J-E01008-15

 2015 PA Super 217

 

TRACY TRUAX IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

TANYA P. ROULHAC, WILDWOOD 115, 

INC., AND SILVIO VITIELLO

Appellee No. 1797 EDA 2013

Appeal from the Order Entered June 12, 2013

In the Court of Common Pleas of Monroe County

Civil Division at No(s): 9958 Civil 2010

BEFORE: BOWES, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J., 

OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.

OPINION BY MUNDY, J.: FILED OCTOBER 07, 2015

Appellant, Tracy Truax, appeals from the order entered June 12, 2013, 

granting summary judgment in favor of Wildwood 115, Inc. (Wildwood) and 

Silvio Vitiello (collectively, Appellees). After careful review, we reverse and 

remand for proceedings consistent with this opinion.

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

This negligence case arises out of an accident in which a minivan driven by 

Tanya Roulhac hit Truax on the sidewalk outside of Madd Anthony’s Bar 

(Madd Anthony’s). Madd Anthony’s was one of the businesses located in a 

150-foot wide building that is parallel to, and set back from, Route 115 in 

Effort, Monroe County, Pennsylvania. Vitiello was the sole owner of the 

commercial parcel that contained both the building housing Madd Anthony’s 
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and a common parking lot, shared by all tenants. Complaint, 10/14/10, at ¶ 

7. Wildwood was the corporate operator of two of the building’s tenants, 

Madd Anthony’s, and the neighboring La Roma Pizza. Id. at ¶ 5. 

Wildwood’s tenancy included nonexclusive use in common of the parking lot, 

located in front of the building. Wildwood’s Motion for Summary Judgment, 

6/28/12, at ¶ 5. A concrete sidewalk for pedestrians runs the full length of 

the front of the building. Vitiello’s Motion for Summary Judgment, 6/19/12, 

at Exhibit 1. There are two extensions, or “bump outs,” on the front of the 

building, which protrude out onto the sidewalk and almost completely block 

the walking area such that a pedestrian maneuvering around them is 

redirected toward the parking lot. Truax’s Answer to Wildwood’s Motion for 

Summary Judgment, 8/30/12, at Exhibit E, Summary of Traffic and Site 

Engineering Findings, 8/30/12, at 5.

On March 4, 2009 at approximately 10:30 p.m., Truax and her fiancé, 

Craig Foulkes, arrived at Madd Anthony’s. Complaint, 10/14/10, at ¶ 8. As 

the two walked along the sidewalk toward Madd Anthony’s, Roulhac drove 

her minivan into one of the head-on parking spaces directly in front of, and 

perpendicular to, the sidewalk. Id. at ¶ 10. When Roulhac failed to stop, 

the minivan jumped the five-inch tall concrete wheel stop and struck Truax, 

pinning her to the building. Id. At that location, the parking lot was level 

with the sidewalk; there was no curb. Truax’s Answer to Wildwood’s Motion 

for Summary Judgment, 8/30/12, at Exhibit E, Summary of Traffic and Site 
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Engineering Findings, 8/30/12, at 3. The only barrier between the parking 

lot and sidewalk was the horizontal, five-inch tall concrete wheel stop. Id.

After the accident, a helicopter transported Truax to Lehigh Valley 

Hospital Center, where she was treated for multiple injuries to her left leg. 

Complaint, 10/14/10, at ¶ 13. Even after the completion of treatment, 

Truax walks with a limp and has several permanent scars. Id.

Roulhac fled the scene of the accident. Id. at 11. Police later 

apprehended her and charged her with driving under the influence after a 

blood test revealed a BAC of 0.10 and positive results for cocaine and THC. 

Wildwood’s Motion for Summary Judgment, 6/28/12, at ¶ 3. Roulhac, 

however, was released on bail and fled, and Truax has been unable to locate 

her to serve her with the complaint in this case. Id. at ¶ 6.

