Westerholm v. Berry

45 Pa. D. & C.5th 328
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedDecember 16, 2014
DocketNo. 5550 CV 2011
StatusPublished

This text of 45 Pa. D. & C.5th 328 (Westerholm v. Berry) 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
Westerholm v. Berry, 45 Pa. D. & C.5th 328 (Pa. Super. Ct. 2014).

Opinion

MARK, J.,

This case is before the court on defendant’s motion for summary judgment. For the reasons that follow, we will grant the motion.

Factual and Procedural Background

On June 27, 2011, plaintiff Matthew Westerholm (“plaintiff’) filed a complaint seeking damages for injuries he sustained on defendant Kevin Berry’s property while performing clean-up/maintenance services. In October of 2011, plaintiff filed an amended complaint removing allegations of recklessness against defendant and on November 8, 2011, filed a second amended complaint. Following stipulations entered by counsel for both parties amending defendant’s residential address and the discontinuance of all claims against KMB Plumbing & Electrical, Inc., the parties proceeded to discovery. After completing discovery, defendant moved for summary judgment. Both parties filed briefs and the motion was orally argued. Having heard the parties’ arguments and read their briefs, we are now ready to rule on defendant’s motion.

The basic facts are not in dispute and are clear from the record. On September 28, 2009, plaintiff was hired by defendant to perform some construction work at 2136 Clearview Avenue in Stroudsburg, PA. (PI. Dep. 18:1 — 22:7, June 28, 2012.) Plaintiff testified that when he arrived on defendant’s premises, he was instructed by defendant to clean up around the property while they [331]*331waited for other crewmembers to arrive. (PI. Dep. 24:4-19). Plaintiff alleges defendant instructed him to clean up by taking “[a]nything that was flammable” and placing it inside a bum pile. (Id.) Plaintiff admitted that the bum pile consisted of “basically what [he] was putting in there,” which he approximated to be “[m]aybe two garbage cans full of wood, scrap wood.” (PL Dep. 29:11-23; 31:12-15). Plaintiff alleges defendant told him to grab a gas can and use it to start a fire. (PI. Dep. 28:15-24). Despite knowing that he was dealing with flammable items, plaintiff took a five gallon can of gasoline, poured some into the bum pile, and used a small Bic lighter to ignite the pile. (PI. Dep. 34:23 — 36:11; 36:23-37:4). His actions thus culminated in a “big fire roar” and the burning of his shirt and hoodie. (PI. Dep. 37:5 — 37:21). Plaintiff alleges that he sustained severe bums requiring a hospital stay and lasting physical effects caused by what occurred on defendant’s premises.

Based on these facts, defendant moved for summary judgment alleging that there is no liability on the part of the defendant under the independent contractor standard. In addition, defendant asserts that plaintiff should have been aware of the obvious dangers of lighting a fire using gasoline and thus, defendant should be insulated from liability to plaintiff for any harm he suffered.

Discussion

Summary judgment may be granted under Pa.R.C.P. 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment may be granted [332]*332only in cases where the right is free and clear from doubt. Musser v. Vilsmeier Auction Co. Inc., 562 A.2d 279, 280 (Pa. 1989). The moving party has the burden of proving the nonexistence of any genuine issue of material fact. Thompson, 412 A.2d at 469. The record must be viewed in 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 moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970).

In response to a motion for summary judgment, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). In ruling on a motion for summary judgment, the court may consider the pleadings, depositions, answers to interrogatories, admissions, and supporting affidavits. Pa.R.C.P. 1035.1.

Here, defendant argues that even if defendant instructed plaintiff to create a fire in the burn pile by using gasoline, defendant owed no duty to plaintiff because (1) the alleged dangerous condition on the land was created by plaintiff when he poured the gasoline on the materials; and (2) defendant did not possess any “superior knowledge” that would place him in a better position to appreciate any risk to the plaintiff. Further, there was no reason for defendant to believe the dangerous condition would not be obvious to or discovered by plaintiff and plaintiff himself admitted to knowing that lighting gasoline would start a fire.

In turn, plaintiff argues that defendant had superior knowledge because it was defendant’s pre-existing bum [333]*333pile and the gas cans used to bum the debris were from defendant’s garage. Further, plaintiff alleges he had no prior experience lighting fires with gasoline and the safety hazards associated with it are not the subject of common knowledge.

For the reasons that follow, we find that, under the facts of this case, defendant owed no duty to warn plaintiff of the dangers of lighting gasoline on a pile of flammable debris.

“The mere fact an accident occurred does not entitle the injured person to a verdict.” Gutteridge v. A.P. Green Servs., Inc., 804 A.2d 643, 655 (Pa. Super. 2002). In any case sounding in negligence, a plaintiff must demonstrate: (1) a duty of care; (2) the breach of the duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting to the plaintiff. See R. W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005). The issue of whether the defendant owed a duty of care to the plaintiff is the primary question in a negligence suit. Althaus ex. Rel. Althaus v. Cohen, 756 A.2d 1166, 1168 (Pa. 2000).

Here, the relationship between that of plaintiff and defendant is “that of an owner and occupier of land to an independent contractor, a business invitee.” See Funari v. Valentino, 257 A.2d 259, 260 (Pa. 1969). Possessors of land owe a duty to protect invitees from foreseeable harm. Carrender v. Fitterer, 469 A.2d 120, 124 (Pa. 1983)(citing Restatement (Second) of Torts §§341A, 343, & 343A). Pennsylvania has adopted the Restatement (Second) of Torts §343’s standard for when a landowner owes (and breaches) its duty to an invitee:

[334]*334A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but 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 invitees, and

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Related

Althaus Ex Rel. Althaus v. Cohen
756 A.2d 1166 (Supreme Court of Pennsylvania, 2000)
Thompson Coal Co. v. Pike Coal Co.
412 A.2d 466 (Supreme Court of Pennsylvania, 1979)
Musser v. Vilsmeier Auction Co., Inc.
562 A.2d 279 (Supreme Court of Pennsylvania, 1989)
Carrender v. Fitterer
469 A.2d 120 (Supreme Court of Pennsylvania, 1983)
Funari v. Valentino
257 A.2d 259 (Supreme Court of Pennsylvania, 1969)
Phaff v. Gerner
303 A.2d 826 (Supreme Court of Pennsylvania, 1973)
R.W. v. Manzek
888 A.2d 740 (Supreme Court of Pennsylvania, 2005)
Gutteridge v. A.P. Green Services, Inc.
804 A.2d 643 (Superior Court of Pennsylvania, 2002)
Davis v. Pennzoil Co.
264 A.2d 597 (Supreme Court of Pennsylvania, 1970)

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Bluebook (online)
45 Pa. D. & C.5th 328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westerholm-v-berry-pactcomplmonroe-2014.