J-A27044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 TIFFANY MITTEREDER IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. SEVEN SPRINGS MOUNTAIN RESORT, INC.: SEVEN SPRINGS FARM, INC., SEVEN SPRINGS MOUNTAIN RESORT, INC., T/D/B/A SEVEN SPRINGS; SEVEN SPRINGS MOUNTAIN RESORT, INC., T/D/B/A SEVEN SPRINGS MOUNTAIN RESORT; SEVEN SPRINGS FARM, INC., T/D/B/A SEVEN SPRINGS; SEVEN SPRINGS MOUNTAIN RESORT, Appellees No. 1790 WDA 2014

Appeal from the Order Entered September 30, 2014 In the Court of Common Pleas of Somerset County Civil Division at No: 571 CIVIL 2012
BEFORE: BOWES, OLSON, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED DECEMBER 21, 2015 Appellant, Tiffany Mittereder, appeals from the Sep tember 30, 2014 order entered in the Court of Common Pleas of Somer set County granting summary judgment in favor of Appellees, Seven Sprin gs Mountain Resort and various affiliated entities. Appellant contend s the trial court erred by granting summary judgment in favor of Appellees. W e disagree and therefore affirm. The trial court provided the following factual bac kground:J-A27044-15

- 2 -

On February 19, 2012, [Appellant] and her boyfriend , Christopher Damron, were skiing at Seven Springs Re sort. At approximately 3:00 p.m. [Appellant] and Mr. Damron entered the “Foggy Goggle” which is a bar and restaurant in side of the ski lodge. [Appellant] had her ski boots on the du ration of time she was at the Foggy Goggle. [Appellant] consumed two to three Captain Morgan and Diet Coke drinks throughou t the three hours she was there. At some point prior to the in cident [Appellant] used the restroom. About three hours a fter [Appellant] arrived at the Foggy Goggle, around 6:0 0 or 6:15 p.m. [Appellant] began her second trip to the restr oom. On her way to the restroom, [Appellant] fell, severely inj uring her arm, which required extensive surgery. The area where [ Appellant] fell was the hallway to the restroom which had a co ncrete floor. [Appellees’] employee took down an incident report following [Appellant’s] fall which lists “injured[’s] descrip tion of incident” (i.e. [Appellant’s] description) as “walking to the bathroom, turned corner, was ice on floor, slipped and fell—wa s wearing ski rental boots.” Although the report states this, du ring [Appellant’s] deposition she said she did not have first hand knowledge of the cause of her fall, as the Brief in Opposition states she “cannot specifically identify precisely what caused her to fall” due to the pain she was in after the fall. [Appellant] does recall having a conversation with a woman who assisted her right after she fell “who stated that she had noticed ice or slush in the area where [Appellant] fell and knew someone was going to fall.” Mr. Damron, who was walking be hind [Appellant] when she fell, is also unable to testif y as [to] the cause of [Appellant’s] fall, but does recall the wo man assisting them. The incident report does not list a witness to the incident and the identity of the woman who made the statemen t remains unknown. [Appellant] filed suit for negligence on August 10, 2012 and [Appellees] moved for summary judgment on June 27, 2014.J-A27044-15

- 3 -

Trial Court Memorandum (Memorandum), 10/1/14, at 1- 3 (references to Appellant’s Brief in Opposition to Appellees’ Motio n for Summary Judgment omitted). 1 By order entered September 30, 2014, the trial cou rt granted Appellees’ motion for summary judgment, finding App ellees were entitled to judgment as a matter of law because there were no i ssues of material fact and also concluding the motion was not premature. Memorandum at 11. This timely appeal followed in which Appellant asks this Court to consider two issues, which we have reordered for ease of dis cussion:
1. Whether [Appellant] has provided sufficient circums tantial evidence and facts to establish a genuine issue of material fact that should be submitted to a jury for determi nation?
2. Whether [Appellees’] motion for Summary Judgment wa s premature as discovery had not yet been completed i n the instant case? Appellant’s Brief at 4. 2

____________________________________________ 1 Although not mentioned by the trial court in its f actual summary, Appellees do not suggest that Appellant was intoxicated or th at her alcohol consumption played any role in causing Appellant’s fall. See, e.g. , Notes of Testimony, Argument, 9/11/14, at 2.

