J-A23036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

JOHN O'BRIEN 

Appellant

v.

RODNEY & MARY HOUSER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 162 MDA 2023

Appeal from the Order Entered December 28, 2022

In the Court of Common Pleas of Lancaster County Civil Division at 

No(s): CI-20-05687

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: DECEMBER 21, 2023

Plaintiff/Appellant, John O’Brien (“O’Brien”) appeals from the order 

entered in the Court of Common Pleas of Lancaster County granting summary 

judgment to Defendants/Appellees Rodney and Mary Houser (“the Housers”) 

in O’Brien’s personal injury-based negligence action. After careful 

consideration, we reverse and remand.

The present matter arises from O’Brien’s slip and fall accident that 

occurred in August 2018 while acting in his capacity as a business invitee 

member of a painting crew hired by the Housers to paint the exterior of their 

home and other outbuildings/structures. In accordance with the Housers’ 

direction, O’Brien and the painting crew had been parking their work truck 

behind the home in a space designated for the Housers’ residence rather than 

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* Former Justice specially assigned to the Superior Court.
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on the street fronting the home, where parking restrictions were enforced. 

N.T., 2/11/21 (O’Brien deposition), at 57-58. O’Brien’s work on the first two 

days of the job was confined to the back of the home, and he did not walk 

from the back of the property to the front during this time. N.T. at 58-62. 

After rain postponed work for a day, the painters returned with the 

intention of painting the front porch. N.T. at 63, 65. They parked temporarily 

at the front of the home to unload paint and then moved their truck to the 

designated parking space behind the Houser’s back yard. N.T. at 64. To walk 

from the back yard of the property to the front yard, the workers needed to 

cross both a back yard brick patio and then a narrow, approximately two-andone-half to three-foot wide, paved path—which they called the “alleyway”,

“little channel”, or a “breezeway”—that ran between the Houser’s and their 

next-door neighbor’s homes. N.T. at 67-68, 73, 157. Prior to Appellant’s fall

in the alleyway, he had walked this path twice—once in each direction—

without event. N.T. at 68. 

While the workers were painting tall poles on the porch, the supervisor 

at the site asked O’Brien to get the 20-foot aluminum extension ladder from 

the truck and bring it to the front porch. N.T. at 66; N.T. 9/9/21 at 20. 

O’Brien, who was wearing standard painter’s pants, a company-issued shirt, 

and what he described as an expensive pair of work boots in excellent 

condition, walked back to the truck, retrieved the ladder, and carried it parallel 

to the ground with his right hand in the middle to balance it and his left hand 

forward on the ladder to stabilize it. N.T., 2/11/21, at 69, 72. 
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O’Brien described the alleyway as “dark” at the time, especially because 

of the overcast conditions, and as he walked through it, he stepped onto a 

clump of wet moss and “basically took a face plant.” N.T. at 73. He was 

unsure if the paved alleyway surface was brick, cobblestone, or asphalt, but 

he said the area contained much vegetation and was mossy, wet, and slick. 

N.T. at 73. 

In fact, according to O’Brien, the entire backyard patio was covered with 

moss, and the workers were keenly aware of this condition during their first 

two days working on the back of the home, electing to avoid the mossy 

surface, when possible, by walking on the back yard grass instead. N.T. at 

73-75, 78. O’Brien also clarified that while he had walked through the 

“alleyway” twice on the morning before his fall, he was forced to take a 

different foot path through it when he carried the ladder, as he needed to walk

further to the side to avoid damaging the home and shrubs with it. He 

maintained that he did not see the moss on which he stepped and slipped at 

that moment. N.T. at 77-79, 82.

O’Brien sustained a torn right bicep tendon that required multiple 

surgeries, N.T. at 87, 91, and continues to cause significant pain, N.T. at 132,

and a torn right rotator cuff. N.T. at 128-129.

