J-A14003-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KIM OLIVER P/N/G OF KATAYA 

HENDERSON, A MINOR,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

BOULEVARD VENTURES, LLC, D/B/A 

ROLLING THUNDER,

Appellee No. 2796 EDA 2016

Appeal from the Order Entered July 15, 2016

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 150400824

BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED August 8, 2017

Appellant, Kim Oliver, as parent and natural guardian of Kataya 

Henderson, a minor, appeals from the trial court’s order entered July 15, 

2016, granting Appellee’s, Boulevard Ventures, LLC, d/b/a Rolling Thunder, 

motion for summary judgment. We affirm. 

The trial court summarized the procedural and factual background of 

this case as follows:

A. PROCEDURAL BACKGROUND

On June 23, 2015, [Appellant] Kim Oliver and minor ... 

Kataya Henderson filed their Third Amended Complaint 

setting forth a premises liability claim against [Rolling 

Thunder]. Discovery was completed in April 2016, and 

[Rolling Thunder] timely filed a Motion for Summary 

Judgment on April 20, 2016. [Ms. Oliver] filed a response 

to [Rolling Thunder’s] [m]otion on May 20, 2016, and this 

[c]ourt issued an order granting [Rolling Thunder’s] 

[m]otion and dismissing all of [Ms. Oliver’s] claims on July 
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12, 2015.[1] [Ms. Oliver] filed a Motion for Reconsideration 

on July 29, 2016, raising new arguments under the 

Restatement (Second) of Torts Sections 323 and 324. This 

[c]ourt issued an Order denying [Ms. Oliver’s] [m]otion on 

August 11, 2016. [Ms. Oliver] timely filed this appeal, and 

submitted a Statement of Matters pursuant to Pa.R.A.P. 

1925(b) on September 2, 2016. 

B. FACTUAL BACKGROUND

On December 20, 2013, [Ms.] Oliver took her daughter, 

[Ms.] Henderson, to Rolling Thunder Skating Center. [Ms. 

Henderson] was 7 years old at the time, and had never 

been to [Rolling Thunder’s] skating rink before. According 

to deposition testimony, [Ms. Henderson] was an 

inexperienced skater who had only used roller skates on a 

few occasions around her home.

Upon arriving at the skating rink, Ms. Oliver rented [Ms. 

Henderson] a pair of traditional “quad skates,” or roller 

skates with four wheels. Because [Ms. Henderson] was 

not an experienced skater, Ms. Oliver also rented a rolling 

walker for her daughter. Rolling walkers are shaped like a 

triangle with the bottom side missing, and have a wheel at 

the front and a wheel on each side. The skater places the 

walker in front of herself and holds onto the bars at the top 

of the rolling walker in order to create more stability while 

skating. When Ms. Oliver rented the rolling walker, there 

were no signs instructing patrons on the use of the 

walkers, and no instructions or tutorials were offered by 

the skating center staff.

Shortly after arriving at the skating center, [Ms. 

Henderson] attempted to exit the rink and enter a 

carpeted seating area. The rolling walker became stuck 

between the wood floor of the skating rink and the carpet 

of the seating area, causing [Ms. Henderson] to trip. As 

she fell to the ground, her leg became entangled in the 

roller, and [Ms. Henderson] suffered a distal tibia fracture. 

According to deposition testimony, Ms. Oliver did not 

____________________________________________

1 The trial court’s order granting summary judgment in favor of Rolling 

Thunder was dated July 12, 2016, but it was not entered on the docket until 

July 15, 2016. 
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notice anything defective about the rolling walker when 

she went to her daughter’s side after the fall.

Trial Court Opinion (TCO), 12/14/2016, at 1-2 (internal citations omitted). 

As mentioned supra, after the trial court granted Rolling Thunder’s 

motion for summary judgment and denied Ms. Oliver’s subsequent motion 

for reconsideration, she filed a timely notice of appeal on August 11, 2016. 

She also timely complied with the trial court’s instruction to file a concise 

statement of errors complained of on appeal. Herein, she raises a single 

issue for our review:

I. Whether the trial court abused its discretion and otherwise 

committed an error of law when it improperly granted 

[Rolling Thunder’s] Motion for Summary Judgment when a 

genuine issue of material fact exists as to [Rolling 

Thunder’s] duty to warn?

Ms. Oliver’s Brief at 6. 

Initially, we set forth our standard of review:

Our standard of review of an appeal from an order granting 

summary judgment is well settled: “Summary judgment may be 

granted only in the clearest of cases where the record shows 

that there are no genuine issues of material fact and also 

demonstrates that the moving party is entitled to judgment as a 

matter of law.” Whether there is a genuine issue of material fact 

is a question of law, and therefore our standard of review is de 

novo and our scope of review is plenary. When reviewing a 

grant of summary judgment, we must examine the record in a 

light most favorable to the non-moving party.

Newell v. Montana West, Inc., 154 A.3d 819, 821-22 (Pa. Super. 2017) 

(internal citations omitted). 

Referencing Section 343 of the Restatement (Second) of Torts, Ms. 

