Brown, A. v. Kinser B604, LLC
1633 EDA 2016
| Pa. Super. Ct. | Oct 21, 2016Background
- Plaintiff Antoinette Brown slipped on ice-covered exterior steps of a rental row home at 604 Carlton St., Bethlehem, on February 17, 2014, after visiting a tenant-operated salon and suffered serious injuries.
- Property owner Kinser B604, LLC filed joinder complaint adding tenants Allen Vernal and Edwanda Shepherd; Kinser pleaded contribution/indemnification and asserted it was out-of-possession.
- Brown moved for partial summary judgment against the defendants relying on Bethlehem ordinance Article 721 (24-hour snow/ice removal) and the Restatement (Second) of Torts (lessor liability).
- Vernal and Shepherd moved for summary judgment asserting Brown admitted in deposition she knew the steps were icy, used the banister earlier, but descended at the time of the fall without holding the railing — invoking the assumption-of-risk defense.
- Kinser moved for summary judgment asserting it was a landlord out of possession (tenant responsible under lease) and, alternatively, reliance on Brown’s deposition regarding assumption of risk.
- The trial court denied Brown’s partial motion and granted summary judgment for Kinser, Vernal and Shepherd; the Superior Court affirmed, emphasizing Brown’s deposition admissions and waiver of certain appellate arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Liability of property owner under local ordinance and landlord duties | Brown: Kinser responsible because no written lease assigning snow/ice duty and Bethlehem ordinance imposes 24-hour removal duty on owner/controller | Kinser: landlord out of possession; tenants retained control/maintenance duties under lease/extension; thus Kinser not liable | Court: Kinser was a landlord out of possession; no tort liability as matter of law; summary judgment for Kinser affirmed |
| 2. Tenants' liability under negligence for ice on steps | Brown: genuine issue of fact as to lighting/darkness and prior knowledge of hazard (first time in dark) | Vernal & Shepherd: Brown admitted she saw and knew the steps were icy earlier the same day and voluntarily descended without using the banister — assumption of risk bars recovery | Court: Brown admitted the hazard was known/obvious and voluntarily encountered it; assumption of risk applies; summary judgment for tenants affirmed |
| 3. Whether deposition testimony created a triable issue re: visibility/novelty of hazard at time of fall | Brown: argued later-on-appeal that hazard was not present in daylight and was first encountered in dark without porch light | Defendants: relied on Brown’s deposition admissions that she saw thick ice both on arrival and upon return; Brown failed to raise the daylight/darkness factual dispute below | Court: argument not raised in opposition to summary judgment below is waived; record shows Brown knew of the icy steps — no genuine issue of material fact |
| 4. Procedural timeliness of tenants’ summary judgment motion | Brown: contended the tenants’ motion was untimely under the scheduling order | Tenants: motion was timely presented to argument list and briefs timely filed | Court: motion was not untimely; no prejudice shown; considered merits and granted summary judgment |
Key Cases Cited
- Truax v. Roulhac, 126 A.3d 991 (Pa. Super. 2015) (summary judgment standard and appellate review explained)
- Lineberger v. Wyeth, 894 A.2d 141 (Pa. Super. 2006) (Borough of Nanty–Glo rule on reliance on oral testimony and admissions for summary judgment)
- Borough of Nanty–Glo v. American Surety Co. of New York, 163 A. 523 (Pa. 1932) (rule limiting summary judgment based solely on oral testimony except when admissions by opposing party support the motion)