Douglas Brubaker, the head painter of Two Dudes Painting and O’Brien’s 

supervisor at the Houser job provided deposition testimony that the workers 

noticed wet moss was in between every brick on the patio and breezeway and 
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considered it to be slippery, but he did not recall anyone slipping on it before 

O’Brien’s fall. N.T., 9/9/21 (Brubaker Deposition), at 26, 32-33. Brubaker 

testified that, to his recollection, O’Brien and the crew walked from the back 

to the front of the house every day on the job to do the front porch, N.T. at 

34, but he corrected his testimony later to say that O’Brien had worked on the 

back of the home in the beginning of the job. N.T. at 39-40. 

The spot where O’Brien fell, according to Brubaker, was dark and wet 

every morning because it was shaded by the neighbor’s house. N.T. at 35. It 

was Brubaker recollection that it was not raining that morning because they 

were able to paint the exterior of the front porch. N.T. at 36.

Brubaker described the area where O’Brien fell as a “breezeway” 

between the houses where the brick patio transitioned to what he said was a 

concrete surface. N.T. at 35. When asked to estimate the dimensions of the 

mossy conditions in that area, he answered that it “was all over that patio, 

the brick patio on the back. It was all over. It wasn’t just in that damp area. 

I mean, it was thicker there. But, like I said before, it was in between, like, 

each and every brick.” N.T. at 36-37. He related that O’Brien and he 

discussed the mossy conditions prior to O’Brien’s fall, but only to the extent 

that they believed “something ought to be done about it” and that using a 

blow torch on the moss on the brick represented an option. N.T. at 37.

Mr. O’Brien commenced this slip-and-fall personal injury action by filing 

a complaint in negligence on August 24, 2020. The Housers answered the 

complaint, and the parties initiated discovery. On May 25, 2022, the Housers 
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moved for summary judgment on theories that O’Brien had failed to establish 

a duty was owed to him as a business invitee because the alleged dangerous 

condition upon which he fell was open and obvious, and that the Housers did 

not have notice of said defect on their property. O’Brien denied the Housers’ 

claims, arguing that as a business invitee performing work for the Housers he 

was owed a standard of care which the Housers breached when they allowed 

the obviously dangerous condition to exist, causing O’Brien serious injury. 

After presiding over oral argument on September 6, 2022, the trial court 

entered its order of December 28, 2022, granting the Houser’s Motion for 

Summary Judgment. Specifically, the trial court determined that O’Brien had 

“failed to identify on the record that [the Housers] knew, or should have 

known, of a dangerous condition on their property . . . [and] cannot prove, as 

required, that the Housers had a hand in creating the harmful condition, or 

that they had actual or constructive notice of a harmful condition.” Id. at 

598.

The trial court continued:

The record, viewed in a light most favorable to the Plaintiff 

[O’Brien], conclusively shows that Defendants [Housers] were not 

under a duty to take precautions against, or to warn of, any 

dangerous condition created by mossy bricks on their property, 

and the condition, if dangerous, was plainly known and obvious to 

[O’Brien] prior to his accident. [O’Brien] acknowledged the mossy 

bricks, that they had the potential to be dangerous, and, before 

the incident on the third day, made the conscious decision to walk 

on the grass instead of the bricks to avoid a potentially dangerous 

condition. [O’Brien] has failed to establish that [the Housers] had 

notice of any dangerous condition on their property, or that the 

condition, if present, involved unreasonable risk, that the mossy 
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bricks would not have been discoverable by an invitee or that [the 

Housers] failed to take precautions to protect invitees, and 

[O’Brien] has failed to establish that [the Housers] failed to 

exercise reasonable care.

While [the Housers] owed a duty of care to [O’Brien] as a business 

invitee, the facts of this case, including the known and obvious 

nature of the condition, acknowledged by [O’Brien], negates any 

such duty. There remains no genuine issues of material fact and 

[the Housers] are entitled to judgment as a matter of law. As 

such, [the Houser’s] motion for summary judgment is hereby 

GRANTED.

This timely appeal followed.