On October 14, 2010, Truax filed a complaint, asserting a claim for 

negligence against Roulhac, claims for premises liability and a dram shop act 

violation against Wildwood, and a claim for premises liability against Vitiello. 

Complaint, 10/14/10, at ¶¶ 1-34. On November 16, 2011, Truax filed a 

stipulation voluntarily dismissing the dram shop claim against Wildwood. In 

June 2012, after the completion of discovery, Vitiello and Wildwood filed 

separate motions for summary judgment. Appellees both contended that 

the harm was not foreseeable because Vitiello was unaware of any similar 

incidents of motor vehicles jumping the wheel stops. Vitiello’s Motion for 

Summary Judgment, 6/19/12, at ¶ 11; Wildwood’s Motion for Summary 
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Judgment, 6/28/12, at ¶ 11. Moreover, they argued they were under no 

duty to install any other types of barriers to separate the parking lot from 

the sidewalk. Vitiello’s Motion for Summary Judgment, 6/19/12, at ¶¶ 16-

28; Wildwood’s Motion for Summary Judgment, 6/28/12, at ¶ 15. 

Specifically, Vitiello maintained that his duty as a possessor of land is 

coextensive with the building and zoning codes, and he discharged that duty 

because the wheel stops complied with the applicable zoning ordinance 

governing commercial off-street parking. Vitiello’s Motion for Summary 

Judgment, 6/19/12, at ¶¶ 16-28.

On October 3, 2012, the trial court issued an order granting summary 

judgment in favor of Appellees and entering judgment accordingly. Trial 

Court Order, 10/3/12. In its opinion, the trial court reasoned, “a possessor 

of land is not the insurer of the safety of his patrons and must only take 

reasonable measures to control the conduct of third persons.” Trial Court 

Opinion, 10/3/12, at 7 (citation omitted). The trial court further opined as 

follows.

No Pennsylvania court has held that a business 

owner was negligent for failing to install vertical 

bollards[1]in addition to horizontal wheel stops and 

we are not inclined to do so here. [Appellees] have 

complied with all applicable building codes and 

zoning ordinances, and to impose a duty upon 

property owners above and beyond these standards 

____________________________________________

1 Bollards are short vertical posts made of concrete or steel that can be 

arranged to obstruct the passage of vehicles.
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would defeat the purpose of having such standards 

in the first place. It would not be wise to allow juries 

to determine building standards on an ad-hoc basis 

as this would result in confusion and inconsistency 

across the Commonwealth. Further, there is no 

evidence that a similar curb-jumping incident had 

ever occurred on [Vitiello’s] property. We find that 

the possibility that a vehicle driven by an intoxicated 

individual might drive over a concrete wheel stop 

and strike a pedestrian so remote and unforeseeable 

that it would be oppressive to hold that [Appellees] 

should have taken measures to prevent such an 

occurrence.

Id. at 8. Truax filed a motion for reconsideration of this decision, which the 

trial court denied on October 5, 2012. On October 16, 2012, Truax filed a

timely notice of appeal to this Court. On June 6, 2013, a panel of this Court 

quashed the appeal because the action against Roulhac was still pending. 

See Truax v. Roulhac, 82 A.3d 456 (Pa. Super. 2013) (unpublished 

judgment order at 1). 

Thereafter, on June 10, 2013, Truax filed with the trial court a petition 

for the entry of a final order as to fewer than all parties pursuant to 

Pennsylvania Rule of Appellate Procedure 341(c). Consequently, on June 12, 

2013, the trial court entered a final order pursuant to Rule 341(c), 

determining that an immediate appeal would facilitate resolution of the 

entire case and that its October 3, 2012 order granting summary judgment 

was a final order. On June 19, 2013, Appellant filed a timely notice of 
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appeal to this Court.2 A panel of this Court issued a memorandum affirming 

the grant of summary judgment. See Truax v. Roulhac, 1797 EDA 2013 

(Pa. Super., filed 9/24/2014) (unpublished memorandum, withdrawn). The 

Honorable Mary Jane Bowes filed a dissenting memorandum. See id. 

