J-S24031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LISA A. AND KEVIN BARRON IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

ALLIED PROPERTIES, INC. AND

COLONNADE, LLC, AND MAXWELL 

TRUCKING & EXCAVATING

Appellees No. 1638 MDA 2015

Appeal from the Order Entered August 24, 2015

In the Court of Common Pleas of Centre County

Civil Division at No(s): 2013-03544

BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 23, 2016

Appellants, Lisa A. Barron and Kevin Barron, appeal from the order 

entered in the Centre County Court of Common Pleas, granting summary 

judgment in favor of Appellees, Allied Properties, Inc., Colonnade, LLC, and 

Maxwell Trucking & Excavating. We affirm. 

The relevant facts and procedural history of this case are as follows. 

On the afternoon of October 29, 2011, Appellants and their son went to the 

Dick’s Sporting Goods store located at the Colonnade shopping center in 

State College, Pennsylvania, to purchase a jacket. A snowstorm had 

occurred in the area earlier that day. Appellant Mr. Barron drove the 

family’s minivan to the curb in front of the store, where Appellant Ms. Barron 

and her son exited the vehicle. Appellant Ms. Barron followed her son 
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around the minivan onto a snow-covered sidewalk that led to the store 

entrance. While walking on the sidewalk, Appellant Ms. Barron slipped and 

fell. 

Appellants filed a complaint in negligence on September 9, 2013. On 

July 20, 2015, Appellees Allied Properties, Inc., and Colonnade, LLC, filed a 

motion for summary judgment. Appellee Maxwell Trucking & Excavating 

filed a motion for summary judgment on July 21, 2015. The court granted 

summary judgment in favor of all Appellees on August 25, 2015. Appellants 

filed a timely notice of appeal on September 22, 2015. The court ordered 

Appellants to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b), and Appellants timely complied. 

Appellants raise the following issues for our review:

DID THE HONORABLE TRIAL COURT ERR IN FINDING THAT 

[APPELLEES] DID NOT OWE A DUTY TO [APPELLANT MS. 

BARRON] TO PROTECT FROM A DANGEROUS CONDITION 

BECAUSE THE ALLEGED DANGEROUS CONDITION WAS 

OBVIOUS AND AS A RESULT [APPELLANT MS. BARRON] 

ASSUMED THE RISK OF SAID CONDITION WHEN 

TRAVERSING SAME?

DID THE HONORABLE TRIAL COURT ERR IN FINDING THAT 

NO ACTUAL EVIDENCE WAS PRESENTED THAT SNOW AND 

ICE HAD ACCUMULATED IN RIDGES OR ELEVATIONS AS 

TO UNREASONABLY OBSTRUCT TRAVEL?

DID THE HONORABLE TRIAL COURT ERR BY FAILING TO 

CONSIDER EVIDENCE THAT [APPELLEES] WERE AWARE OF 

THE DANGEROUS CONDITIONS AND FAILED TO REMEDY 

SAID CONDITIONS PRIOR TO [APPELLANT MS. BARRON’S] 

FALL?

DID THE HONORABLE TRIAL COURT ERR IN GRANTING 
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SUMMARY JUDGMENT AS A MATTER OF LAW AS THERE 

EXIST[] GENUINE ISSUES OF MATERIAL FACT TO BE 

DECIDED BY THE FACT-FINDER? 

(Appellants’ Brief at 3). 

In their issues combined, Appellants argue Appellees had a duty to 

protect Appellant Ms. Barron from the alleged dangerous condition of snow 

and ice on the shopping center property. Appellants contend the condition 

was not open and obvious because part of the sidewalk was at an angle and 

cuts in the sidewalk underneath the snow allowed ice to form. Appellants 

assert the snow and ice had accumulated in ridges and elevations that 

unreasonably obstructed travel. Appellants claim the court disregarded 

photographic evidence showing a ramped area of the sidewalk and cuts in 

the concrete, which would have allowed the natural creation of hills and 

ridges of ice and snow. Appellants maintain Appellees had actual and 

constructive notice of the alleged dangerous condition and failed to take 

precautionary or remedial measures prior to Appellant Ms. Barron’s fall. 

Appellants conclude the trial court erred in granting summary judgment 

because genuine issues of material fact exist. We disagree. 

Our standard of review with respect to a trial court’s grant of summary 

judgment is as follows:

[W]e apply the same standard as the trial court, reviewing 

all the evidence of record to determine whether there 

exists a genuine issue of material fact. We view the record 

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

all doubts as to the existence of a genuine issue of 

material fact must be resolved against the moving party. 
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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. All doubts as to the existence of a genuine issue 

of a material fact must be resolved against the moving 

party. 

Motions for summary judgment necessarily and directly 

implicate the plaintiff’s proof of the elements of [a] cause 

of action. Summary judgment is proper 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 the cause of action or 

defense which in a jury trial would require the issues to be 

submitted to a jury. In other words, whenever there is no 

genuine issue of any material fact as to a necessary 

element of the cause of action or defense, which could be 

established by additional discovery or expert report and 

the moving party is entitled to judgment as a matter of 

law, summary judgment is appropriate. Thus, a record 

that supports summary judgment either (1) shows the 

material facts are undisputed or (2) contains insufficient 

evidence of facts to make out a prima facie cause of action 

or defense. 

