Summary Judgment Affirmed in Black Ice Case Where Plaintiff Could Not Confirm That She Was Caused To Fall By Ice

In a decision marked "Non-precedential" [Why mark any decision non-precedential?!] in the case of Bywater v. Conemugh Mem. Med. Ctr., No. 1072 WDA 2023 (Pa. Super. Aug. 5, 2024 Kunselman, J., Murray, J., and McLaughlin, J.) (Op. by Kunselman, J.), the Pennsylvania Superior Court addressed the liability of a Defendant landowner in a black ice case.

According to the Opinion, at the time of the incident, in a medical center’s parking lot, the Plaintiff slipped and fell against her car when she stepped out of her vehicle. The Plaintiff then perceived that her clothes were wet. However, at her deposition, she did not testify that she saw or felt any ice in the area where she allegedly slipped.

According to the Opinion, no precipitation had recently fallen. There was snow on the ground and the sidewalks were salted. Temperatures had remained below freezing during the week leading up to the incident.

The reproduced record before the Court revealed that, at her deposition, the Plaintiff stated that she looked around and “there was nothing there.” As to why she believed that ice was involved, the Plaintiff stated that, “...[b]ecause you can’t see black ice. Why else would I fall?”

The Superior Court affirmed the entry of summary judgment in favor of the Defendant landowner given that the case established that the Plaintiff only assumed that she slipped on ice, which she never actually saw or detected.

The appellate court also noted that there was no other witness to confirm whether or not any black ice was involved in the incident.

The Pennsylvania Superior Court in affirming summary judgment noted that, “[s]imply stated if [the Plaintiff] could not see the ice that she allegedly fell upon, neither could anyone working for the medical center. If the medical center’s staff could not see the ice, then the medical center neither knew nor should have known that a dangerous, icy condition existed in its parking lot on the morning [the Plaintiff’s] fall.”

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Walt McClatchy of McClatchy Law in Philadelphia for bringing this case to my attention.

Source of image:  Photo by Egor Kamelev on www.pexels.com.

Trial Court Judge Rules That Hills and Ridges Doctrine Does Not Apply To Falls That Occur under an Awning

In the case of Johnson v. Harris-Dent, No. 23-00,097 (C.P. Lyc. Co. July 8, 2024 Linhardt, J.), the court denied a Motion for Summary Judgment in a slip and fall case that occurred during a winter storm event.  The Plaintiff allegedly slipped on alleged black ice that was allegedly located on the top step of a homeowner's porch that was covered by an awning.

The court denied the motion based upon issues of fact. More specifically, the court noted that the Plaintiff had cited to the case of Heasley v. Carter Lumber, 843 A.2d 1274 (Pa. Super. 2004) for the proposition that the hills and ridges doctrine is not applicable where the incident occurred in an area that was covered by a roof or awning.

Judge Lindhart noted that, in the Heasley case, the Plaintiff’s slip and fall occurred while the Plaintiff was walking in a shed that had three walls, with the fourth side open, and an overhead roof with an awning extending from it. In that case, the Pennsylvania Superior Court held that the hills and ridges doctrine did not apply to a fall occurring inside an outdoor storage shed. 

In the Heasley case, the court reasoned that the hills and ridges doctrine was intended to protect property owners from an undue burden of ensuring that open spaces such as sidewalks and parking lots are constantly kept clear of snow and ice.  The court in Heasley found that the Defendant did not present anything that demonstrated that, keeping a structure, which is only partially open to the elements, free of snow and ice presented any burden at all, let alone an undue burden on its owners. The Heasley court also indicated that the extension of the hills and ridges doctrine to structures and/or other partially opened areas would raise many difficult questions. As such, the Pennsylvania Superior Court in the Heasley case declined to extend the application of the hills and ridges doctrine to an incident that occurred in a structure covered by a roof and/or an awning.

Judge Linhardt applied the Heasley case to this Johnson case in which the Plaintiff alleged that he fell on the top step of the Defendant’s covered porch which step was allegedly covered by an awning and on which was allegedly some black ice. Judge Linhardt noted that, under the current status of Pennsylvania law, if that allegation is proven, then it appeared that the hills and ridges doctrine would not be applicable to this litigation.

The court found that genuine issues of material fact must be resolved by the jury in this regard and that, therefore, the Motion for Summary Judgment was denied.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Jay Wennington on www.unspash.com.