(Bowes, J., dissenting) (unpublished dissenting memorandum, withdrawn). 

Truax filed a petition for reargument en banc, which this Court granted on 

December 4, 2014. Superior Court Order, 12/4/14 (per curiam). After the 

filing of supplemental briefs, this matter is ready for disposition.

On appeal, Truax presents two issues for our review, which we have 

reordered for our discussion, as follows.

[1.] Did Vitiello and Wildwood owe a duty to take 

reasonable measures to protect business 

invitees from the foreseeable risk of curbjumping vehicles?

[2.] Did the trial court err in holding as a matter of 

law that Vitiello and Wildwood had taken 

reasonable precautions to protect business 

invitees from vehicle intrusion onto a bar’s 

sidewalk?

Truax’s Amended Brief at 3. Because these issues arise in the context of the 

trial court’s order granting summary judgment in favor of Appellees and 

dismissing Truax’s claims, the following standard and scope of review applies 

to our consideration of this case. 

____________________________________________

2 Truax and the trial court have complied with Pennsylvania Rule of Appellate 

Procedure 1925.
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As has been oft declared by [our Supreme] 

Court, “summary judgment is appropriate only in 

those cases where the record clearly demonstrates 

that there is no genuine issue of material fact and 

that the moving party is entitled to judgment as a 

matter of law.” Atcovitz v. Gulph Mills Tennis 

Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002); Pa. 

R.C.P. No. 1035.2(1). When considering a motion 

for summary judgment, the trial court must take all 

facts of record and reasonable inferences therefrom 

in a light most favorable to the non-moving party. 

Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 

195 (Pa. 2007). In so doing, the trial court must 

resolve all doubts as to the existence of a genuine 

issue of material fact against the moving party, and, 

thus, may only grant summary judgment “where the 

right to such judgment is clear and free from all 

doubt.” Id. On appellate review, then,

an appellate court may reverse a grant of 

summary judgment if there has been an error 

of law or an abuse of discretion. But the issue 

as to whether there are no genuine issues as 

to any material fact presents a question of law, 

and therefore, on that question our standard of 

review is de novo. This means we need not 

defer to the determinations made by the lower 

tribunals.

Weaver v. Lancaster Newspapers, Inc., 926 A.2d 

899, 902-03 (Pa. 2007) (internal citations omitted). 

To the extent that this Court must resolve a question 

of law, we shall review the grant of summary 

judgment in the context of the entire record. Id. at 

903.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (parallel 

citations omitted).

“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 
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summary judgment.” Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1223 (Pa. 

Super. 2012) (citations omitted), appeal denied, 65 A.3d 412 (Pa. 2013). 

Further, “failure of a non-moving 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).

In order to hold a defendant liable for negligence, the plaintiff must 

prove the following four elements: (1) a legally recognized duty that the 

defendant conform to a standard of care; (2) the defendant breached that 

duty; (3) causation between the conduct and the resulting injury; and (4) 

actual damage to the plaintiff. Ramalingam v. Keller Williams Realty 

Group, --- A.3d ---, 2015 WL 4927797, at *5 (Pa. Super. 2015). The trial 

court explained that it granted summary judgment because it concluded as a 

matter of law that there was no duty because the harm was unforeseeable. 

Trial Court Opinion, 10/3/12, at 8. Further, the trial court declared that 
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even if there was a duty, Appellees fulfilled it by complying with all 

applicable building codes and zoning ordinances. Id. 

