### J-S47040-16
NON

### -PRECEDENTIAL DECISION - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 ADRIENE HITCHNER

v. ELEANORE BARTELL INTHE SUPERIORCOURT OF PENNSYLVANIA 

### Appellant

Appellee No. 38 MDA 2016 Appeal

### from theOrder Entered December 15, 2015 Inthe CourtofCommon Pleas of

### Schuylkill County Civil Division 

### at No(s): S-52

### -2014
BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J. MEMORANDUM BY LAZARUS, J.: 

### FILED OCTOBER

### 24, 

### 2016 Adriene Hitchner appeals

### from the

### order ofthe CourtofCommon Pleas of 

### Schuylkill County, granting Eleanore 

### Bartell's motion 

### for summary 

### judgment and dismissing Hitchner's 

### complaint with prejudice. Upon careful review, we reverseand remand 

### for

### furtherproceedings. 

### Hitchner was a nurse employed by Lori's Angels home health care services. In the course 

### of her 

### employment, Hitchner 

### regularly provided home health care services to Bartell and her 

### mother, who lived 

### together at 333 Nichols 

### Street in Pottsville. On May 11, 2013, 

### after she had been 

### working for Bartell

### forovertwo months, Hitchnerfell downthe

### front steps of the house as she was leaving to pick up 

### breakfast 

### for Bartell. 

### Although the stepswere 

### moistfrom earlier rain and 

### mist, Hitchnerclaims

### that she did not slip due to 

### moisture. Rather, 

### Hitchner claims 

### that the steps were

### J-S47040-16
"dilapidated and of an uneven 

### height, depth, and 

### width creating an 

### extremelydangerous

### condition[.]" Complaint, 

### 4/14/14, at ¶ 7. On April 14, 2014, Hitchner filed a 

### complaint against Bartell, alleging negligence in connection 

### with the maintenance of the steps. 

### After the pleadingswere closed, Bartell filed a 

### motion 

### for summary

### judgment, which the 

### trial court granted by 

### order dated December 15, 2015. 

### Hitchner filed a 

### timely notice 

### of appeal on January 7, 2016, followed by a 

### court-ordered 

### statementof

### errorscomplained ofon appeal 

### pursuantto Pa.R.A.P. 

### 1925(b). Hitchner raisesthefollowing issues

### forour review:
1. 

### Whetherthe 

### trial court erred as a 

### matter of law by 

### granting 

### [Bartell's] 

### [m]otion for 

### [s]ummary 

### [j]udgment based upon the finding 

### that the record contains 

### insufficient evidence of facts as to causation essential to 

### [Hitchner's] cause 

### of action in negligence? 2. 

### Whetherthe 

### trial court erred as a 

### matter of law by 

### granting 

### [Bartell's] 

### [m]otion for 

### [s]ummary 

### [j]udgment and barring 

### [Hitchner's] negligence claim based upon a 

### condition complained of being open andnotorious despite the 

### fact 

### that [Hitchner], an employee, had to

### encounterthe risk in 

### orderto 

### perform her

### job? Briefof

### Appellant, at 5. We begin by noting our scope and standard or review ofthe 

### grant of 

### summary

### judgment: Our review of the 

### trial court's grant of 

### summary 

### judgment is plenary. 

### Summary 

### judgment is 

### proper where the pleadings, depositions, answers to 

### interrogatories, admissions and 

### affidavits and 

### other materials show 

### there is no genuine issue of 

### material fact and 

### the moving 

### party is 

### entitled to

### judgment as a 

### matter of law. We 

### must view the record in the 

### light most favorable to the opposing 

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

### of material fact in 

### favor of the nonmoving 

### party. We will reverse the 

### trial court's grant of 

# -2-

### J-S47040-16
summary

### judgment only upon an abuse 

### of discretion or 

### error of law. 

### Cresswellv. 

### End, 831A.2d 673, 675 (Pa. Super. 

### 2003) 

### (citation

### omitted). Hitchner 

### first claims 

### that the 

### trial court erred by 

### granting summary 

### judgment based upon its 

### finding 

### that the record contains 

### insufficient evidence as to causation. The 

### trial court concluded 

### that Hitchner's deposition 

### testimony did not establish 

### that the dilapidated condition of the steps caused her to fall because: 

### (1) she stated 

### merely 

### that she had 

### "slipped"on the concrete, and 

### (2) she could not 

### identifythe step uponwhich her fall occurred. Hitchner asserts 

### that the 

### trial court inappropriately disregarded the

### affidavit she 

### submitted in her responseto Bartell's

### summary 

### judgmentmotion in which she

### "clarified" her deposition 

### testimony by 

### stating 

### that she 

### "slipped onthe

### first/second concretestep (depending on how a step is defined or 

### whether it qualifies as a step) which crumbled or 

### otherwise gave way under my 

### foot." Plaintiff's 

### Affidavit, 

### 11/2/15 at ¶ 3. 