Appellant O’Brien raises one issue for this Court’s consideration:

Whether the Trial Court abused its discretion and misapplied the 

law when it made factual findings in the light most favorable to 

the moving party [the Housers] and concluded as a matter of law 

that Defendants [the Housers] did not owe Plaintiff [O’Brien] any 

duty of care?

Brief of Appellant, at 6.

When reviewing a challenge to the grant of summary judgment:

We view the record in the light most favorable to the nonmoving 

party, and all doubts as to the existence of a genuine issue of 

material fact must be resolved against the moving party. Only 

where there is no genuine issue as to any material fact and it is 

clear that the moving party is entitled to a judgment as a matter 

of law will summary judgment be entered. Our scope of review of 

a trial court's order granting ... summary judgment is plenary, and 

our standard of review is clear[;] the trial court's order will be 

reversed only where it is established that the court committed an 

error of law or abused its discretion.

Pergolese v. Std. Fire Ins. Co., 162 A.3d 481, 486 (Pa. Super. 2017) 

(citation omitted). “Only when the facts are so clear that reasonable minds 
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could not differ can a trial court properly enter summary judgment.” Straw 

v. Fair, 187 A.3d 966, 982 (Pa. Super. 2018) (citation omitted).

Moreover, we recognize that:

“Where the non-moving party bears the burden of proof on an 

issue, he may not merely rely on his pleadings or answers in order 

to survive summary judgment.” Babb v. Ctr. Cmty. Hosp., 47 

A.3d 1214, 1223 (Pa. Super. 2012) (citation omitted), appeal 

denied, ... 65 A.3d 412 ([Pa.] 2013). Further, “failure of a 

nonmoving party to adduce sufficient evidence on an issue 

essential to his case and on which he bears the burden of proof 

establishes the entitlement of the moving party to judgment as a 

matter of law.” Id.

Thus, our responsibility as an appellate court is to 

determine whether the record either establishes that 

the material facts are undisputed or contains 

insufficient evidence of facts to make out a prima facie

cause of action, such that there is no issue to be 

decided by the fact-finder. If there is evidence that 

would allow a fact-finder to render a verdict in favor 

of the non-moving party, then summary judgment 

should be denied.

Id. [(]quoting Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 

(Pa. Super. 2011) (citations omitted)[)].

Shellenberger v. Kreider Farms, 288 A.3d 898, 905-906 (Pa. Super. 2023) 

(quoting Truax v. Roulhac, 126 A.3d 991, 997 (Pa. Super. 2015)).

Herein, Appellant O’Brien contends that the trial court erred in granting 

summary judgment in favor of the Housers, as sufficient factual evidence was 

presented through both Brubaker’s and his deposition testimonies to establish 

a prima facie case of negligence on the part of the Housers. Relevant

jurisprudence holds that to establish a cause of action for negligence, a 

plaintiff must demonstrate the following four elements: 
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(1) a duty or obligation recognized by the law that requires an actor 

to conform his actions to a standard of conduct for the protection of 

others against unreasonable risks; (2) failure on the part of the 

defendant to conform to that standard of conduct, i.e., a breach of 

duty; (3) a reasonably close causal connection between the breach 

of duty and the injury sustained; and (4) actual loss or damages that 

result from the breach.

Shellenberger, 288 A.3d at 906 (citation omitted). It follows that a plaintiff 

must show, inter alia, “that a defendant owed a duty of care, and that this 

duty was breached. Indeed, the issue of whether the defendant owed a duty 

of care to the plaintiff is the primary question in a negligence suit.” Id. at 

655.

There is no dispute that O’Brien was a business invitee of the Housers. 

The duty of care owed to a business invitee is the highest duty owed to any 

entrant upon land. Truax, 126 A.3d at 997. “The landowner is under an 

affirmative duty to protect a business visitor not only against known dangers 

but also against those which might be discoverable with reasonable care.” Id.

