Church, A. and D. v. R and K Foods of PA

J-S04014-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANN M. CHURCH AND DONALD : IN THE SUPERIOR COURT OF CHURCH : PENNSYLVANIA : Appellants : : : v. : : : No. 921 MDA 2020 R AND K FOODS OF PENNSYLVANIA, : INC., TDBA "MCDONALD'S" :

Appeal from the Order Entered June 16, 2020 In the Court of Common Pleas of Columbia County Civil Division at No(s): 2019-CV-390-CV

BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J. MEMORANDUM BY OLSON, J.: FILED MARCH 23, 2021

Appellants, Ann M. Church (Church) and Donald Church (Husband) (collectively, Appellants), appeal from the order entered on June 16, 2020, which granted summary judgment in favor of R and K Foods of Pennsylvania, Inc., tdba “McDonald’s” (R and K Foods). Upon review, we affirm.

We briefly summarize the facts and procedural history of this case as follows. On September 8, 2018, Church went to a McDonald’s restaurant located at 10 Briar Creek Plaza in Berwick, Pennsylvania. After purchasing food and nearing an exit, Church slipped and fell, striking her knees, forearm, and elbow. Church subsequently received medical attention that revealed a fracture of her left patella. On March 25, 2019, Appellants filed a two-count complaint against R and K Foods alleging negligence and loss of consortium on behalf of Husband. More specifically, Appellants alleged that R and K Foods

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was negligent for failing to provide a safe environment or to keep the premises safe for business invitees, warn Church of the dangerous condition, make appropriate observations of the dangerous condition, and/or take proper precautions. Complaint, 3/25/2019, at 2-3, ¶13.

On December 9, 2019, R and K Foods filed a motion for summary judgment arguing, “[t]he undisputed facts of record establish that [R and K Foods] warned [Church] of the possibility of wet floors.” Motion for Summary Judgment, 12/6/2019, at *3 (unpaginated), ¶ 11. R and K Foods attached to their motion “surveillance video which demonstrate[d] that [Church] fell directly next to a yellow wet floor sign[.]” Id. at *2, ¶ 4. Moreover, R and K Foods further relied upon Church’s deposition testimony wherein she identified herself after watching the surveillance video, conceded that the floor sign was a warning, and that she should have exercised caution when walking near wet floors. Id. at ¶¶ 5-6.

The trial court granted R and K Foods’ motion for summary judgment by order entered on June 12, 2020. More specifically, the trial court determined:

The facts of this case are clear and undisputed largely because there is a video of the incident. The video shows [Church] walk past a large “Wet Floor” cone on the way to the counter, albeit a dry floor. The video shows that the floor was mopped as [Church] was ordering. The video shows [Church] walk past the cone and slip and fall near the cone on her way from the counter. In answer to a question[,] “Did you exercise any sort of caution or being careful prior to your fall?” [Church] said[,] “No” at a deposition, even though she admitted that a person should “[b]e careful” when he or she sees a cone and a wet floor.

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• • * *

In the case at bar, as a matter of law, [R and K Foods’] actions were reasonably discharged by placing a large “Wet Floor” cone in the area of the wet floor. [Church] walked past the cone and fell.

Order, 6/16/2020, at n.1. Accordingly, the trial court granted relief and entered judgment in favor of R and K Foods. This timely appeal resulted. 1

On appeal, Appellants present the following issue for our review:

Did the trial court err as a matter of law and/or abuse its discretion in granting summary judgment in favor of [R and K Foods] on the issue of whether [Appellants] developed sufficient facts to submit to a jury the question of whether [R and K Foods] provided sufficient notice of a dangerous condition?

Appellants’ Brief at 3.

Appellants contend that the trial court erred as a matter of law or abused its discretion by granting the motion for summary judgment filed by R and K Foods, because Church was not provided sufficient notice of the dangerous condition. More specifically, citing Breznicky v. Kmart Corp., 51 Pa. D. & C.4th 518 (2001),2 Appellants assert, in sum:

the cone in the instant case was insufficient to warn [Church] because it was located approximately five feet from where she slipped and also [R and K Foods] should have known her attention would be drawn elsewhere. The danger was such that [R and K Foods] should have realized that the step it took to warn its invitees of mopping would be inadequate to warn its patrons of ____________________________________________

1 On July 10, 2020, Appellants separately filed a praecipe to reduce judgment and a notice of appeal. On July 16, 2020, the trial court directed Appellants to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellants complied timely on August 6, 2020. On August 11, 2020, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

2 We are not bound by decisions of the Court of Common Pleas, even if directly on point. See Keller v. Mey, 67 A.3d 1, 6 (Pa. Super. 2013).

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the dangerous condition under the circumstances existing at the time. The warning cone was not placed in or on the wet area, the substance on the floor was not discernible upon visual inspection, and the area where [Church] walked appeared to be open to customers whose attention would likely be focused on the menu of items they intended to purchase and not on the warning cone. In addition, because she had already walked through the area previously and the floor was dry, [Church] had no reason to believe that the area would be dangerous when she exited. However, while she was waiting for her food, an employee mopped the floor behind [Church] several feet from where the sign was placed.

Appellants’ Brief at 11-12.

Our standard of review of a challenge to an order granting summary judgment is as follows:

We may reverse if there has been an error of law or an abuse of discretion. Our standard of review is de novo, and our scope plenary. We must view the record in the light most favorable to the nonmoving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Furthermore, in evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. 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.

Carlino E. Brandywine, L.P. v. Brandywine Vill. Ass'n, 197 A.3d 1189, 1199–1200 (Pa. Super. 2018) (original brackets omitted).