2 In her statement of questions involved, Appellant lists the two issues identified above. However, Appellant’s argument is broken into four sections. We remind Appellant’s counsel that Rule of Appellate Procedure 2119 requires the argument section of an appellant’ s brief to “be divided into as many parts as there are questions to be argued; and shall have at the head of each part . . . the particular point treate d therein, followed by such discussion and citation of authorities as are deeme d pertinent.” Pa.R.A.P. 2119.J-A27044-15

- 4 -

Pennsylvania Rule of Civil Procedure 1035.2 provid es: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any mater ial fact as to a necessary element of the cause of action or defense which could be established by additional di scovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to th e cause of action or defense which in a jury trial would requi re the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2. This Court reviews a decision granting summary judg ment according to the following standard: A reviewing court may disturb the order of the tria l court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary. In evaluating the trial court’s decision to enter s ummary judgment, we focus on the legal standard articulate d in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact an d the moving party is entitled to relief as a matter of law, sum mary judgment may be entered. Where the non-moving party bears t he burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Fail ure of a nonmoving party to adduce sufficient evidence on an issue essential to his case and on which it bears the bur den of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts a s to the existence of a genuine issue of material fact must be resolved against the moving party.J-A27044-15

- 5 -

JP Morgan Chase Bank, N.A. v. Murray , 63 A.3d 1258, 1261–62 (Pa. Super. 2013) (quoting Murphy v. Duquesne Univ. of the Holy Ghost , 777 A.2d. 418, 429 (Pa. 2001)). In her first issue, Appellant contends she has prov ided sufficient circumstantial evidence and facts to establish a ge nuine issue of material fact that should be submitted to a jury for determi nation. The trial court examined this contention under the test announced b y our Supreme Court in Carrender v. Fitterer , 469 A.2d 120 (Pa. 1983), which states: Possessors of land owe a duty to protect invitees f rom foreseeable harm. Restatement[ (Second) of Torts], §§ 341A, 343 & 343A. With respect to conditions on the land which are known to or discoverable by the possessor, the poss essor is subject to liability only if he, “(a) knows or by the exercise of reasonable care wo uld discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee, and (b) should expect that they will not discover or re alize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect th em against the danger.” Restatement, supra , § 343. Id. at 123. The trial court first considered Appellees’ assert ion that Appellant lacked sufficient evidence to present an issue of f act as to whether a “dangerous condition” existed. Memorandum at 6. T he trial court agreed with Appellees, determining:J-A27044-15

- 6 -

[T]here is only a statement by an unidentified witn ess (that may or may not be admissible) to imply that there was a ny water or slush on the floor in the first place, as every oth er witness to the incident as well as [Appellant] herself does not re member seeing water or ice on the floor, and there is no evidence that [Appellees] knew or should have known about the all eged condition as required by the first prong of Carrender

. Id. The trial court suggested it would exclude as inadm issible hearsay the statement supposedly made to Appellant by an unknow n witness, but indicated a finding of admissibility would not alte r its ruling on the motion. “Assuming hypothetically that the statement is admi ssible, it does not, nor does any other evidence, create a question of fact as to whether [Appellees] knew about the alleged slush or ice.” Id. at 7. Consequently, Appellant could not satisfy the first prong of the Carrender test because there was “no dispute of fact as to whether [Appellees] had a ctual notice.” Id. 3
As to the second element of the Carrender test, the trial court determined Appellant could not satisfy that prong, which requires that the possessor of land should expect that invitees would fail to discover or realize the danger of a condition or will fail to protect t hemselves against it. Because Appellees did not have notice of the condit ion, they had “no basis to expect that invitees, like [Appellant], may fail to protect themselves from the unknown condition.” Id. at 9.

____________________________________________ 3 The trial court similarly and appropriately dismis sed any suggestion Appellees had constructive notice.J-A27044-15

- 7 -

Finally, to meet the third prong of Carrender , Appellant must prove that Appellees failed to exercise reasonable care t o protect her against any dangerous condition. “Where a fall is alleged beca use of water [on] the floor, [Appellant] must prove that the proprietor f ailed to monitor and maintain the area in order to establish a breach of duty.” Id. at 10 (citing Estate of Swift v. Northeastern Hospital of Philadel phia , 690 A.2d 719, 723 (Pa. Super. 1997)). The trial court concluded Appellant failed to produce evidence to show Appellees breached any dut y to maintain or monitor the Foggy Goggle on the day in question. “ In fact, [Appellees] presented evidence that six bartenders and seven wa itresses were on staff in the Foggy Goggle that day, who were trained to r eport any spill or other such condition to housekeeping, and two housekeeper s were assigned to the building that day.” Id. (citing Appellees’ Memorandum in Support of Its Motion for Summary Judgment, 6/25/14, at 16). The trial court concluded there were no genuine is sues of material fact. Because Appellant failed to produce evidence to sat isfy any of the Carrender prongs, the trial court found Appellees were entitl ed to judgment as a matter of law. As reflected above, this Court may disturb the tria l court’s grant of summary judgment only if Appellant establishes that the trial court committed an error of law or abused its discretion. JP Morgan Chase Bank , 63 A.3d at 1261 (citation omitted). Again:J-A27044-15