(quoting Charlie v. Erie Ins. Exch., 100 A.3d 244, 253 (Pa. Super. 1998)).

Our caselaw sets forth the duty that a possessor of land owes to 

business invitees as follows:

A 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

(b) should expect that they will not discover or realize the danger, 

or will fail to protect themselves against it, and
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(c) fails to exercise reasonable care to protect them against the 

danger.

Shellenberger, 288 at 908 (citing Restatement (Second) of Torts, § 343).

Thus, as is made clear by section 343A of the Restatement,

a possessor of land is not liable to his invitees for physical harm 

caused to them by any activity or condition on the land whose 

danger is known or obvious to them, unless the possessor should 

anticipate the harm despite such knowledge or obviousness.

Restatement, supra, § 343A (emphasis added). For a danger to be “known,” 

it must “not only be known to exist, but ... also be recognized that it is 

dangerous and the probability and gravity of the threatened harm must be 

appreciated.” Id. at 124 (quoting Restatement (Second) of Torts, § 343A, 

comment b).

The trial court appropriately acknowledged and adopted this heightened 

standard of care owed by the Housers, but we find that in applying it the trial 

court resolved issues of material fact that are properly within the province of 

a finder of fact to resolve. Notably, in asking the first question of the threepart inquiry into whether liability may lie for harm caused to a business invitee,

the trial court reviewed the record and concluded that “Plaintiff [O’Brien] has 

failed to identify on the record that Defendants [the Housers] . . . should have 

known of a dangerous condition on their property [and,] [m]oreover, . . . 

cannot prove, as required, that Defendants [the Housers] . . . had actual or 

constructive notice of a harmful condition.” Trial Court Opinion, 12/28/22, at 

7. 
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When read in a light most favorable to O’Brien as the non-moving party, 

however, the deposition testimonies of O’Brien and Mr. Brubaker sufficed to 

create issues of material fact with respect to both O’Brien’s and the Housers’ 

respective knowledge of the alleyway conditions. Specifically, the painters 

alleged that the slippery condition of the wet, mossy brick patio as it led down 

to the “alleyway” or “breezeway” area where O’Brien slipped and fell was 

readily apparent. In fact, each indicated that the moss coverage on the 

property was ubiquitous and so concerning that the two men discussed 

possible remedies for it and shared the opinion that the Housers ought to have 

done something about the slippery conditions the moss created. 

According to O’Brien, furthermore, the dim natural lighting and poor 

visibility in the alleyway between the houses that morning prevented him from 

spotting beforehand the clump of moss on which he stepped and slipped to 

his detriment. He asserted, however, that he immediately saw the moss patch 

on the pavement after he fell, and he described the moss at that location as 

even thicker than what existed on the patio.

Raised by such testimonies were questions of material fact regarding 

whether the Housers knew or should have known about the allegedly large

amount of moss conspicuously covering the brick and asphalt walkways in 

their yard, about the alleged slippery conditions it caused in wet weather, and 

whether such conditions should have placed them on notice of an 

unreasonable risk of harm imposed on the painting crew who, foreseeably,

would traverse these walkways when going between the rear lot parking space 
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and the front of the home in fulfillment of their work duties. Reasonable jurors 

could disagree on these issues of material fact.

The trial court also found Mr. O’Brien’s acknowledgement that he worked 

despite his appreciation of the obviously dangerous conditions of the Houser’s 

walkways had the effect of negating the Housers’ duty of care toward O’Brien. 