Oliver first contends that “Ms. Henderson was a business invitee on [Rolling 
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Thunder’s] property as she was there to skate....” Ms. Oliver’s Brief at 10.2 

She argues that “[i]nexperienced skaters, particularly those at the age of 

seven, cannot be expected to know to protect themselves against the 

dangers of walkers that they were never instructed to use[,]” and, 

consequently, “it’s reasonable to expect [Ms. Henderson] would not discover 

the danger herself.” Id. at 12. Thus, “[i]f [Rolling Thunder] knows or 

should know that the danger poses a risk[, it is] required to warn those 

[who] may be in danger.” Id. Specifically, she asserts that personnel at 

Rolling Thunder “could have posted signs around the facilities. They could 

have handed out instruction sheets. They could have required patrons who 

used the walker to watch an instructional video. [They] could have given 

patrons lessons before allowing them onto the rink with the walkers.” Id. 

Instead, Ms. Oliver claims that Rolling Thunder’s corporate “designee 

testified repeatedly that [there] are no instructions, no warning[s], no signs, 

etc. regarding the safe use of the walkers.” Id. We discern no merit in this 

argument. 

Section 343 of the Restatement (Second) of Torts provides the 

following: 

A possessor of land is subject to liability for physical harm 

caused to his invitees by a condition on the land if, but only if, 

he

____________________________________________

2 We note that Ms. Oliver cites to the portion of Summers v. Giant Food 

Stores, Inc., 743 A.2d 498, 506 (Pa. Super. 1999) (en banc), that sets 

forth Section 343. See Ms. Oliver’s Brief at 10-11. 
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(a) knows or by the exercise of reasonable care would 

discover the condition, and should realize that it involves 

an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the 

danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them 

against the danger.

Restatement (Second) of Torts § 343.3 “Whether a duty exists under a 

particular set of facts is a question of law. The duty owed to a business 

invitee is the highest duty owed to any entrant upon land.” Campisi v. 

Acme Markets, Inc., 915 A.2d 117, 119 (Pa. Super. 2006) (citations and 

quotation marks omitted). We note that “[a]n invitee must demonstrate 

that the proprietor deviated from its duty of reasonable care owed under the 

circumstances. Thus, the particular duty owed to a business invitee must be 

determined on a case-by-case basis.” Id. at 119-20 (citations omitted). 

In granting Rolling Thunder’s motion for summary judgment, the trial 

court explained: 

____________________________________________

3 Rolling Thunder points out that:

[Ms. Oliver’s] negligence action sounds in premises liability and 

[Ms. Oliver] specifically den[ies] that [she is] pursuing a product 

liability claim. Nonetheless, [Ms. Oliver] do[es] not allege any 

defective condition of the property itself and instead argue[s] 

that [Ms. Henderson’s] injuries were caused by “the hazardous 

conditions of the walker.” However, for the purposes of this 

appeal, [Rolling Thunder] will assume, arguendo, that the 

applicable duty standards are those relating to premises liability.

Rolling Thunder’s Brief at 8 n.1 (internal citations omitted). 
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A plaintiff may put forward expert testimony to establish the 

duty that is owed. In negligence actions, “expert 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) (internal 

quotations omitted). However, expert testimony is necessary 

“where formation of an opinion on a subject requires knowledge, 

information, or skill beyond what is possessed by the ordinary 

juror.” Id. Such testimony is generally mandated to establish 

negligent practice in a profession or industry, particularly when 

the practice relates to safety and warnings. See, e.g. ̧Young v. 

Com., Dep’t of Transp., ... 744 A.2d 1276, 1279 ([Pa.] 2000) 

(requiring expert testimony to determine if warning was 

adequate); Tennis v. Fedorwicz, ... 592 A.2d 116, 117 ([Pa. 

Cmwlth.] 1991) (requiring expert testimony to aid jury in 

determining if highway was safe). 

In the instant case, it is undisputed that [Ms.] Oliver and [Ms.] 

Henderson were business invitees at the time [Ms. Henderson] 

was injured. [Rolling Thunder] therefore generally owed [Ms. 

Oliver and Ms. Henderson] a duty to warn against known 

dangers, as well as those that might be discovered with 

reasonable care. However, [Ms. Oliver] still bear[s] the burden 

of presenting evidence that establishes the extent of the duty in 

light of the facts and proves that this duty was breached.

In response to [Rolling Thunder’s] Motion for Summary 

Judgment, and included in their own Motion for Reconsideration, 

[Ms. Oliver] attach[es] three pieces of evidence. First, [Ms. 

Oliver] provide[s] deposition testimony from Ms. Oliver and [Ms. 

Henderson], which establish that [Ms. Henderson] was an 

inexperienced skater, that the rink staff provided the walker to 

Ms. Oliver upon her request and without any additional 

instructions, and that Ms. Oliver did not see anything wrong with 

the walker when she looked at it after [Ms. Henderson] fell. 

Second, [Ms. Oliver] reference[s] the deposition testimony of Mr. 