- 8 -

In evaluating the trial court’s decision to enter s ummary judgment, we focus on the legal standard articulate d in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact an d the moving party is entitled to relief as a matter of law, sum mary judgment may be entered. Where the non-moving party bears t he burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears t he burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will view the record in the light most favorable to the non-m oving party, and all doubts as to the existence of a genuine iss ue of material fact must be resolved against the moving party. Id. at 1261-62 (emphasis added) (citation omitted). Here, Appellant failed to adduce sufficient evidenc e of the existence of any “dangerous condition,” any notice that can be i mputed to Appellees, or any failure of Appellees to exercise reasonable car e, all of which are issues essential to her case and on which she bore the bur den of proof. Although Appellant does not suggest she had—or could establis h—evidence of direct negligence on the part of Appellees, she asserts th at circumstantial evidence can serve as a basis for defeating summary judgment . Appellant points to her deposition testimony in which she testified tha t her fall occurred “on the concrete/tile surface leading to the restroom facil ities” and to the testimony both she and her boyfriend offered about the “indep endent witness”—an unidentified individual neither Appellant nor her b oyfriend could describe— who said “she knew someone was going to fall on the snow/slush/water that was present on the floor” where Appellant fell. Ap pellant’s Brief at 28J-A27044-15

- 9 -

(citations to deposition testimony omitted). She a lso suggests that the incident report reveals she was “[w]alking to bathr oom, turned corner, was ice on the floor, slipped and fell, was wearing ren tal ski boots.” Id. at 29 (citations omitted). However, she admits she did n ot see anything on the floor and acknowledges that the information in the incident report, including the reference to “ice on the floor,” was not based on her observation but rather on a statement by the phantom witness. Appe llant’s Deposition, 8/2/13, at 25, 31. Nevertheless, Appellant suggest s she “has established sufficient circumstantial evidence of the existence of a dangerous, hazardous and unsafe condition through deposition testimony, the incident report, and common sense.” Appellant’s Brief, at 29. In support of her position regarding sufficiency of circumstantial evidence, Appellant cites several cases in which ci rcumstantial evidence was deemed sufficient to warrant a case going to a jury . Appellant’s Brief at 18- 21. Appellant’s reliance on each case is misplaced

. For instance, in First v. Zem Zem Temple , 686 A.2d 18 (Pa. Super. 1996), the trial court entered summary judgment aga inst a woman who fell on a temporary dance floor during a wedding recepti on. The appellant and a witness established evidence of two potential defec ts on the dance floor, i.e. , a discolored, slippery area and a raised metal rim, both of which were near where she fell and either of which may have caused her to fall. This Court determined the trial court erred by granting summar y judgment because theJ-A27044-15

- 10 -

appellant presented sufficient evidence to create a jury question on causation.
In McMillan v. Mountain Laurel Racing, Inc. , 367 A.2d 1106 (Pa. Super. 1976), the trial court granted a compulsory nonsuit against a racetrack patron who slipped and fell in a large ro om described as the ground floor of the track’s grandstand. The room, measuring 250’ in length and 80 to 125’ in width, contained more than 30 bet ting windows in the center of the room and four refreshment stands, eac h 25’ long, on one side of the room. The appellant fell near one of the re freshment stands where significant debris had accumulated over the course of more than two hours during the evening. Although she could not say pre cisely what caused her to fall, she testified she believed her fall was cause d “by the liquid, cups, papers, or tickets on the floor.” Id. at 1108. On appeal, this Court reversed the trial court’s grant of a nonsuit, concluding th e appellant’s “proof identified the cause of [appellant’s] fall with eno ugh sufficiency to allow the jury to determine questions of negligence.” Id. at 1111.
In First and McMillan , as well as in the remaining cases cited by Appellant, 4 the plaintiffs and/or witnesses observed and were able to

