J-S47040-16 

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

ADRIENE HITCHNER 

v. 

ELEANORE BARTELL 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

Appellant 

Appellee No. 38 MDA 2016 

Appeal from the Order Entered December 15, 2015 

In the Court of Common 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 of the Court of Common Pleas 

of Schuylkill County, granting Eleanore Bartell's motion for summary 

judgment and dismissing Hitchner's complaint with prejudice. Upon careful 

review, we reverse and remand for further proceedings. 

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 for over two months, Hitchner fell down the front steps of 

the house as she was leaving to pick up breakfast for Bartell. Although the 

steps were moist from earlier rain and mist, Hitchner claims that she did not 

slip due to moisture. Rather, Hitchner claims that the steps were 
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"dilapidated and of an uneven height, depth, and width creating an 

extremely dangerous 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 

pleadings were 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 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Hitchner raises the following issues for our review: 

1. Whether the 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. Whether the 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 and notorious despite the fact that [Hitchner], an 

employee, had to encounter the risk in order to perform her job? 

Brief of Appellant, at 5. 

We begin by noting our scope and standard or review of the 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 

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summary judgment only upon an abuse of discretion or error of 

law. 

Cresswell v. End, 831 A.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 identify the step upon which 

her fall occurred. Hitchner asserts that the trial court inappropriately 

disregarded the affidavit she submitted in her response to Bartell's summary 

judgment motion in which she "clarified" her deposition testimony by stating 

that she "slipped on the first /second concrete step (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 of Appellant, at 14. Upon review, we agree 

that the trial court erred in its determination regarding causation, even 

though it properly disregarded 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 by the plaintiff. Bi/t -Rite 

Contractors, Inc. v. The Architectural Studio, [] 866 A.2d 

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270, 280 ([Pa.] 2005). The plaintiff proves the 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). Once the plaintiff has carried 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. 

Scampone v. Highland Park Care 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 of the evidence presented." First v. Zem Zem Temple, 

686 A.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 that there 

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 the facts is not to 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). 

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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 court agreed, finding that plaintiff could 

not identify the reason she fell or that the identified hazards on the floor 

caused her to fall. 

On appeal, this Court reversed, finding that the 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 describes the nature and location of a fall, it is 

for the jury to determine whether 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 consequence to 

charge defendants with negligence . . . is for the jury." Frazier 

v. City of Pittsburgh, [] 15 A.2d 499, 500 ([Pa. Super.] 1940) ... [I]n avoiding summary judgment [plaintiff] "need not negate 

all other possible causes of an occurrence, . . . or prove with 

mathematical certainty, to the exclusion of other possibilities, 

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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,' there was sufficient evidence in the record from which a jury could 

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. 

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descended. Accordingly, the trial court erred in concluding that there was 

insufficient evidence of causation to overcome summary judgment. 

Hitchner also challenges the trial court's determination that her claim 

was barred because the condition of the steps was open 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 liable despite the open and obvious condition. We agree.2 

Pursuant to the Restatement (Second) of Torts § 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, unless the possessor 

should anticipate the harm despite such knowledge or 

obviousness. 

Restatement (Second) of Torts § 343A(1). 

Comment f to section 343A provides as follows: 

2 We note that the trial court did not engage in any meaningful analysis of 

this issue, limiting its discussion to this conclusory statement near the end of 

its opinion: 

Secondly, Defendant asserts and we agree that even if Plaintiff 

could describe precisely what caused the fall, the condition of the 

steps was open and obvious and familiar to her. As such, 

Defendant did not owe a duty to Plaintiff under these 

circumstances. 

Trial Court Opinion, 12/15/15, at 8. 

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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 care which he owes to the invitee for his 

protection. This duty may require him to warn the invitee, or to 

take other reasonable steps to protect him, against the known or 

obvious condition or activity, if the possessor has reason to 

expect that the invitee will nevertheless suffer physical harm. ... Such reason may ... arise where the possessor has reason 

to expect that the invitee will proceed to encounter the known or 

obvious danger because to a reasonable man in his position the 

advantages of doing so would outweigh the apparent risk. 

Restatement (Second) of Torts § 343A, comment f. 

Here, Hitchner's employment required her to access Bartell's home to 

perform her duties as a home care nurse. The steps were the 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 

Hitchner would 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 the top of the 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. 

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advantages of using the steps would outweigh the apparent risk. See id. 

Accordingly, under section 343A of the Restatement, Bartell may be held 

liable to Hitchner despite the open and obvious condition of the steps. 

Order vacated; case remanded for further proceedings in accordance 

with the dictates of this memorandum. Jurisdiction relinquished. 

Judgment Entered. 

J: seph D. Seletyn, 

Prothonotary 

Date: 10/24/2016 

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