In her first issue on appeal, Truax asserts that Appellees owed a duty 

to protect her from the foreseeable risk of curb-jumping vehicles. Truax’s 

Amended Brief at 19-20. The level of any duty owed to one present on 

another’s land depends on that person’s status. Cresswell v. End, 831 

A.2d 673, 675 (Pa. Super. 2003) (citation omitted). All the parties agree 

that Appellees owed Truax a duty because she had the status of a business 

invitee of Madd Anthony’s. Truax’s Amended Brief at 13; Vitiello’s 

Supplemental Brief at 15; Wildwood’s Brief at 7. Likewise, the trial court 

found that Appellees owed Truax a duty as a business invitee. Trial Court 

Opinion, 10/3/12, at 5. 

“The duty owed to a business invitee is the highest duty owed to any 

entrant upon land. The landowner is under an affirmative duty to protect a 

business visitor not only against known dangers but also against those which 

might be discovered with reasonable care.” Charlie v. Erie Ins. Exch., 100 

A.3d 244, 253 (Pa. Super. 2014), quoting Emge v. Hagosky, 712 A.2d 315, 

317 (Pa. Super. 1998). Specifically, the duty to protect business invitees 

against intentional or negligent acts of third parties is expressed in Section 

344 of the Restatement (Second) of Torts as follows.

§ 344. Business Premises Open to Public: Acts 

of Third Persons or Animals
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A possessor of land who holds it open to the 

public for entry for his business purposes is 

subject to liability to members of the public 

while they are upon the land for such a 

purpose, for physical harm caused by the 

accidental, negligent, or intentionally harmful 

acts of third persons or animals, and by the

failure of the possessor to exercise reasonable 

care to

(a) discover that such acts are being done 

or are likely to be done, or

(b) give a warning adequate to enable the 

visitors to avoid the harm, or otherwise to 

protect them against it.

Restatement (Second) of Torts § 344; see also Moran v. Valley Forge 

Drive-In Theater, Inc., 246 A.2d 875, 878 (Pa. 1968) (adopting Section 

344). 

Comment f to Section 344 explains the duty to protect business 

invitees against third party conduct arises only if the owner has reason to 

anticipate such conduct.

f. Duty to police premises. Since the possessor is 

not an insurer of the visitor’s safety, he is ordinarily 

under no duty to exercise any care until he knows or 

has reason to know that the acts of the third person

are occurring, or are about to occur. He may, 

however, know or have reason to know, from past 

experience, that there is a likelihood of conduct on 

the part of third persons in general which is likely to 

endanger the safety of the visitor, even though he 

has no reason to expect it on the part of any 

particular individual. If the place or character of his 

business, or his past experience, is such that he 

should reasonably anticipate careless or criminal 

conduct on the part of third persons, either generally 

or at some particular time, he may be under a duty 
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to take precautions against it, and to provide a 

reasonably sufficient number of servants to afford a 

reasonable protection.

Restatement (Second) of Torts § 344 cmt. f. 

Consequently, Appellees owed Truax “a duty owed to any business 

invitee, namely, that [they] would take reasonable precaution against 

harmful third party conduct that might be reasonably anticipated.” 

Paliometros v. Loyola, 932 A.2d 128, 133 (Pa. Super. 2007) (citations 

omitted).

The reason is clear; places to which the general 

public are invited might indeed anticipate, either 

from common experience or known fact, that places 

of general public resort are also places where what 

men can do, they might. One who invites all may 

reasonably expect that all might not behave, and 

bears responsibility for injury that follows the 

absence of reasonable precaution against that 

common expectation. 

Feld v. Merriam, 485 A.2d 742, 745 (Pa. 1984).

Accordingly, as a matter of law, Appellees had a duty to exercise 

reasonable care to protect its business invitees, including Truax, from all 

harmful third party conduct that Appellees reasonably anticipated due to 

either the place or character of the business, or Appellees’ past experience. 

See Restatement (Second) of Torts § 344; Paliometros, supra. 

Specifically, in this case, if it was reasonably foreseeable that a vehicle 

operated by a third party would encroach on the sidewalk, then Appellees 
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had a duty to exercise reasonable care to protect its business invitees from 

that harm. 

The record before the trial court revealed Truax introduced sufficient 

evidence from which the jury could conclude that the harm was foreseeable. 