### Hitchner argues 

### that she produced ample evidence, in 

### the form of 

### deposition 

### testimony, photographs of the accident site and her 

### affidavit to establish 

### "the extremely poor 

### condition of the steps, and how such a 

### condition may have led to 

### [her] 

### fall[.]" Brief ofAppellant, at 14. Upon review, we agree 

### that the 

### trial court erred in its 

### determination regarding causation, even 

### though it

### properlydisregarded Hitchner's 

### affidavit. Generally, to 

### state a cause of action 

### for negligence, a 

### plaintiff must allege facts which establish the breach 

### of a legally recognized 

### duty or 

### obligation of the 

### defendant 

### that is causally connected to actual damages suffered bythe 

### plaintiff. 

### Bi/t

## -Rite Contractors, 

### Inc. v. 

### The

### Architectural Studio, [] 866 A.2d 

# -3-

### J-S47040-16
270, 280 

### ([Pa.] 2005). The 

### plaintiff provesthe 

### duty and breach elements by showing 

### that the 

### defendant's act or omission fell below the standard of care and, 

### therefore, increased the risk of harm to the 

### plaintiff. 

### Thierfelder v. 

### Wolfert, 52 A.3d 1251, 1264 (Pa. 

### 2012). Oncethe 

### plaintiff hascarried 

### this burden, s 

### /he must 

### further demonstrate the causal connection between the breach of a 

### duty of care and the harm alleged: 

### that the increased 

### risk was a 

### substantial 

### factor in bringing 

### about the resultant harm. 

### Scamponev. 

### HighlandParkCare

### Ctr., LLC, 57 A.3d 582, 596 (Pa. 

### 2012). "Although it is clear 

### that a 

### jury is not 

### permitted to reach a 

### verdict based upon guess or 

### speculation, it is 

### equally clear 

### that a

### jury may draw inferences

### from all ofthe evidence 

### presented." 

### Firstv. 

### ZemZem Temple, 686A.2d 18, 21 (Pa. Super. 

### 1996), citing 

### Cade v. 

### McDanel, 679 A.2d 1266 (Pa. Super. 1996). 

### It is not necessary, under Pennsylvania law, 

### that every fact or circumstance 

### point 

### unerringly to 

### liability; it is enough 

### thatthere be 

### sufficient facts 

### for the 

### jury to say reasonably 

### that the preponderance favors 

### liability.

. . . The facts are 

### for the

### jury in any case 

### whether based upon 

### direct or 

### circumstantial evidence where a reasonable conclusion can be 

### arrived at which would place 

### liability on the defendant. 

### It is 

### the 

### duty of 

### [the] plaintiffs to produce 

### substantial evidence which, if believed, 

### warrants the 

### verdict they seek. The 

### right of a 

### litigant to have the

### jury pass upon 

### thefacts is notto be

### that a reasonable man 

### might properly find 

### either way. A

### substantial part of

### the 

### right to 

### trial by

### jury is taken away when 

### judges withdraw close cases 

### from the 

### jury. Therefore,when a 

### party who has the burden of

### proof relies upon 

### circumstantial evidence and inferences reasonably 

### deductible 

### therefrom, such evidence, in 

### order to 

### prevail, must be adequate to establish the conclusion 

### sought and 

### must so 

### preponderate in 

### favor of

### that conclusion as to 

### outweigh in the mind of the 

### fact- 

### finder any 

### other evidence and reasonable inferences 

### therefrom which are 

### inconsistent

### therewith. 

### Id. (citations

### omitted).


## -4

### J-S47040-16

In 

