Case Information
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ADRIENE HITCHNER IN THE SUPERIOR COURT OF
PENNSYLVANIA Appellant
v.
ELEANORE BARTELL
Appellee No. MDA 2016 Appeal from the Order Entered December 15, 2015 the Court of Common Pleas of Schuylkill County Civil Division at No(s): S -52 BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J. FILED OCTOBER 24, 2016
MEMORANDUM BY LAZARUS, J.: Adriene Hitchner appeals order of the Court of Common Pleas Schuylkill County, granting Eleanore Bartell's motion for summary dismissing Hitchner's complaint with prejudice. Upon careful review, reverse remand for further proceedings.
Hitchner nurse employed Lori's Angels home health care In the course her employment, regularly provided services. home health care services to mother, who lived together at 333 Nichols Street Pottsville. On May 11, after had been working for Bartell over two months, Hitchner fell down front steps of house was leaving to pick up breakfast Bartell. Although the steps were moist from earlier rain mist, Hitchner claims she did not slip due to moisture. Rather, claims were "dilapidated and of uneven height, depth, and width creating an extremely dangerous condition[.]" Complaint, ¶ 7.
On April 14, 2014, Hitchner filed a complaint against Bartell, alleging negligence in connection with the maintenance of the steps. After the pleadings were closed, filed a motion for summary judgment, which court granted order dated December 15, 2015. filed a timely notice of appeal on January 2016, followed court -ordered statement of errors complained of appeal pursuant to Pa.R.A.P. 1925(b). raises the following issues for our review:
1. Whether the trial court erred as matter of law by granting [Bartell's] [m]otion [s]ummary [j]udgment based upon finding record contains insufficient evidence of facts as to causation essential [Hitchner's] cause of action to negligence? Whether the erred as matter law by granting
[Bartell's] [m]otion [s]ummary [j]udgment and barring [Hitchner's] negligence claim based condition complained being open and notorious despite the fact that [Hitchner], an employee, had encounter the risk order perform her job? Brief of Appellant, at 5.
We begin by noting our scope standard or review of the grant of summary judgment:
Our review of the court's grant summary judgment plenary. Summary is proper where the pleadings, depositions, answers interrogatories, admissions affidavits other materials show there no genuine issue of material fact moving party entitled as a matter law. We must view record light most favorable opposing party resolve all doubts existence of genuine issue of material fact favor of the nonmoving party. We will reverse the trial court's grant
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J-S47040-16 summary only abuse of discretion or error law.
Cresswell v. End, A.2d 675 (Pa. Super. 2003) (citation omitted). first claims that the trial court erred by granting summary based upon its finding that record contains insufficient The concluded that Hitchner's as causation. deposition testimony did not establish the dilapidated condition of the (1) she stated merely she had caused her to fall because: "slipped" on the concrete, (2) she identify step upon which her fall occurred. Hitchner asserts court inappropriately disregarded the affidavit she submitted her response to Bartell's summary judgment motion she "clarified" her deposition stating "slipped the first /second concrete step (depending on how step defined or whether it qualifies step) which crumbled otherwise gave way under my foot." Plaintiff's Affidavit, 11/2/15 ¶ 3. Hitchner argues produced ample evidence, the form deposition testimony, photographs of the accident site affidavit establish "the extremely poor of the steps, how such condition may have led [her] fall[.]" Brief of Appellant, at Upon review, agree court erred determination regarding causation, even though properly disregarded Hitchner's affidavit.
Generally, state cause of action negligence, plaintiff must allege facts which establish breach a legally recognized obligation of the defendant causally connected to actual damages suffered plaintiff. Bi/t -Rite Contractors, Inc. The Architectural Studio, [] 866 A.2d
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J-S47040-16 270, 280 ([Pa.] 2005). The plaintiff proves the duty breach elements showing that the defendant's act or omission fell below the standard of care and, therefore, increased the risk of harm to the plaintiff. Thierfelder v. Wolfert, 52 A.3d 1251, 1264 (Pa. 2012). Once the plaintiff has carried this burden, s /he must further demonstrate the causal connection between the breach of a duty of care the harm alleged: that the increased risk a substantial factor bringing about the resultant harm.
Scampone v. Highland Park Care Ctr., LLC, A.3d 582, 596 (Pa. 2012).
"Although it is clear a jury is not permitted to reach a verdict based upon guess speculation, it is equally clear jury may draw inferences from all of the evidence presented." First v. Zem Zem Temple, 686 A.2d 21 (Pa. Super. 1996), citing Cade McDanel, 679 A.2d 1266 (Pa. Super. 1996).
It is not necessary, under Pennsylvania law, every fact or circumstance point unerringly to liability; is enough there be sufficient facts the jury to say reasonably . The facts are the jury in preponderance favors liability. . . any case whether based upon direct circumstantial evidence where reasonable conclusion can be arrived at which would place liability the defendant. It [the] plaintiffs to produce substantial evidence which, if believed, warrants verdict they seek. The right litigant to have jury pass facts be reasonable man might properly find either way. A substantial part right jury taken away when judges withdraw close cases jury. Therefore, when party who has the burden of proof relies upon circumstantial evidence inferences reasonably deductible therefrom, such evidence, order prevail, must adequate establish the conclusion sought must so preponderate favor conclusion outweigh mind of the fact - finder any other reasonable inferences therefrom are inconsistent therewith. Id. (citations omitted).