Specifically, Truax presented the expert report of James D’Angelo, a 

Professional Engineer and the principal and founding partner of 

Transportation Engineering and Construction, Inc. Truax’s Answer to 

Wildwood’s Motion for Summary Judgment, 8/30/12, at Ex. E, Summary of 

Traffic & Site Engineering Findings, at 1. D’Angelo examined the parking lot 

outside of Madd Anthony’s to determine how the conditions there 

contributed to the accident and Truax’s injuries. Id. During the course of 

his investigation, D’Angelo observed signs that the two “bump outs” of the 

building, which encroach out onto the sidewalk, have been hit by vehicles 

“because either the curb stop is not set back far enough to prevent the 

overhang of a vehicle from hitting the building or the parking maneuver was

performed at a higher and potentially uncontrollable speed.” Id. at 5. He 

also noted that four painted, concrete post bollards had been installed to 

protect a well casing on the southeastern corner of the property. Id. at 6. 

Based on his inspection, D’Angelo concluded “that the owner was aware of 
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measures which would have increased pedestrian safety while on the 

sidewalk.” Id. at 8.3

____________________________________________

3 Appellees now contend that D’Angelo’s report could not support a prima 

facie case of negligence as a matter of law because he did not express his 

opinion to “a reasonable degree of engineering standards” nor did he identify 

the relevant standards. Vitiello’s Supplemental Brief at 7-15; Wildwood’s 

Supplemental Brief at 3-6. First, we note that “[i]n negligence actions, 

[e]xpert testimony is not required where the matter under investigation is so 

simple, and the lack of skill or want of care so obvious, as to be within the 

range of the ordinary experience and comprehension of even 

nonprofessional persons.” Ovitsky v. Capital City Econ. Dev. Corp., 846 

A.2d 124, 126 (Pa. Super. 2004) (citations and internal quotation marks 

omitted). Here, a jury would be capable, even without expert testimony, to 

decide whether Appellees took reasonable care to protect its business 

invitees by using common sense notions of safety in evaluating its parking 

lot security measures. See id. (concluding, in case of injury to a business 

invitee due to the criminal conduct of a third party, that lay jurors could 

determine whether the hotel’s security measures were reasonable). Thus, 

Truax could establish a prima facie case that Appellees did not meet the duty 

of care even without accepting D’Angelo’s opinions. 

Moreover, “expert witnesses are not required to use ‘magic words’ 

when expressing their opinions; rather, the substance of their testimony 

must be examined to determine whether the expert has met the requisite 

standard.” Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 155 (Pa. 

2009) (emphasis removed; citation omitted). Here, D’Angelo concluded, 

“Based on my review, it is my professional opinion that the site ... is deficient 

from a[] ... pedestrian protection standpoint.” Truax’s Answer to Wildwood’s 

Motion for Summary Judgment, 8/30/12, at Ex. E, Summary of Traffic & Site 

Engineering Findings, at 8. He also noted that the site could be “brought up 

to standards” by installing a vertical curb of at least five inches and bollards 

to protect pedestrians. Id. Viewed in its entirety, D’Angelo’s report met the 

standard of being expressed to a reasonable degree of engineering certainty.

Finally, the report contained facts and observations, separate from 

D’Angelo’s opinions, which demonstrate a factual issue exists of whether 

Appellees met the standard of care. Therefore, Appellees could not meet 

their burden to show that no genuine issue of material fact exists. See 

Summers, supra. 
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Similarly, Truax provided the affidavit of William Breuer, the owner of 

a strip mall adjacent to the plaza containing Madd Anthony’s. Id. at Ex. D, 

Affidavit of William Breuer, at 1. He stated that 40 years ago, he installed 

bollards between the head-on parking area and the sidewalk in front of his 

strip mall “because [he] understood there was a safety issue with head-on 

parking directly facing a pedestrian walkway.” Id. He observed the four 

bollards protecting the well casing protruding from the ground at Madd 

Anthony’s. Id. He also recalled that years ago, there were large rocks in 

place to separate the Madd Anthony’s parking lot from the sidewalk, but 

“they were removed after a vehicle pushed one of them into the building.” 