### First, the 

### plaintiff was 

### attending a wedding reception, where she fell 

### while dancing on a 

### temporary dance 

### floor supplied and installed by the defendants. In her 

### deposition, the 

### plaintiff testified 

### that she fell because 

### "the heel 

### of her shoe slipped on the dance

### floor's wooden surface, and 

### that she observed 

### that the dance 

### floor had a section which was 

### lighter in color than the 

### other areas 

### of the 

### floor." 

### Id. at 20. 

### Additional 

### testimony also established 

### that portions of the 

### floor were discolored, slippery, and raised, but 

### that plaintiff's fall occurred 

### three to 

### four feet away 

### from those areas. Defendants moved 

### for summary

### judgment on the basis 

### that, due to her location when she 

### fell, the slippery or raised areas of the 

### floor could not have caused 

### plaintiff's fall. The

### trial courtagreed,

### finding 

### thatplaintiffcould not 

### identify the reason she fell or 

### that the identified hazards on the 

### floor caused her tofall. On appeal, 

### this Court reversed,finding 

### thatthe 

### plaintiff had produced 

### sufficient circumstantial evidence 

### from which a 

### jury could reasonably infer 

### that a 

### slippery or raised area 

### of the 

### floor caused her to fall. The Court noted: "Negligence may be established by 

### circumstantial evidence, and where a 

### plaintiff describesthe 

### nature and location of a 

### fall, it is 

### for the

### jury to 

### determinewhether a 

### defect which existed in the 

### small area described was the cause of the 

### injury, and 

### [the question of

### whether] the defect was of

### sufficient consequenceto charge

### defendants with negligence

. . . is 

### forthe

### jury." Frazier v. 

### City

## ofPittsburgh, [] 15 A.2d 

### 499, 500 ([Pa. 

### Super.] 1940)



# ... [I]n avoiding 

### summary

### judgment [plaintiff] "need notnegate all 

### other possible causes 

### of an occurrence,

. . . or prove 

### with mathematical 

### certainty, to 

### the exclusion of 

### other possibilities, 

## -5

### J-S47040-16


### that an occurrence could 

### only have been caused in one 

### manner consistent with 

### [the defendants'] 

### liability."

### Agriss v. 

### Roadway Express, 

### Inc., [] 483 A.2d 456, 466 ([Pa. 

### Super.] 1984) 

### (citations 

### omitted). 

### Id. (emphasis added in

### First). Similarly, here, we conclude 

### that, even 

### without considering Hitchner's 

### affidavit,'therewas 

### sufficient evidence inthe record 

### fromwhich a

### jurycould reasonably have 

### inferred 

### that the dilapidated condition of the steps caused 

### Hitchner to fall and 

### injure herself. In her deposition 

### testimony, Bartell 

### admitted 

### that the concrete steps were 

### "worn," "uneven," "broken," and "messed 

### up." Bartell Deposition,

### 4/20/15, at 24, 25, 33. Based on

### this, and 

### viewing the evidence in the 

### light most favorable to 

### Hitchner as the nonmoving 

### party, 

### Cresswell,

### supra, a

### jury could have reasonably inferred 

### that the damaged 

### condition of the steps caused 

### Hitchner to slip and fall as she



### ' This Court has 

### repeatedly declined to find an abuse of 

### discretion where a 

### trial court discounts 

### affidavits in which an opposing 

### party contradicts prior deposition 

### testimony in an 

### effort to 

### overcome 

### summary 

### judgment. See 

### Stephens v. 

### Paris Cleaners, 

### Inc., 885 A.2d 59 (Pa. Super. 

### 2005) (no abuse of 

### discretion in 

### grant of 

### summary 

### judgment where 

### trial court disregarded 

### affidavit 

### that contradicted earlier deposition 

### testimony); 

### Gruenwald v. 

### Advanced Computer

### Applications, 

### Inc., 730 A.2d 1004 (Pa. Super. 1999) 

### (trial court may disregard 

### affidavit sworn in response to 

### summary 

### judgment motion when it 

### directly contradicts fact and 

### court therefore finds it not 

### wholly credible); 

### Lucera v. 

### Johns

### -Manville Corp., 512 A.2d 661 (Pa. Super. 1986) (no abuse 

### of discretion by 

### trial court in 

### disregarding 

### affidavit where 

### affidavit was not 

### "wholly credible

### "); 

### Taylor v. 

### Tukanowicz, 435 A.2d 181 (Pa. Super. 1981) (

### "Entry of 

### summary 

### judgment is 

### proper where

. . . the evidence relied upon by the 

### plaintiff is 

### inherently incredible. "). 

### Accordingly, the court was 

### within its 

### discretion to disregard Hitchner's 

### inconsistent

### affidavit. 

## -6

### J-S47040-16

descended. 