____________________________________________ 4 Appellant also looks to cases from our Supreme Cou rt, our Commonwealth Court, and the United States District Court for the Middle District of Pennsylvania. Appellant’s Brief at 18-21. While w e are bound only by the Supreme Court’s decisions, we discuss all four brie fly to illustrate they are readily distinguishable from the instant case. (Footnote Continued Next Page)J-A27044-15

- 11 -

describe a dangerous condition that existed in the area of the plaintiff’s fall. (Footnote Continued) _______________________

In Schwartz v. Warwick-Philadelphia Corp. , 226 A.2d 484 (Pa. 1967), the plaintiff was injured in a fall at a wedding re ception where waiters carrying trays of food crossed the dance floor on t heir way to the tables where the guests dined. Plaintiff established the presence of asparagus and sauce on the dance floor where she and her dance pa rtner fell. Our Supreme Court determined the trial court abused its discretion by granting a nonsuit and reversed its ruling, finding “it is rea sonable, proper, and fair to conclude that this concatenation of circumstances m ade out a prima facie case of negligence against the establishment runnin g the wedding feast.” Id. at 486.
In Marks v. Tasman , 589 A.2d 205 (Pa. 1991), an 89-year old legally b lind man tripped and fell on a sidewalk outside his opht halmologist’s office. The friend who accompanied him to the office did not se e the man fall but did see a depression in the sidewalk near the plaintiff ’s feet immediately after the man fall. Our Supreme Court reversed the grant of summary judgment, finding the evidence was sufficient to support an i nference that the man fell because of the defect in the sidewalk and, as such, created a genuine issue of material fact. (To further distinguish Marks , we note that—unlike the other cases upon which Appellant relies— Marks does not involve a transitory condition.)
In Hyatt v. County of Allegheny , 547 A.2d 1304 (Pa. Cmwlth. 1988), an airline employee presented evidence that the upturn ed edge of a floor mat caused her to fall. Because the evidence, when vie wed in the light most favorable to the plaintiff, established the conditi on responsible for her fall and because the county and its maintenance company were in control of the mats and had adopted a policy of taping all four ed ges to avoid falls, the Commonwealth Court reversed a directed verdict ente red by the trial court and remanded for a new trial.
In Evans v. Wal-Mart Stores, Inc. , 2007 U.S. Dist. LEXIS 66675 (M.D. Pa. Sept. 10, 2007), a witness observed grapes on the f loor of the area where the plaintiff fell in the grocery area of a Hazelto n Wal-Mart. The district court denied summary judgment, finding there were q uestions of fact for a jury concerning whether Wal-Mart created a dangerou s condition that was known or should have been known by the store.J-A27044-15

- 12 -

In the cited cases, it was determined that there wa s at least circumstantial evidence of a dangerous condition that existed in t he vicinity of the fall at the time of the fall. By contrast, Appellant could only say that she “turned the corner and fell.” Appellant’s Deposition, 8/2/ 13, at 27. She did not see or observe anything that might have cause her to fa ll. Id. at 27-28. Neither she nor any identified witness could testif y as to a dangerous condition because no condition, dangerous or otherw ise, was observed or reported. It is axiomatic that if no dangerous con dition was observed or reported, notice of a dangerous condition cannot be imputed to Appellees. Viewing the evidence in the light most favorable to Appellant as nonmoving party and resolving all doubts in her favor, it is clear Appellant is unable to establish the existence of any genuine is sue of material fact to evade the grant of summary judgment. Because Appel lant cannot demonstrate that the trial court committed error of law or abused its discretion by granting summary judgment against her , Appellant’s first issue fails for lack of merit. In her second issue, Appellant contends Appellees’ summary judgment motion was premature because discovery had not been completed. A fair reading of the argument section of her brief reveal s it is not the motion itselfJ-A27044-15

- 13 -

Appellant claims was premature but rather the trial court’s grant of that
motion. 5 We will conduct our review accordingly. Appellant contends the trial court’s grant of summ ary judgment foreclosed her from deposing various individuals cu rrently or formerly employed by Appellees and from conducting an expert examination of the area where Appellant fell. Appellant’s Brief at 22 -23. She does not suggest she was impeded from conducting discovery by any co nduct on the part of Appellees but simply claims she “should have been a fforded additional time by the trial court to complete all aspects of disco very prior to the trial court ruling” on the motion for summary judgment. Id. at 26. However, Appellant has failed to demonstrate how any additio nal discovery could help develop her case or save it from the grant of summa ry judgment. Although not addressed in her brief, Appellant’s co unsel asserted at oral argument on the summary judgment motion that h is client had not been afforded an opportunity to depose the employee who completed the incident report or the medic who tended to Appellant. Notes of Testimony, Argument, 9/11/14 at 13. 6 However, Appellant did not—nor can she—argue