In concluding that O’Brien’s assumption of such a risk precluded his recovery, 

the trial court cites to our Pennsylvania Supreme Court’s decision in 

Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983), in which the Court discussed 

the relationship between the assumption-of-risk doctrine and the rule that a 

possessor of land is not liable for obvious dangers.1

Carrender involved an action in trespass brought by a patient who 

suffered injury from slipping on a patch of ice covering a small section of a

parking lot owned by the chiropractors she was visiting. The facts established 

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1 We note that this Court has recently observed, “[w]hile assumption of the 

risk has not been formally abolished by our Supreme Court, this Court has 

acknowledged that it has fallen into disfavor, ‘as evidenced by our [S]upreme 

[C]ourt's two ... attempts to abolish or limit it.’ Staub v. Toy Factory, Inc., 

749 A.2d 522, 528 (Pa. Super. 2000) (en banc) (citing Howell v. Clyde, 620 

A.2d 1107 (Pa. 1993) (plurality), and Rutter v. Northeastern Beaver 

County School District, 437 A.2d 1198 (Pa. 1981) (plurality)).” Babbish 

v. Pixie Paradise Child Care Ctr., (Pa. Super. filed May 11, 2020)

(unpublished memorandum decision); see Pa.R.A.P. 126(b) (nonprecedential decisions filed after May 1, 2019, may be cited for persuasive 

value); see also Operating Procedure 65.37 (same). As such, we discuss 

Carrender to the extent the trial court in the case sub judice relied on the 

decision, distinguish it on its facts, and consider whether the deposition 

testimony at issue created a jury question regarding O’Brien’s and the 

Housers’ respective acts and states of mind under the relevant circumstances.

 
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that plaintiff Carrender elected to park alongside the ice patch, the only one 

present on the lot, despite observing that other ice-free parking spaces were 

available. Even after confirming the ice was slippery by sliding her feet on it 

while remaining seated in the driver’s seat, Carrender decided to alight her

vehicle. She placed her hand on the neighboring car to maintain her balance 

while walking from the parking space, but when she returned to her car after 

the visit, she slipped and fell on the ice, sustaining a fractured hip. Id. at 

122.

At trial, chiropractors sought an “assumption of the risk” instruction as 

a complete bar to recovery, but the trial court refused because doing so, in its 

opinion, was incompatible with Pennsylvania’s comparative negligence statute 

at 42 Pa.C.S. § 7102. The jury returned a plaintiff’s verdict, and a panel of 

this Court affirmed, ruling in part that the trial court had not erred in refusing 

to charge the jury on the defense of assumption of the risk. 

Our Supreme Court granted the chiropractors’ petition for allowance of 

appeal and reversed, concluding that, “as a matter of law, the chiropractor 

was under no duty either to take precautions against or to warn of the isolated 

patch of ice on the parking lot.” Id. at 123. After setting forth the standard 

of care under Restatement 343, the high court found it determinative that 

chiropractors could have reasonably expected that the danger posed by the 

isolated patch of ice would be avoided by their business invitees:

There was nothing presented on the record to indicate that, 

notwithstanding the obviousness of the danger, appellants

[chiropractors] should have anticipated that the patch of ice might 
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go unnoticed by appellee or any other patient; on the contrary, 

appellants [chiropractors] could reasonably expect that, in light of 

the number of clear, convenient spaces available, appellee and 

other invitees would recognize the danger posed by the ice and 

choose to park in another, ice-free space to avoid it. See

Restatement, supra, § 343A comment g.fn

Fn Comment g to section 343A provides that a public 

utility or a governmental unit, entities more likely to expect 

that an invitee will encounter danger on land than other 

landowning entities, see Restatement, supra, § 343A(2), 

nevertheless “may reasonably assume that members of 

the public will not be harmed by known or obvious dangers 

which are not extreme, and which any reasonable person 

exercising ordinary attention, perception, and intelligence 

could be expected to avoid. This is particularly true where 

a reasonable alternative way is open to the visitor, known 

or obvious to him, and safe.” (emphasis added). See § 

343A Illustration 9 (steamship company not liable for 

injuries sustained by passenger who stumbles over trunk 

while “preoccupied with her own thoughts,” where 

passenger had ample room for passage around trunk and 

other visible objects). Compare Jones v. Three Rivers 

Management Corp., 483 Pa. 75, 394 A.2d 546 (1978), 

and Pro v. Pennsylvania Railroad Co., 390 Pa. 437, 135 

A.2d 920 (1957) (landowner liable where invitee's 

attention diverted by feature of premises).

