract and negligence. On November 13, 2008, MPR filed its answer and new matter/crossclaim to plaintiffs’ amended complaint. On November 30, 2008, MPR filed a praecipe for writ to join additional defendant Grassie & Sons, Inc. Grassie & Sons, Inc. was under contract with MPR for snow removal in the parking lot where the plaintiff fell.

On August 30, 2010, MPR filed a motion for summary judgment, a brief in support and a praecipe for argument. Defendants. Weis and Grassie & Sons, Inc. joined in that motion. Argument on MPR’s motion for summary judgment was scheduled for December 6,2010 and granted on December 8, 2010.

The plaintiffs filed a notice of appeal with the Superior Court on January 3,2011. Accordingly, on January 6,2011, we ordered that the plaintiffs file a statement pursuant to Pa.R.A.P. 1925(b) within 21 days. Said statement was filed by the plaintiffs on January 20, 2011. We now submit this opinion in accordance with Pa.R.A.P. 1925(a).

In their 1925(b) statement, the plaintiffs argue that the trial court committed an error in granting defendants’ motion for summary judgment because there are genuine issues of material fact that exist on liability, namely: 1) Weis and MPR, in their hiring of Grassie & Sons, Inc. to remove snow from the parking lot, created the dangerous, transitoiy condition that lead to Ms. Touchette’s fall; 2) [324]*324Weis and MPR were the owners of the parking lot, in possession and control of it, should have known of the dangerous, transitory condition and should have taken steps to prevent the accumulation of snow and ice; 3) plaintiff did not assume the risk of injury and whether she knew of the existence of the risk or fully appreciated the magnitude of that risk is a question of fact to be determined by a jury; and 4) the defendants had a duty to protect Ms. Touchette from the risk of harm that she might fall.

Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroversial allegations in the pleadings, depositions, answers to interrogatories, admissions of record and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. Barnish v. KWI Building Company, 916 A.2d 642, 645 (Pa. Super. 2007).

Oral testimony alone, either through testimonial [325]*325affidavits or depositions, of the moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact. Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A.2d 523 (1932). Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 585-86, 812 A.2d 1218, 1221-22 (Pa. 2002).

In its motion for summary judgment, the defendants claim that they owed no duty to the plaintiffs because the plaintiffs assumed the risk of injury from a known and avoidable danger. As such, they claim that there are no genuine issues of material fact as to this necessary element of a negligence claim and that, summary judgment should be granted.

It is axiomatic that in order to maintain a negligence action, the plaintiff must show that the defendant had a duty “to conform to a certain standard of conduct;” that the defendant breached that duty; that such breach caused the injury in question; and actual loss or damage. Phillips v. Cricket Lighters, 576 Pa. 644, 658, 841 A.2d 1000, 1008 (2003).

In applying the above test to the instant matter, we remain cognizant of the fact that we are reviewing the entry of summary judgment on this claim. Id. at 1009. Thus, as noted supra, we are directed to view the record “in the light most favorable to the non-moving party. All doubts as to the existence of a genuine issue of material fact must [326]*326be resolved against the moving party.” Kanfando, 764 A.2d 59, 61.

The standard of care a possessor of land owes to one who enters upon the land depends upon whether the person entering is a trespasser, a licensee or invitee. Carrender v. Fritterer, 503 Pa. 178, 184, 469 A.2d 120, 123 (1983). In this case, it is undisputed that Ms. Touchette was a business invitee of Weis Markets Inc. Pennsylvania law as to premises liability regarding an invitee was set forth by our Supreme Court in Carrender, as follows:

Possessors of land owe a duty to protect invitees from foreseeable harm. Restatement, supra, §§ 341 A, 343 & 343A. With respect to conditions on the land which are known to or discoverable by the possessor, the possessor is subject to liability only if he,
“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” Carrender, 503 Pa.

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Related

Howell v. Clyde
620 A.2d 1107 (Supreme Court of Pennsylvania, 1993)
Kafando v. Erie Ceramic Arts Co.
764 A.2d 59 (Superior Court of Pennsylvania, 2000)
Phillips v. Cricket Lighters
841 A.2d 1000 (Supreme Court of Pennsylvania, 2003)
Carrender v. Fitterer
469 A.2d 120 (Supreme Court of Pennsylvania, 1983)
Atcovitz v. Gulph Mills Tennis Club, Inc.
812 A.2d 1218 (Supreme Court of Pennsylvania, 2002)
Barrett v. Fredavid Builders, Inc.
685 A.2d 129 (Superior Court of Pennsylvania, 1996)
Nanty-Glo Boro. v. American Surety Co.
163 A. 523 (Supreme Court of Pennsylvania, 1932)
Barnish v. Kwi Building Co.
916 A.2d 642 (Superior Court of Pennsylvania, 2007)

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Bluebook (online)
23 Pa. D. & C.5th 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/touchette-v-weis-markets-inc-pactcomplmonroe-2011.