Id.

This evidence, viewed in a light most favorable to Truax, would enable 

a reasonable jury to conclude that Appellees had actual or constructive 

knowledge of a foreseeable risk of harm to business invitees walking on the 

sidewalk, and the trial court should not have decided the issue as a matter 

of law. See Young v. Prizm Asset Mgmt. Co., 100 A.3d 594, 602 (Pa. 

Super. 2014) (concluding that summary judgment was not appropriate when 

a business invitee’s evidence created a question for the jury of whether 

defendant had actual or constructive notice of criminal acts of third 

persons); Rabutino v. Freedom State Realty Co., Inc., 809 A.2d 933, 

939-941 (Pa. Super. 2002) (reversing trial court’s order granting summary 

judgment when business invitee presented evidence that would enable a 
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reasonable jury to find the defendant had “actual knowledge of a foreseeable 

risk of harm that went effectively unchecked[]”). Truax presented evidence 

that Appellees were aware or should have been aware of the risk of vehicles 

intruding onto the sidewalk, including the report of D’Angelo and the 

affidavit of Breuer. Accordingly, the fact-finder could conclude that 

Appellees had a duty to exercise reasonable care to protect Truax, as its 

business invitee, from that reasonably foreseeable harm. See Paliometros, 

supra.

We do not agree with the trial court that the risk of a vehicle 

encroaching on a sidewalk is per se unforeseeable as a matter of law.4 Such 

a rule is contrary to the principle of Pennsylvania law that the question of 

foreseeability should be submitted to the jury unless the plaintiff does not 

present evidence on that issue. See, e.g., Alumni Ass’n, Delta Zeta Zeta 

of Lambda Chi Alpha Fraternity v. Sullivan, 535 A.2d 1095, 1098 (Pa. 

Super. 1987) (noting that while the scope of a duty may be limited to 

reasonably foreseeable risks, “[o]nly when the question of foreseeability is 

undeniably clear may a court rule as a matter of law that a particular 

____________________________________________

4 Compare State Farm Fire & Cas. Co. v. Bell, 30 F. Supp. 3d 1085, (D. 

Kan. 2014) (noting that the majority of jurisdictions analyzing the duty to 

protect business invitees “have concluded there is no liability because 

[vehicle incursion] accidents are insufficiently likely as a matter of law” 

before rejecting that approach and holding that the foreseeability of a third 

party’s acts is a question of fact for the jury), quoting Jefferson v. Qwik 

Korner Mkt., Inc., 34 Cal. Rptr. 2d 171, (Cal. Ct. App. 1994), with Alumni 

Ass’n, supra.
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defendant did not have a duty to a particular plaintiff[]”), affirmed, 572 A.2d 

1209 (Pa. 1990), citing Migyanko v. Thistlewaite, 419 A.2d 12, 14 (Pa. 

Super. 1980) and Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 100 

(N.Y. 1928). Summary judgment is inappropriate in premises liability cases 

involving business invitees where the evidence establishes a prima facie case 

that the third party’s accidental, negligent, or intentional conduct was 

reasonably foreseeable to the occupant of the premises. In this case, Truax 

presented evidence that would allow a jury to conclude that the risk of a 

vehicle encroaching on the sidewalk in front of Madd Anthony’s was 

reasonably foreseeable. Therefore, we conclude the trial court erred as a 

matter of law by holding that curb-jumping is per se unforeseeable. See id. 

Accordingly, we reverse the trial court’s grant of summary judgment based 

on the issue of the foreseeability of the harm, because we conclude this 

issue should have been submitted to the jury.