In light of appellee's uncontradicted testimony, it must be 

concluded that the danger posed by the isolated patch of ice was 

both obvious and known, and that appellants could have 

reasonably expected that the danger would be avoided. Thus, 

appellee failed to establish the element of duty essential to a 

prima facie case of negligence, and appellants were therefore 

entitled to a judgment notwithstanding the verdict. See Atkins 

v. Urban Redevelopment Auth. of Pittsburgh, supra

(judgment n.o.v. proper where danger of missing step obvious to 

invitee); Knapp v. Bradford City, 432 Pa. 172, 247 A.2d 575 

(1968) (judgment n.o.v. proper where plaintiff's own testimony 

indicated that danger was open and obvious).

Carrender 469 A.2d at 124 (emphasis added).
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We find the present facts distinguishable from those of Carrender, 

however, as the record in the present matter, when read in a light most 

favorable to the non-movant O’Brien, does not compel the conclusion that the 

Housers reasonably could have expected the painters to avoid the slippery 

walkway where O’Brien sustained his injury. Unlike the “isolated patch” of ice 

in a parking lot that otherwise offered many ice-free, open parking space 

options to Ms. Carrender, both Brubaker and O’Brien testified in their 

depositions that the wet patches of moss causing slippery conditions stretched 

throughout the length of the hard surface walkways in the Houser’s yard, 

including the location where Mr. O’Brien slipped and fell. Neither O’Brien nor 

Brubaker testified that O’Brien easily could have chosen a safer path, let alone 

one of equal or similar convenience, as was the case in Carrender. 

Under the circumstances described by the two painters, the only options 

other than walking the direct route through the alleyway or breezeway to 

access the front porch consisted of either walking around the neighborhood 

block or defying the Housers’ request and parking their trucks out front on 

pain of receiving a parking citation. Furthermore, the painters had significant 

work to do on both the front and back of the Housers’ home, and a finder of 

fact could reasonably conclude it was foreseeable that, despite the alleged 

conditions, they would fail to protect themselves from dangers associated with

the moss-covered walkways for the sake of completing their work. As this 

Court observed in Staub, 
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in a negligence context, where an employee is required to 

encounter a risk in order to perform his job, reasonable minds 

could disagree as to whether the employee “deliberately and with 

awareness of specific risks inherent in the activity nonetheless 

engaged in the activity that produced the injury.” Howell [v. 

Clyde, 620 A.2d 1107,] 1113 (Pa. 1993) (plurality). Thus the 

employee's “conduct is better judged by its reasonableness, that 

is, by negligence principles.” Fish[v. Gosnell, 463 A.2d 1042, 

1049 (Pa. Super. 1983)]. A trial court should not, therefore, 

decide the issue as one of duty or lack thereof; instead, the issue 

should go to the jury as one of comparative negligence. 

Staub, 749 A.2d at 529–30 (Pa. Super. 2000).

Viewing the deposition record in a light most favorable to Mr. O’Brien as 

the non-moving party, we find jurors could fairly determine that he reasonably

carried the ladder in a responsible manner through the alleyway as he knew 

it at the time and that the Housers had no realistic expectation that the 

painters would avoid using the walkways leading to the front yard in this 

manner. More broadly, under the alleged circumstances where the Housers

had told the painters to park in the back, there exists a question of fact 

regarding whether the Housers thus had reason to expect that O’Brien and 

the painting crew would feel compelled in the ordinary course of their work to 

traverse the walkways, including the alleyway, despite the slippery conditions

and would, to that extent, fail to protect themselves from such danger. 

Accordingly, we conclude that the trial court erred in resolving this question 

of disputed fact.
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For the foregoing reasons, we reverse the trial court’s grant of summary 

judgment in favor of the Housers and remand for further proceedings 

consistent with this decision. Jurisdiction relinquished. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 12/21/2023