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In First, the plaintiff was attending a wedding reception, where she fell while dancing on a temporary dance floor supplied and installed her deposition, the plaintiff testified she fell because defendants. "the heel shoe slipped on the dance floor's wooden surface, that she observed the dance floor had a section which was lighter color than the other areas of the floor." Id. Additional also established portions of the floor were discolored, slippery, raised, but plaintiff's fall occurred three four feet away from those areas. Defendants moved for summary on the basis that, due to her location when fell, the slippery or raised areas of the floor could not have caused plaintiff's fall. The agreed, finding that plaintiff could identify reason fell or the identified hazards the floor caused her to fall.
On appeal, this Court reversed, finding plaintiff had produced sufficient circumstantial jury reasonably infer slippery raised area of the floor caused her to fall. The Court noted:
"Negligence may established circumstantial evidence, where plaintiff describes the nature location of fall, jury determine whether defect which existed small area described was cause of the injury, [the question of whether] the defect sufficient consequence jury." Frazier charge defendants with negligence . . . City of Pittsburgh, [] A.2d 500 ([Pa. Super.] 1940) ... [I]n avoiding summary [plaintiff] "need not negate . prove with all other possible causes occurrence, . . mathematical certainty, exclusion of other possibilities,
J-S47040-16 an occurrence only have been caused in one manner consistent with [the defendants'] liability." Agriss v. Roadway Express, Inc., [] 483 A.2d 456, 466 ([Pa. Super.] 1984) (citations omitted).
Id. (emphasis added in First).
Similarly, here, conclude that, even without considering Hitchner's affidavit,' there was sufficient evidence in record which jury could reasonably have inferred the dilapidated condition of the steps caused Hitchner fall injure herself. deposition testimony, Bartell admitted the concrete were "worn," "uneven," "broken," and "messed up." Bartell Deposition, 24, 25, 33. Based on this, viewing the in light most favorable as the non- moving party, Cresswell, supra, jury could have reasonably inferred that damaged of the steps caused to slip fall she ' This Court has repeatedly declined find an abuse discretion where a discounts affidavits in an opposing party contradicts prior deposition effort overcome summary judgment. See Stephens v. Paris Cleaners, Inc., 885 A.2d 59 (Pa. Super. 2005) (no abuse discretion grant summary judgment where court disregarded affidavit contradicted earlier deposition testimony); Gruenwald v. Advanced Computer Applications, Inc., 730 A.2d 1004 (Pa. Super. 1999) (trial court may disregard affidavit sworn response to summary motion when it directly contradicts fact court therefore finds not wholly credible); Lucera Johns -Manville Corp., 512 A.2d (Pa. Super. 1986) (no abuse of discretion court disregarding affidavit where affidavit was "wholly credible "); Taylor v. Tukanowicz, 435 A.2d 181 ( "Entry summary (Pa. Super. 1981) proper where . . the evidence relied plaintiff . inherently incredible. "). Accordingly, the court within discretion disregard Hitchner's inconsistent affidavit.
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descended. Accordingly, the court erred concluding that there was insufficient evidence of causation to overcome summary judgment. also challenges the trial court's determination that her claim
was barred because the condition of the steps was open and obvious and, as such, Bartell did not owe to Hitchner. Hitchner argues her employment required use steps and there no alternative route could enter Bartell's home. asserts should have anticipated the harm befell her and, thus, may held liable despite the open obvious condition. We agree.2
Pursuant to the Restatement (Second) of Torts § 343A, [a] possessor land not liable his invitees physical harm caused them any activity land whose danger known or obvious them, unless possessor should anticipate the harm despite such knowledge or obviousness.
Restatement (Second) of Torts § 343A(1).
Comment f section 343A provides follows: We note court did not engage any meaningful analysis of this issue, limiting its discussion to this conclusory statement near end opinion:
Secondly, Defendant asserts agree even if Plaintiff describe precisely what caused the fall, the condition of the was open obvious familiar to her. As such, Plaintiff under Defendant did owe duty these circumstances.
Trial Court Opinion, 8.
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There are, however, cases in which the possessor land can should anticipate the dangerous condition will cause physical harm to the invitee notwithstanding known or obvious danger. such cases possessor not relieved duty of reasonable care he owes to the invitee his protection. This may require him to warn the invitee, to take other reasonable steps to protect him, against the known or obvious activity, if the possessor has reason to expect the invitee will nevertheless suffer physical harm. ... Such reason may ... arise where the possessor has reason expect the invitee will proceed to encounter the known or obvious danger because reasonable man his position the advantages of doing so would outweigh the apparent risk.
Restatement (Second) Torts § 343A, comment f.
Here, Hitchner's employment required her access Bartell's home perform her duties home care nurse. The steps were the only means to access the residence. Bartell's deposition demonstrates she aware of the dilapidated state of the steps; accordingly, should have anticipated the dangerous condition they created would cause physical harm Hitchner. Moreover, because were the sole means accessing Bartell's home,3 Bartell should have expected that Hitchner would have no choice but to make use them, despite the known obvious danger, because to reasonable person Hitchner's position, i.e., nurse whose job required her to care Bartell her home, testified at deposition could have used neighbor's steps to access her porch. However, her own admission, doing so would have required Hitchner climb over banister when she reached the top of the steps. Bartell Deposition, 4/20/15, at Moreover, testified Bartell never told her use neighbor's steps. Hitchner Deposition, 19.
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advantages of using steps would outweigh the apparent risk. See id. Accordingly, under section 343A of the Restatement, Bartell may held liable to Hitchner despite the open obvious condition of the steps.
Order vacated; case remanded further proceedings accordance with the dictates of this memorandum. Jurisdiction relinquished.
Judgment Entered.
J: seph D. Seletyn,
Prothonotary
Date: 10/24/2016