Summary Judgment Denied in an Alleged Black Ice Slip and Fall Case

In the case of Hicks v. DEPG Stroud Associates, No. 0807-CV-2021 (C.P. Monroe Co. April 2, 2024 Williamson, J.), the court denied a Motion for Summary Judgment in a “black ice” slip and fall case.

According to the Opinion, the Plaintiff pursued this slip and fall litigation against a shopping center owner and its snow removal contractor.

According to the Opinion, it had snowed in the area three (3) days before the incident. The weather on the day of the incident was clear. The record before the court indicated that the snow removal contractor had completed snow removal efforts on the day of the last storm but had not returned to the site as of the day of the incident.

The Plaintiff allegedly slipped and fell on a localized patch of black ice that was near a large snow mound that had been plowed into a parking spot. The Plaintiff sustained a primary injury of a broken wrist that required a surgical repair and other treatment.

The Defendants filed a Motion for Summary Judgment asserting that the Defendant was unable to establish that anyone had constructive notice of an alleged transient, isolated patch of black ice. 

The snow removal contractor additionally asserted that there was no causal connection between their work and the Plaintiff’s injuries. 

Judge Williamson noted that, while at first glance, it would appear that the Plaintiff fell on a localized patch of ice that was transient in nature, the deposition of the snow removal contractor’s employee was found to have “complicate[] a seemingly simple matter.” 

The court noted that the contract between the snow removal contractor and the shopping center required that the snow shall be plowed in a workman like manner from all paved areas. 

Accordingly, the court noted that it appeared that the snow removal contractor may have failed to abide by its contractual duties by piling the snow in a paved parking area/parking space. The court pointed to testimony from a representative of the shopping center who testified that it was not appropriate for the snow removal contractor to have piled snow in parking spots. It was also indicated by that representative that the snow removal contractor was never directed to, and never sought permission to, plow snow in the parking spaces. According to that representative, the snow should have instead been plowed into a grassy area outside of the parking lot.

The court noted that the Plaintiff contended that the location of the snow pile made both Defendants allegedly negligent as they should have known that snow melt and refreezing could be a risk for pedestrians in that location.

Given these material issues of fact, the court denied the Motion for Summary Judgment.

The court also addressed the arguments by both Defendants that they did not have any constructive notice that the black ice was present in the parking lot. Judge Williamson noted that black ice cases are not as easily analogous to other constructive notice cases because black ice conditions are very difficult to see as compared to other conditions. The court additionally noted that, under the applicable law, a landowner has the duty to protect an invitee against known dangers and also those dangers which might be discovered with reasonable care.

In this case, the court noted that both Defendants may have lacked constructive notice of any black ice because neither Defendant was regularly visiting the site at the time the Plaintiff fell.

In this regard it was noted by the Court that the snow removal contractor would only come to the premises on an as needed basis and that the Co-Defendant representatives were only sending an individual to check on the site once or twice a month. 

However, the court emphasized that the large snow pile was left on the parking lot surface in a parking space by the Defendants. The court stated that this snow pile would have been an open and obvious condition near the restaurant. It was also noted that the parking lot was sloped such that the snow melt would likely run into the area where other vehicles parked and pedestrians walked as opposed to the snow being kept in a remote location of the parking lot or separately on grass or dirt where it could be kept safely away from pedestrians walking areas.

The court stated that, as such, the Defendants should have been aware that, during winter months, there is a constant threat of melting and refreezing conditions, and that black ice is not a rare occurrence.

In this case, where the experts differed on what was reasonable under the circumstances, the court noted that there were issues of fact that required the case to go to the jury for this additional reason.

Anyone wishing to review a copy of this decision may click this LINK.

Source:  Photo by Egor Kamelev from www.pexels.com.

Hills and Ridges Doctrine Argument Rejected in Black Ice Case

In the case of Maisonet v. Heidenberg Prop., LLC, No. 5931-CV-2019 (C.P. Monroe Co. Feb. 13, 2023 Zulick, J.), the court denied the Defendants’ Motions for Summary Judgment in a slip and fall case involving black ice.

The Defendants attempted to argue the hills and ridges doctrine.

The Plaintiff presented expert testimony that the slippery condition was caused by a re-freezing of water which created a black ice condition in a pedestrian pathway.