Upon appellate review, we are not bound by the trial 

court’s conclusions of law, but may reach our own 

conclusions. 

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006) 

(internal citations and quotation marks omitted). 

To prevail in a negligence action, a plaintiff must establish the 

defendant “owed a duty of care to the plaintiff, that duty was breached, the 

breach resulted in the plaintiff’s injury, and the plaintiff suffered an actual 

loss or damages.” Merlini ex rel. Merlini v. Gallitzin Water Authority, 

602 Pa. 346, 354, 980 A.2d 502, 506 (2009). A land possessor is liable for 
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physical harm caused to an invitee only if the following conditions are 

satisfied:

[The land possessor] knows of or reasonably should have 

known of the condition and the condition involves an 

unreasonable risk of harm, he should expect that the 

invitee[s] will not realize it or will fail to protect themselves 

against it, and the party fails to exercise reasonable care 

to protect the invitees against the danger.

Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719, 

722 (Pa.Super. 1997), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997) 

(citation omitted). The “mere existence of a harmful condition in a public 

place of business, or the mere happening of an accident due to such a 

condition is neither, in and of itself, evidence of a breach of the proprietor’s 

duty of care to his invitees, nor raises a presumption of negligence.” Myers 

v. Penn Traffic Co., 606 A.2d 926, 928 (Pa.Super. 1992) (en banc), appeal 

denied, 533 Pa. 625, 620 A.2d 491 (1993). 

“There is no absolute duty on the part of a landowner to keep his 

premises and sidewalks free from snow and ice at all times.” Rinaldi v. 

Levine, 406 Pa. 74, 78, 176 A.2d 623, 625 (1962). “There is no liability 

created by a general slippery condition on sidewalks. It must appear that 

there were dangerous conditions due to ridges or elevations which were 

allowed to remain for an unreasonable length of time, or were created by 

defendant’s antecedent negligence.” Id. This Court has summarized “the 

doctrine of hills and ridges” as follows: 

This doctrine provides that an owner or occupier of land is 
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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.

Gilligan v. Villanova University, 584 A.2d 1005, 1007 (Pa.Super. 1991) 

(citations omitted). “Absent proof of all such facts, [a] plaintiff has no basis 

for recovery.” Rinaldi, supra at 79, 176 A.2d at 626 (emphasis in original). 

Instantly, the court reasoned as follows:

The evidence in this case establishes that on the date and 

at the time that [Appellant Ms. Barron] alleges that she 

fell[,] there was a generally slippery condition throughout 

the local community which was a direct result of natural 

accumulation that occurred overnight and earlier that 

same day. No actual evidence has been presented that 

snow and ice had accumulated on the sidewalk in ridges or 

elevations of such size and character as to unreasonably 

obstruct travel. [Appellant] admits that the area in which 

she allegedly fell consisted of only flat and level snow. The 

scenario presented in this case, and the evidence in 

support thereof, goes to the heart of the policy behind the 

“hills and ridges” doctrine. The [c]ourt cannot require 

[Appellees] to subscribe to the impossible burden that 

their sidewalks always be free and clear of ice and snow 

because of the climatic conditions in this hemisphere. 
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(Trial Court Opinion, filed August 25, 2015, at 7-8.) The record supports the 

court’s analysis. Evidence of a recent snowstorm established the existence 

of generally slippery conditions in the community at the time of the incident. 

Appellants were aware of the snowstorm and freshly fallen snow. 

Appellants’ claim that hills and ridges of snow and/or ice had accumulated 

on the sidewalk was negated by Appellant Ms. Barron’s own testimony1that 

all she observed was three to five inches of “flat, level snow.” Appellant Ms. 

Barron further testified that it “felt” like she had slipped on snow and ice but 

gave no description of the alleged ice. Appellants’ photographic evidence 

failed to create a genuine issue of material fact. The photographs did not 

show the actual condition of the sidewalk and snow at the time Appellant Ms. 

Barron fell. Rather, they showed the snow- and ice-free sidewalk eight 

months after the incident. Therefore, the court properly determined 

Appellants failed to produce sufficient evidence to satisfy the first prong of 

the hills and ridges doctrine. See Gilligan, supra; Rinaldi, supra. 

____________________________________________

1 We observe generally that the rule of Borough of Nanty-Glo v. 

American Surety Co. of New York, 309 Pa. 236, 163 A. 523 (1932) 

prohibits summary judgment “where the moving party relies exclusively on 

oral testimony, either through testimonial affidavits or deposition testimony, 

to establish the absence of a genuine issue of material fact except where 

the moving party supports the motion by using admissions of the opposing 

party or the opposing party’s own witness.” First Philson Bank, N.A. v. 

Hartford Fire Ins. Co., 727 A.2d 584, 587 (Pa.Super. 1999) (emphasis 

added). See also Lineberger v. Wyeth, 894 A.2d 141, 149 (Pa.Super. 

2006) (stating appellant’s own witness’ deposition testimony can be used in 

summary judgment proceedings under Nanty-Glo exception). 
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Consequently, regardless of whether the allegedly hazardous condition was 

open and obvious or Appellees had notice of it, Appellants are not entitled to 

relief. See Rinaldi, supra; Gilligan, supra. Based on the foregoing, the 

court properly entered summary judgment in favor of Appellees. 

Accordingly, we affirm. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/23/2016