### Accordingly, the 

### trial court erred in concluding 

### that there was 

### insufficientevidence ofcausation to

### overcome summary

### judgment. Hitchner also challenges the 

### trial court's determination 

### that her claim
was barred becausethe condition ofthe steps wasopen and obvious and, as such, Bartell did not owe a 

### duty to Hitchner. Hitchner argues 

### that her 

### employment required 

### that she use the steps and 

### that there was no 

### alternative route by which she could 

### enter Bartell's home. 

### Hitchner asserts 

### that Bartell should have

### anticipated the harm 

### that befell her and, 

### thus, may be held liabledespitethe open and obvious condition. We agree.2 Pursuanttothe 

### Restatement (Second) 

### ofTorts § 343A, 

### [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, unlessthe possessor should 

### anticipate the harm despite such knowledge or obviousness. Restatement (Second) 

### ofTorts §

### 343A(1). Comment

### fto section 343Aprovides as

### follows:

2 We note 

### thatthe 

### trial court did not engage in any 

### meaningful analysis of this issue, 

### limiting itsdiscussion to

### thisconclusory

### statement nearthe end of its 

### opinion: Secondly, 

### Defendant asserts and we agree 

### that even if 

### Plaintiff could describe precisely

### what caused thefall,the condition ofthe steps was open and obvious and 

### familiar to her. As such, 

### Defendant did not owe a 

### duty to 

### Plaintiff under these circumstances. TrialCourtOpinion, 

### 12/15/15, at 8.


## -7

### J-S47040-16
There are, however, cases in which the possessor 

### of land can and should 

### anticipate 

### that the dangerous condition will cause physical harm to the invitee 

### notwithstanding its known or obvious danger. In such cases the possessor is not relieved 

### of the 

### duty of reasonable carewhich he owes to the invitee

### for his 

### protection. This 

### duty may require him to warnthe invitee, or to 

### take 

### other reasonablestepsto 

### protect him, against the knownor obvious 

### condition or 

### activity, if the possessor has reason to expect 

### that the invitee will nevertheless suffer physical harm.



# ... Such reason may

# ... arise wherethe possessor has reason to expect

### thatthe invitee will proceed to 

### encounterthe known or obvious danger because to a reasonable man in his position the advantagesofdoing so would 

### outweightheapparent risk. 

### Restatement (Second) 

### ofTorts § 343A, 

### commentf. Here, 

### Hitchner's 

### employment required herto access 

### Bartell's home to 

### perform herduties as a homecare nurse. The stepswerethe only means to
access the residence. 

### Bartell's deposition 

### testimony demonstrates

### that she
was aware of the 

### dilapidated state of the steps; accordingly, she should have 

### anticipated 

### that the dangerous condition 

### they created would cause physical harm to Hitchner. Moreover, because the steps were the sole
means 

### of accessing 

### Bartell's home,3 Bartell should have expected 

### that Hitchnerwould have no choice but to make use of

### them, despite the known and obvious danger, because to a reasonable person in 

### Hitchner's position, i.e., a nurse whose 

### job required her to care 

### for Bartell in her home, the

3 Bartell 

### testified at her deposition 

### that Hitchner could have used the neighbor's steps to access her porch. However, by her own admission, doing so would have required Hitchner to climb over a 

### banister when she reached thetop ofthe steps. Bartell Deposition, 

### 4/20/15, at 32. Moreover, Hitchner 

### testified 

### that Bartell never told her she could use the neighbor's steps. 

### Hitchner Deposition,

### 4/13/15, at 19. 

## -8

### J-S47040-16
advantages of using the steps would 

### outweigh the apparent risk. 

### See 

### id. Accordingly, under section 343A 

### of the Restatement, Bartell may be held liableto 

### Hitchnerdespitethe open and obviouscondition ofthe steps. Order 

### vacated; case remanded 

### for 

### further proceedings in accordance 

### withthe dictates ofthis 

### memorandum. Jurisdiction relinquished.
Judgment Entered.


## J:seph D. 

### Seletyn, Prothonotary

Date: 

### 10/24/2016



## -9