J-A24033-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERICKA O'LEARY 

Appellant

v.

FEDERAL REALTY INVESTMENT 

TRUST

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 267 EDA 2021

Appeal from the Order Entered January 20, 2021

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

No(s): No. CV-2018-009839

ERICKA O'LEARY 

Appellant

v.

POSITANO CONSTRUCTION, INC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 268 EDA 2021

Appeal from the Order Entered January 20, 2021

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

No(s): No. CV-2019-004147

BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED NOVEMBER 29, 2021

The central issue in these two consolidated appeals is whether the Court 

of Common Pleas of Delaware County (trial court) properly granted summary 

judgment in favor of a landowner and a snow-removal company who were 

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* Retired Senior Judge assigned to the Superior Court.
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alleged to be negligent in a slip-and-fall incident. The plaintiff, Ericka O’Leary

(O’Leary), contends that her tort claims against Federal Realty Investment 

Trust (FRIT) and Positano Construction, Inc. (Positano) should not have been 

dismissed because there existed genuine issues of material fact for a jury to 

resolve. Finding no merit in O’Leary’s appellate grounds, we affirm the two 

summary judgment orders under review.

I.

On the afternoon of March 2, 2018, O’Leary began walking from her 

place of employment in the Lawrence Park Shopping Center to her vehicle in 

the nearby parking lot that was part of the premises. FRIT owned the property 

and it had contracted with Positano to plow snow accumulated at that location. 

On the morning of the date in question, the area received rain. Later in the 

day, from about noon until 8:30 p.m., the area received about four inches of

snow. Positano began plowing the snow at about 1:30 p.m. and continued to 

do so until early the next morning.

In her complaint and subsequent deposition, O’Leary alleged that when 

she walked toward the parking lot at about 4:30 p.m., she began slipping on

“snow/ice,” causing her to fall. Once she had fallen, she had difficulty getting 

up because she “kept slipping and slipping and slipping.” O’Leary Deposition, 

12/19/2019, at p. 31. O’Leary stated that she had not noticed the ice because 

plowing in that area had turned it black. See id. at pp. 27-28. It was also 

undisputed that it was snowing at the moment that O’Leary fell, and that she 
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was “soaking wet” due to her contact with the “water, the snow or the ice.” 

Id. at pp. 26, 33, 83. O’Leary submitted photographic and video evidence to 

corroborate the fact that it had been snowing at the time of the incident.1

O'Leary claimed that FRIT and Positano were liable for her fall because 

they had failed to exercise reasonable care in allowing a dangerous condition 

to exist on the property. FRIT and Positano both moved for summary 

judgment, asserting that they were not liable for O’Leary’s fall as a matter of 

law because the incident had occurred during an ongoing snowstorm. They 

argued that under the “hills and ridges” doctrine, a party in control of land

only has a duty of care to invitees to remove slippery conditions once a 

snowstorm has ceased. Agreeing with FRIT and Positano, the trial court 

granted their motions for summary judgment.

O’Leary moved for reconsideration of the summary judgment orders and 

the trial court granted it. In her supplemental briefing, O’Leary attempted to 

distinguish the circumstances of her case from those in cases in which the hills 

and ridges doctrine was applied, such as Carrender v. Fitterer, 469 A.2d 

120 (Pa. 1983). She argued that the doctrine was inapplicable because her 

fall resulted from black ice that formed due to Positano’s snow plowing

operations and not solely from a natural accumulation of snowfall. On 

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1 FRIT attached as an exhibit to its summary judgment motion photos of the 

area taken by one of O’Leary’s co-workers, Lorraine Gray, immediately after 

O’Leary left the area. See O’Leary Deposition, 12/19/2019, at p. 27.
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reconsideration, the trial court affirmed the orders granting summary 

judgment, emphasizing that the hills and ridges doctrine bars O’Leary’s 

negligence claims because it was still snowing at the time of her fall. O’Leary 

then filed the instant timely appeal.

II.

Although O’Leary raises six issues on appeal, all of those appellate 

claims turn on whether the trial court erred in resolving contested facts and 

in applying the “hill and ridges doctrine.”

A.

Summary judgment is appropriate “whenever there is no genuine issue 

of any material fact as to a necessary element of the cause of the action or 

defense which could be established by additional discovery or expert report.” 

Pa.R.C.P. 1035.2.2 “Facts and reasonable derivative inferences are generally 

considered in the light most favorable to the non-moving party, and doubts 

are resolved against the moving party.” Lance v. Wyeth, 85 A.3d 434, 449 

(Pa. 2014).

A plaintiff in a negligence action must prove that the defendant “owed 

a duty of care to the plaintiff, that duty was breached, the breached resulted 

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2 An order granting summary judgment “will be reversed only where it is 

established that the court committed an error of law or abused its discretion.” 

Kowalski v. TOA PA V, L.P., 206 A.3d 1148, 1156 (Pa. Super. 2019) 

(quoting Abrams v. Pneumo Abex Corp., 981 A.2d 198, 203 (Pa. 2009)).
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in the plaintiff’s injury, and the plaintiff suffered an actual loss or damages.” 