Based upon review of the certified record, the parties' appellate briefs, the trial court's opinion, and applicable law, we conclude that the trial court

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thoroughly and accurately addressed the issue Appellants raise on appeal and we discern no abuse of discretion or error of law in ruling on their claims. Here, the trial court determined that a possessor of land owes a business invitee a duty to warn of danger, R and K Foods warned Church before she encountered the danger, and Church admittedly failed to heed the warning or exercise caution despite knowing to do so. Our review of applicable law and the facts of record support the trial court’s conclusion. Consequently, we affirm on the basis of the trial court’s opinion issued on August 11, 2020 and adopt it as our own. The parties are instructed to attach a copy of the trial court opinion to all future filings regarding this appeal.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/23/2021

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Circulated 03/15/2021 04:46 PM 37b

ANN M. CHURCH and DONALD IN THE -COURT OF COMMON CHURCH, PLEAS FOR THE 26TH JUDICIAL. DISTRICT., CO LUMB IA.COUNTY Plaintiffs BRANCH; -PENNSYLVANIA 'CIVIL.ACTION - LAW ❑S.

R AND K FOODS .OF FENNS.YLVANIA, .IN.C.., .TBA CASE NO., 390 OF 2019 "MCDONAI,D.' S",

'Deft Inddnt

APPEREANCES.. T'.`K. CORBA, ESQI3 _ F—Attorn'e.y'" •r ``P_1 aintiff.s REBECCA CANTOR, .ESQUIRE, Attorney for Defendant L.1 AUGUST .11, 2020. JAMES, J..

OPINION . PURSUANT TO PA : R.: A .P ...1.92 5 (a).

Plaintiff filed this personal i- hju:ry case based on a slip

and fall cause of 'a.c.ti.on at .defendant's M.acDo. : n.ald,'s restaurant..

After the. - conclusion of discovery, defendant filed a summary judgment motion.. This court granted the summary judgment motion and.-dismissed plaintiffs' claims. Plaintiffs appealed.

In their Concise Staterne'h plaintiffs .cite eight ($:) alleged errors. however, all .eight: arguments are in the nature of argument. This court wi'1l.addres.s whether the court abused 'ts discretion or committed an e,rror o .law in dismissing plaintiffs' negligence claim...

The record contains .a video showing. the—incident—fairly clearly. Based on that v.idea and other parts ofthe record, including deposition statements.., and based on: the law, this

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38b court determined that this incident as an accident and, as.we. tell juries, "the mere..happening of an. accident is not 'evidence of negliqen:ce'." Zilka v. Sanctis Constr., Ind., 409 Pa,. 396, 599, 186 A..2d 897, 898, (Pa. 1962)..

"The trial court must. accept as true all.weIl-pleaded facts in the non-moving party's pleadings, and give to .him or to her: the benefit of all. reasonable inferences to'be d.ra.wn,theref.rom. - .. 0•ummary judgment should not-b 'onto- urxless, the case iz clear :and free from doubt. .... A grant Hof summary judgment is ._•p:roper where the pleadings; depositions, answers to int.erroga•_orie.s and admissions on file support -the lower•court's .conclusion.that'no genuine issue of*material fact exists and: that the moving .part.y is entitled (to] .judgmen.t as..a matter of law. .'`• Dansa:k v. Cameron Coca-Cola Bottling Co., 703.A.2d. 4.89,. 492., (Pa.. Super.. 1997)(citations - omitted).

"The landowner's duty of protect on.tow.ard a'-business Visitor i's the highest duty .owed to an- entrant upnn the.land. The mile ... places the .possessor of land. under :an affirmative duty to protect the business vis for not only against dangers. of Which he knows .but also against th6se'which .with reasonable care he might discover. The occupier of the premises ordinarily owes the business visl'Eor 'not only the duty not to injure him by unreasonably dangerous conduct.while.he is upon the premises., but also the affirmative duty to use reasonable care to. discover.

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39b. -unreasonably dangerous conditions of the premises and .either put the premiseb •in a reasonably •safe condition for use in a manner consistent with the purpose of the invitati..o..n or' warn him : of the. 'danger."' Treadway v•. Ebert Motor Co.., 292 Pa. Super. 41, 49, 436 A-.2d 994; 998 (Pa. Super. 198'1) (emphasis .provided) .

The facts in this ca'se • are'•clear.and undisputed largely because there is a video of the incident. The video shows _p4a-intiff (Ann Church) jalk past -•a,._I&•3 ee. "Wet Floor" cane an'. fh.P -viay to. the. counter, albeit a dry floor. The video -shows.-an. employee, with a mop and. buc.ke.t., walk ....front of..p.laintzf:fs. as

they•ars e -ordering. The employee px:oceeds•to'mop the floor at

t'he. location :of the "Wet Floor" sign. The employee leaves•ttiat area but the large. "'Wet Floor"-sign remains. The video shows plaint'if.f walk past the sign and sTip•and.fall near the sign%cozie on. her : wa.y from the countex:. In answer to a .question "Did you exercise •any sort of caution or beng:careful prior to your fall'?" Plaintiff said ".too" :at a deposition. She: had

admitted that a . person should "Be careful" when he or: she sees a

.cone and a wet . floor. Plaintiff Ann Church depo. Tr. Pp. 32- 3.3.

Spills happen at fast food restaurants._and th.e owrier of. the premises must :mop up -those :spill's .to make the walking area

i.e.,,put the premises in. a. reasonably safe. condition:.. Defendant did just .that by .mopping the floor and warning plaintiffs of the wet-and mopped floor with.:a large warning

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4ob sign. Aclmittedl.y plaintiff Ann 'Church did :not: exercise any caution daspite Beeirig the- 'sin. Although the floor was mopped after- plaintiff first walked past the sign, the sign.. provided continuing notice. to be. .careful and was a: reasonable. warning of danger under the. `circumstances, as .a matter of law.

The appeal should -b6 dismissed..

BY