In Truax’s second issue, she contends that the trial court erred by 

concluding that Appellees discharged their duty as a matter of law by 

complying with all applicable building codes and zoning ordinances. Under 

Pennsylvania law, the issue of whether a defendant has breached its duty is 

normally submitted to the jury.

While the existence of a duty is a question of 

law, whether there has been a neglect of such duty 

is generally for the jury. However, the issue of 

whether an act or a failure to act constitutes 

negligence may be removed from consideration by a 

jury and decided as a matter of law when the case is 
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free from doubt and there is no possibility that a 

reasonable jury could find negligence.

Emerich v. Phila. Ctr. for Human Dev., Inc., 720 A.2d 1032, 1044 (Pa. 

1998) (citations omitted).

As discussed above, Appellees had a duty to exercise reasonable care 

to protect its business invitees, including Truax, from all harmful third party 

conduct that Appellees reasonably anticipated. Here, the trial court 

concluded that Appellees met their duty to Truax by complying with all 

applicable building codes and zoning ordinances. Trial Court Opinion, 

10/3/12, at 8 (reasoning “[Appellees] have complied with all applicable 

building codes and zoning ordinances, and to impose a duty upon property 

owners above and beyond these standards would defeat the purpose of 

having such standards in the first place[]”). This is an incorrect statement 

of law. “Compliance with a law or administrative regulation relieves the 

actor of negligence per se, but it does not establish as a matter of law that 

due care was exercised.” Berkebile v. Brantly Helicopter Corp., 281 

A.2d 707, 710 (Pa. Super. 1971) (en banc); accord Mohler v. Jeke, 595 

A.2d 1247, 1251 (Pa. Super. 1991). While a defendant can introduce its 

compliance with law or regulation as evidence of the exercise of due care, 

“[c]ompliance with a legislative enactment or an administrative regulation 

does not prevent a finding of negligence where a reasonable [person] would 

take additional precautions.” Restatement (Second) of Torts § 288C; see 

also Berkebile, surpa (adopting Section 288C). Accordingly, in this case, 
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Appellees’ maintenance of concrete wheel stops in accord with building 

codes and zoning ordinances may be evidence of its exercise of due care, 

but it is not conclusive that Appellees exercised due care as a matter of law. 

Moreover, Truax presented evidence sufficient to enable the jury to 

conclude that a reasonable person would have taken additional precautions. 

Specifically, Truax presented evidence that vehicle incursions onto the 

sidewalk were foreseeable because the bump outs on the building appeared 

to have sustained damage from vehicles striking them in the past. Truax’s 

Answer to Wildwood’s Motion for Summary Judgment, 8/30/12, at Ex. E, 

Summary of Traffic & Site Engineering Findings, at 5. The accident itself, in 

which Roulhac drove her van over a wheel stop onto the sidewalk, shows 

that the wheel stops were not sufficient to impede a vehicle’s progress. 

Moreover, the other vertical bollards on Vitiello’s property established that 

additional precautions were in place to protect a well casing, which it could 

have employed to protect pedestrians from the foreseeable risk of vehicles 

encroaching onto the sidewalk. Id. at 6; Id. at Ex. D, Affidavit of William 

Breuer, at 1. By presenting such evidence, Truax created a question for the 

jury of whether a reasonable person would take additional precautions 

beyond complying with building codes and zoning ordinances. See 

Berkebile, supra; Restatement (Second) Torts § 288C. Therefore, we 

conclude that the trial court erred in deciding that Appellees fulfilled their 

duty to Truax as a matter of law. See Berkebile, supra.
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For these reasons, we conclude that the trial court erred in granting 

summary judgment. Consequently, we reverse the June 12, 2013 order 

granting summary judgment and remand for further proceedings consistent 

with this opinion.

Order reversed. Case remanded. Jurisdiction relinquished.

Judges Bowes, Donohue, Shogan, Lazarus, Olson, Wecht, and Stabile 

join the Opinion.

Judge Jenkins files a Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/7/2015