____________________________________________ 5 The pleadings were closed on September 13, 2012, m ore than twenty-one months before Appellees filed their motion for summ ary judgment. Therefore, the prerequisite to the filing of a summ ary judgment motion was satisfied. See Pa.R.C.P. 1035.2.
6 Counsel for Appellees noted in his argument that a ll persons on duty on the day of the incident had been identified in written discovery and the fact (Footnote Continued Next Page)J-A27044-15

- 14 -

that testimony from either witness would shed any l ight on the issue essential to her case, i.e. , that Appellees had notice of the existence of any dangerous condition. As previously stated, neither Appellant nor her boyfriend could identify or describe the “phantom w itness” who, they contend, said there was slush on the floor. Furthe r, the individual who completed the incident report recorded “N/A” in the section designated for identifying witnesses. Counsel’s suggestion that t he unidentified witness could potentially be identified through receipts fr om the Foggy Goggle is implausible at best and would entail what can only be described as a “fishing expedition.” Therefore, we find no abuse of discre tion on the part of the trial court for not ordering additional time for discover y. Appellant takes issue with the trial court’s relia nce on Porro v. Century III Associates , 846 A.2d 1282 (Pa. Super. 2004), in rejecting her prematurity claim. In Porro , the appellant claimed he fell on March 26, 1998, on a soapy liquid substance that was on the f loor of a mall stairwell. Porro filed an amended complaint on March 24, 2000 and was deposed on April 16, 2001. On March 18, 2002, the appellees f iled a motion for summary judgment arguing Porro failed to produce ev idence or testimony to establish that the allegedly dangerous condition re sulted from the appellees’
(Footnote Continued) _______________________ Appellant had not deposed any of those individuals was beyond Appellees’ control. Id. at 17.J-A27044-15

- 15 -

negligence, to establish the property owner had act ual notice of the condition, or to establish the condition existed fo r such a length of time that the owner should have known of it. At oral argument, Porro requested additional time t o conduct discovery on the notice issue. In response, the trial court initially denied summary judgment without prejudice, giving Porro time to co nduct additional discovery. Nothing further transpired until Octobe r 24, 2002, when the appellees placed the case at issue. On January 17, 2003, Porro directed written discovery to the appellees, to which they r esponded. On March 3, 2003, the appellees refiled their motion for summar y judgment. Porro claimed the appellees filed only incomplete and eva sive responses to the discovery requests but acknowledged he did not file additional requests, notices of depositions, or any motion to compel add itional responses. The trial court granted the summary judgment motion. On appeal, this Court affirmed, quoting from the tr ial court: Summary judgment was originally denied because plai ntiff wanted more time for discovery. Inexplicably, howe ver, plaintiff waited over seven months from the denial of summary judgment (and almost three years from the filing of his amen ded complaint) to begin discovery. Even though plainti ff alleges that defendants are improperly withholding discovery, he has not sought court intervention since defendants responde d to his discovery requests on March 28, 2003. Plaintiff ex plains neither how defendants have specifically evaded their duty to provide discovery, nor how this information sought would he lp him. No request to extend discovery has been made. In shor t, plaintiff has shown neither materiality nor due diligence wit h respect to such information, as required by Kerns v. Methodist Hospital , 393 Pa. Super. 533, 574 A.2d 1068 (1990).J-A27044-15

- 16 -

Id. at 1284-85 (quoting Trial Court Opinion, 8/13/03, a t 6). We acknowledge that the facts and timeline in Porro differ from those in the case before us—most notably in that the trial court originally denied the motion for summary judgment without prejudice a nd granted Porro’s request for additional time to undertake discovery. However, we find no abuse of discretion on the part of the trial court for entering summary judgment instead of granting additional time for di scovery, not because Appellant did not request additional discovery time , but rather because Appellant has failed to explain how any additional discovery could help develop her case or save it from the grant of summa ry judgment. Therefore, we reject Appellant’s assertion that the grant of summary judgment was premature. Appellant’s second claim f ails for lack of merit. We find no error of law or abuse of discretion in t he trial court’s grant of summary judgment in favor of Appellees and again st Appellant. Therefore, we shall not disturb the trial court’s o rder. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. ProthonotaryJ-A27044-15

- 17 -

Date: 12/21/2015