Slaven, [Rolling Thunder’s] corporate designee, who confirmed 

that [Rolling Thunder’s] staff did not provide instructions to 

patrons who rented rolling walkers. Finally, [Ms. Oliver] 

provide[s] a black and white photo of a rolling walker similar to 

the one used by [Ms. Henderson]. 
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None of the aforementioned evidence establishes either the 

particular duty owed by [Rolling Thunder] under these specific 

circumstances, or the breach of that duty. For example, [Ms. 

Oliver] did not produce evidence that the rolling walker was, in 

itself, a dangerous instrumentality; that it is common practice in 

the roll[er] skating industry to provide instructions or warnings 

as to the use of rolling walkers; or that the use of rolling walkers 

is not within the “general risk” usually encountered by an 

individual at a skating rink. Moreover, these issues are beyond 

the ken of the average juror, as a lay person would be unlikely 

to know anything about the relative safeness of rolling walkers 

or standard practices within the skating industry. [Ms. Oliver] 

could have offered expert testimony as to these issues, but 

failed to do so. [She has] merely alleged that [Ms. Henderson] 

went to a skating rink, used an instrumentality often used by 

others under those circumstances, and then fell....

TCO at 5-6 (original brackets and some citations omitted; emphasis in 

original). 

We observe no error of law or abuse of discretion in the trial court’s 

analysis. Moreover, Ms. Oliver proffers no authority to convince us 

otherwise. Accordingly, we conclude that the trial court properly granted 

summary judgment to Rolling Thunder in light of Ms. Oliver’s failure to 

demonstrate that Rolling Thunder breached a duty owed to Ms. Henderson.

Next, Ms. Oliver avers that Rolling Thunder breached a duty imposed 

under Section 323 of the Restatement (Second) of Torts. Ms. Oliver’s Brief 

at 14. She purports that “in providing the walker to [Ms. Henderson] 

explicitly because she was an inexperienced skater, [Rolling Thunder] 

undertook to ‘render services to another[,]’ which [Rolling Thunder] should 

have recognized as ‘necessary for protection of the other’s person,’ in 

accordance with the Restatement.” Id. at 13. She insists that “[i]t is clearly 
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a jury question as to whether [Rolling Thunder’s] failure to exercise due care 

in doing so (1) increased the risk of the harm which the assistance provided 

was designed to prevent, or (2) the harm which was suffered occurred due 

to Ms. Henderson[’s] reliance on [Rolling Thunder’s] properly providing such 

assistance.” Id. 

At the outset, we agree with the trial court that this issue has been 

waived by Ms. Oliver. See TCO at 7 n.2. Our cursory review of the record 

confirms that Ms. Oliver raised her argument regarding Section 323 for the 

first time in her motion for reconsideration. See Rabatin v. Allied Glove 

Corp., 24 A.3d 388, 391 (Pa. Super. 2011) (“While the issue was included in 

the subsequently filed motion for reconsideration, issues raised in motions 

for reconsideration are beyond the jurisdiction of this Court and thus may 

not be considered by this Court on appeal.”) (citations omitted). 

Additionally, Ms. Oliver does not direct us to anywhere in the record where 

she had previously raised this issue relating to Section 323. See 

Commonwealth v. Williams, 980 A.2d 667, 671 (Pa. Super. 2009) 

(“Pursuant to the Rules of Appellate Procedure, [the a]ppellant must specify 

where in the record this issue was preserved. In his brief, [the a]ppellant 

does not indicate where the issue was preserved in the trial court.... 

Consequently, we are constrained to deem this issue waived.”) (citations 

omitted). Thus, we determine that this issue is waived. 
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Notwithstanding, even if this issue were not waived, we would still 

determine that this argument is meritless. Section 323 of the Restatement 

(Second) of Torts sets forth:

One who undertakes, gratuitously or for consideration, to render 

services to another which he should recognize as necessary for 

the protection of the other’s person or things, is subject to 

liability to the other for physical harm resulting from his failure 

to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of 

such harm, or

(b) the harm is suffered because of the other’s reliance 

upon the undertaking.

Restatement (Second) of Torts § 323. 

In support of her argument, Ms. Oliver relies almost exclusively on an 

unpublished case, Xiaowu Li v. Beulah Presbyterian Church, 726 WDA 

2014, unpublished memorandum (Pa. Super. filed Mar. 10, 2015). However, 

with limited exceptions not applicable here, “[a]n unpublished memorandum 

decision shall not be relied upon or cited by a Court or a party in any other 

action or proceeding....” Pa. Super. IOP § 65.37. Consequently, we may not 

consider Xiaowu Li. In any event though, we would agree with the trial 

court’s analysis, in which it finds Xiaowu Li easily distinguishable from the 

matter at hand, in that Ms. Oliver provided her daughter with the rolling 

walker, Ms. Henderson had no interaction with Rolling Thunder’s staff, and 

the staff’s help had not been offered and then withdrawn. See TCO at 7 n.2. 

Furthermore, in contrast to the trial court in Xiaowu Li, the trial court in the 

case sub judice explained that it did not “reach its holding by applying the 
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doctrine of assumption of the risk....” Id. As a result, Ms. Oliver would have 

failed to convince us that Section 323 is applicable here. Accordingly, we 

affirm the trial court’s order granting summary judgment to Rolling Thunder. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/8/2017