Collins v. Philadelphia Suburban Dev. Corp., 179 A.3d 69, 73 (Pa. Super. 

2018) (quoting Merlini ex rel. Merlini v. Gallitzin Water Auth., 980 A.2d 

502, 506 (Pa. 2009)). Land possessors are liable for physical harm suffered 

by an invitee if:

[the land possessor] knows of or reasonably should have known 

of the condition and the condition involves an unreasonable risk 

of harm, [the possessor] should expect that the invitee will not 

realize it or will fail to protect [himself] against it, and the 

[possessor] fails to exercise reasonable care to protect the invitee 

against the danger.

Id. at 74 (quoting Estate of Swift v. Northeastern Hosp. of Philadelphia,

690 A.2d 719, 722 (Pa. Super. 1997)).

In the context of a weather event such as a snowstorm, the hills and 

ridges doctrine “protects an owner or occupier of land from liability for 

generally slippery conditions resulting from ice and snow where the owner has 

not permitted the ice and snow to unreasonably accumulate in ridges or 

elevations.” Morin v. Traveler's Rest Motel, Inc., 704 A.2d 1085, 1087

(Pa. Super. 1997).

Pennsylvania courts have long held that there is no “absolute duty” on 

the part of a landowner to keep an area free of snow and ice at all times 

because it “would require the impossible in view of the climactic conditions.” 

Rinaldi v. Levine, 176 A.2d 623, 625 (Pa. 1962). “[T]here is no liability 

created by a general slippery condition on the surface of a parking lot. It must 

appear that there were dangerous conditions due to ridges or elevations, 
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which were allowed to remain for an unreasonable length of time.” Roland

v. Kravco, Inc., 513 A.2d 1029, 1032 (Pa. Super. 1986).

In sum, an owner or occupier of land has a duty to remove a dangerous 

condition caused by ice or snow within a reasonable time after receiving notice 

of that condition. See Biernacki v. Presque Isle Condo. Unit Owners

Ass'n, Inc., 828 A.2d 1114, 1116 (Pa. Super. 2003); see also Carrender,

469 A.2d at 124-25 (explaining that a landowner has a duty to protect invitees

from unknown, unforeseeable hazards on the premises, but not from hazards

which are known or obvious to the invitees). Where a snow removal entity is

alleged to be negligent based on a theory of liability rooted in tort (as Positano 

is here), the entity is protected by the “hills and ridges” doctrine to the same 

degree as a landowner. See Biernacki, 828 A.2d at 1117.

To avoid the application of the hills and ridges doctrine, a plaintiff must

show:

(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; [and] (3) that it 

was the dangerous accumulation of snow and ice which caused 

the plaintiff to fall.

Id. at 1088 (quoting Rinaldi, 176 A.2d at 625).

B.

In the present case, it was undisputed that it began snowing at the 

location of FRIT’s premises at about 8:30 a.m. on March 2, 2018. FRIT hired 
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Positano to plow the snow in the area and the plowing began at about 1:30 

p.m. O’Leary’s slip-and-fall happened at about 4:30 p.m. and she admits that 

it was snowing at that time. The snowstorm did not end until about 8:30 p.m.

These unrebutted facts establish that O’Leary’s fall happened during an 

ongoing winter weather event. As such, the hills and ridges doctrine applies, 

and FRIT and Positano had a duty to take reasonable steps to remove 

dangerous conditions on the property once the snowstorm had ceased. No 

evidence was presented in this case that so much as suggested that FRIT and 

Positano breached that duty. Instead, the evidence shows that they 

attempted to remove snow and ice from the property in due course. O’Leary’s 

testimony established further that the snow or ice she slipped on was not 

visible or apparent, so neither FRIT nor Positano would have had notice that 

an unreasonably dangerous condition existed in the particular spot where she 

fell.

The trial judge properly considered these undisputed material facts 

when applying both the summary judgment standard and the hills and ridges 

doctrine. Accordingly, O’Leary’s tort claims against FRIT and Positano were

precluded as a matter of law, and the orders of summary judgment must 

stand. See Collins, 179 A.3d at 75 (affirming summary judgment against 

plaintiff who slipped during a winter storm event); Biernacki, 828 A.2d at 

1117; Harmotta v. Bender, 601 A.2d 837, 842 (Pa. Super. 1992) 

(“Instantly, a review of the record reveals that generally slippery conditions 
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existed in the community at the time of the appellant-wife’s fall. A layer of 

fresh snow, which had fallen the day of the accident, covered a layer of packed 

snow and ice.”).

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Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2021

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3 To the extent that O’Leary claims she slipped on ice that was not visible or 

covered by snow, summary judgment would still be proper because such a 

condition, arising during an ongoing winter event, would implicate the hills 

and ridges doctrine. See Roland, 513 A.2d at 1032 (affirming summary 

judgment because there was “no indication that there was a dangerous 

condition on the land. Even if a dangerous condition existed, the property 

owner is not liable if it is reasonable for the possessor of land to believe that 

the dangerous condition would be obvious to and discovered by an invitee.”).