NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellee No MDA 2013

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P RAEDELLE FOSTER Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA v. MICHAEL DOWNEY Appellee No MDA 2013 Appeal from the Judgment Entered September 16, 2013 In the Court of Common Pleas of Schuylkill County Civil Division at No(s): S BEFORE: GANTMAN, P.J., ALLEN, J., and LAZARUS, J. MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 02, 2014 Appellant, Raedelle Foster, appeals from the judgment entered in the Schuylkill County Court of Common Pleas in favor of Appellee, Michael Downey, following the denial of Appellant s post-trial motion to remove a compulsory nonsuit which the court granted at the close of Appellant s casein-chief in this personal injury action. 1 We affirm. 1 Appellant purports to appeal from the trial court s denial of her post-trial motion to remove nonsuit. [I]n a case where nonsuit was entered, the appeal properly lies from the judgment entered after denial of a motion to remove nonsuit. Billig v. Skvarla, 853 A.2d 1042, 1048 (Pa.Super. 2004). In the present action, Appellant filed her notice of appeal on August 7, Judgment on the verdict, however, was not entered until September 16, Thus, Appellant s notice of appeal relates forward to September 16, 2013, the date judgment was entered and copies of the judgment were distributed to the appropriate parties. See Pa.R.A.P. 905(a).

2 The relevant facts and procedural history of this appeal are as follows. On the morning of January 29, 2008, Appellant slipped and fell on ice on Appellee s sidewalk, breaking her right ankle. In December 2009, Appellant filed a complaint. She alleged one count of negligence, asserting Appellee failed to properly maintain a safe sidewalk. A jury trial was held on March 4, At the close of Appellant s evidence, Appellee made an oral motion for a compulsory nonsuit, which the trial court granted. On March 14, 2013, Appellant filed a motion to remove the compulsory nonsuit. The trial court denied Appellant s motion by order of July 12, 2013, and entered judgment on September 16, Appellant timely filed a notice of appeal and Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On appeal, Appellant presents two issues for our review: WHETHER THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO CONSIDER WHETHER [APPELLEE] HAD ACTUAL OR CONSTRUCTIVE NOTICE OF AN ICY ACCUMULATION ON HIS SIDEWALK? WHETHER THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO CONSIDER WHETHER A DEFECT IN THE SIDEWALK WAS THE SOLE CAUSE OF [APPELLANT S] FALL? (Appellant s Brief at 4). Our standard of review following the denial of a motion to remove nonsuits is as follows: This Court will reverse an order denying a motion to remove a nonsuit only if the trial court abused its discretion or made an error of law. Brinich v. Jencka, 757 A.2d 388, 402 (Pa.Super. 2000), - 2 -

3 appeal denied, 565 Pa. 634, 771 A.2d 1276 (2001) (citing Emge v. Hagosky, 712 A.2d 315, 317 (Pa.Super. 1998)). Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal citations omitted). The grant of a nonsuit is proper when, having viewed all the evidence in the plaintiff s favor, the court determines plaintiff has not established the elements of her cause of action. Brinich, supra. [Pennsylvania law establishes] that a jury cannot be permitted to reach its verdict on the basis of speculation or conjecture, and that a judgment of nonsuit is properly entered if a plaintiff has not introduced sufficient evidence to establish the elements necessary to maintain an action. In addition, it is the duty of the trial judge to determine, prior to sending the case to the jury, whether or not the plaintiff has met this burden. Thomas by Thomas v. Duquesne Light Co., 545 A.2d 289, 293 (Pa.Super. 1988), aff d and remanded, 528 Pa. 113, 595 A.2d 56 (1991) (citations omitted). In Appellant s issues combined, she asserts the record shows Appellee had actual or constructive notice of an unreasonable risk to Appellant. Appellant argues the reasonableness or unreasonableness of the risk of harm to licensees depends on the circumstances and emphasizes that this issue is a question solely for the jury. Appellant contends actual or - 3 -

4 constructive notice can be shown by conditions in existence for a substantial period of time. Appellant argues Appellee had constructive notice of the risk, where a depression in the sidewalk existed for a considerable period of time. Appellee as the property owner knew or should have known ice would accumulate in the depression. Additionally, Appellant contends the sidewalk at issue is cracked and uneven and ice accumulated in uneven places on the sidewalk. Appellant further argues she needed no evidence of precipitation to establish Appellee s constructive notice of the icy condition. Appellant concludes this Court should reverse the trial court s order, denying her motion to remove the nonsuit, and remand for a new trial. We disagree. With respect to the duty owed by property owners to the pedestrians on their sidewalk, a pedestrian walking on a public sidewalk is a licensee of the property owner. Alexander v. City of Meadville, 61 A.3d 218, 221 (Pa.Super. 2012). The duty owed a licensee in Pennsylvania was established by our Supreme Court in Sharp v. Luksa, 440 Pa. 125, 269 A.2d 659 (1970), when it adopted the language of section 342 of the Restatement (Second) of Torts. Section 342 provides as follows: A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and - 4 -

5 should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved. Restatement (Second) of Torts 342 (1965). The conjunctive wording of section 342 indicates that a possessor of land is subject to liability only if all three criteria are present. Himes v. New Enterprise Stone & Lime Co., Inc., 582 A.2d 353, 356 ([Pa.Super.] 1990). This determination may be made by the court where reasonable minds could not differ as to the conclusion. Id. at 358. Cresswell v. End, 831 A.2d 673, 677 (Pa.Super. 2003). This Court has summarized the doctrine of hills and ridges as follows: This doctrine provides that an owner or occupier of land is not liable for general slippery conditions, for to require that one s walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions in this hemisphere. Snow and ice upon a pavement create merely transient danger, and the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove it when it is in a dangerous condition. In order to recover for a fall on an ice- or snow-covered sidewalk, a plaintiff must prove (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians travelling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall

6 Gilligan v. Villanova University, 584 A.2d 1005, 1007 (Pa.Super. 1991) (citations omitted). Instantly, there is nothing in the record to suggest Appellee had actual notice of ice on the sidewalk. At trial, Appellant presented a weather report that showed precipitation on the morning of her fall. The same report also showed 0.00 inches of precipitation in the ten days preceding her fall and minimal precipitation for the entire month of January prior to her fall. (Appellant s Exhibit 10; R.R. at 153). Appellant offered no other evidence to allow a jury to conclude, without speculating, that an icy condition existed prior to the moment of Appellant s fall. Consequently, Appellant failed to prove the requisite element of notice. Moreover, the facts presented failed to overcome the doctrine of hills and ridges. Appellant offered nothing on whether the ice was of such size or character to pose an unreasonable obstruction to travel on the sidewalk. Without actual or constructive notice of any slippery or icy condition, Appellee had no duty to remove the alleged dangerous condition. See id. In sum, the record makes clear the court properly granted the nonsuit for Appellee when, having viewed all the evidence in Appellant s favor, the court determined that she had not established the elements of her cause of action. See Brinich, supra. Accordingly, we affirm

7 Judgment affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/2/