The court found that issues of fact prevented the entry of summary judgment.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 24, 2023).

Source of image:  Photo by Egor Kamelev on www.pexels.com.

Court Rules Hills and Ridges Doctrine Inapplicable

In the case of Dugans v. Concorde West, LLC., No. C-48-CV-2018-00612 (C.P. Northampton Co. Sept. 16, 2019 Roscioli, J.), the court denied a Defendant’s Motion for Summary Judgment in a winter slip and fall event.

According to the Opinion, the Plaintiff was residing an apartment complex when a multi-day snowstorm took place in the area.

On the day after the storm ended, the Plaintiff ventured out and was clearing snow from around his vehicles that were parked on the property. After approximately one (1) hour of this work, the Plaintiff slipped and fell on a patch of ice that remained under a thin layer of snow around his vehicle.

The Plaintiff asserted in his lawsuit that this icy area was created by runoff water from gutters and downspouts on the Defendants’ property, which water was allowed to freeze when salt was not properly applied to the area.

The defense filed a Motion for Summary Judgment relying, in part, on the hills and ridges doctrine and an argument that the alleged condition upon which the Plaintiff fell was an open and obvious condition and that the Plaintiff assumed the risk of injury while walking upon that surface.

In its Opinion, the court reviewed the law of the hills and ridges doctrine and emphasized that that doctrine is only applicable when the ice and snow at issue a result of an entirely natural accumulation.

In this case, the Plaintiff was alleging that the icy condition was caused by human negligence in the form of the gutters and downspouts that were allegedly improperly designed, constructed or maintained and which allowed water runoff to flow directly onto walkways.  As such, the court found that a jury could find that the hills and ridges doctrine did not apply.

The court also rejected the defense argument under the open and obvious doctrine by noting that the Plaintiff testified at his deposition that he could not see the ice and was unable to notice the ice that was under the snow.

Given these issues, the Motion for Summary Judgment filed by the defense was denied.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Linda Schick of the Doylestown, PA law firm of Naftulin & Shick for bringing this case to my attention and I send thanks to Attorney Edward Shaughnessy of Shaughnessy Law Office in Easton, PA for providing me with a copy of the same.

Judge Gelb of Luzerne County Enters Summary Judgment in Black Ice Slip and Fall Case

In the case of Sterba v. North End Heritage Parking Co-Ops, LLC, No. 2017-074 (C.P. Luz. Co. Sept. 24, 2019 Gelb, J.), the court granted the Motion for Summary Judgment filed by North End Heritage Parking in a slip and fall case involving black ice in a parking lot.

According to the Opinion, snow squalls had occurred earlier in the day of the accident. By the time the Plaintiff got to the parking lot in question later than evening, her car did not skid or encounter any ice or snow. Additionally, the Plaintiff admitted that she did not see any ice or snow on the ground when she got out of her vehicle. 

After slipping and falling, the Plaintiff discovered a patch of black ice under her. She had to slide herself back two (2) arm lengths off of the icy area in order to be able to stand. 

The Plaintiff admitted that she did not know how long the patch of ice was on the parking lot surface before she fell. 

The record otherwise indicated that the snow that had fallen earlier in the day had been plowed and pushed against the back of the lot. 

The record also noted that the patches of black ice were concentrated towards drains in the back of the parking lot as melting snow from earlier in the day had moved towards the drains and the water had refroze. 

After reviewing the current status of Pennsylvania law regarding the duties owed by a possessor of land, the court held that, given that there was no evidence of the length of time in which the icy patches had existed prior to the Plaintiff’s fall, the Plaintiff could not sustain their burden of proof.

In a footnote, Judge Gelb notably indicated that “[i]ce is more akin to a transitory spill than to a semi-permanent condition of land because it can develop suddenly and even melt in a short period of time depending on environmental conditions.” 

In light of this finding, the court stated that it was “inconsequential to the issue of constructive notice that Plaintiff saw the black ice immediately after her fall as no one saw the ice prior to the fall and the duration of its existence in the parking lot cannot be determined on this record.” See fn. 2. 

Anyone wishing to review a copy of this decision may click this LINK

I send thanks to Attorney William P. Cech of the Wilkes-Barre, PA law offices of Robert T. Panowicz & Associates for bringing this case to my attention.