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Comer v. Boro Developers

May 13, 2010


The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge



On January 29, 2009, Richard and Brenda Comer, husband and wife, filed this personal injury action in the United States Court for the Eastern District of Pennsylvania, invoking diversity jurisdiction. (Doc. 1); see Doc. 2 (reflecting Plaintiffs' filed an amended complaint on February 24, 2009). Presently before the Court is the summary judgment motion of Defendants, Boro Developers, Inc. and Keating Building Group (collectively "Defendants"), filed on April 29, 2010 (Doc. 34) (hereinafter "Def.'s Mot. Summ. J."), Plaintiffs' response (Doc. 35) (hereinafter "Pl. Resp. in Opp'n to Def.'s Mot. Summ. J."), and the supplemental submissions submitted by the Parties on May 7, 2010, (Doc. 36, 37). For the following reasons, Defendants' motion will be DENIED.


In March of 2007, Plaintiff, Richard Comer, was a construction worker employed by the Farfield Company, Inc., which had been retained to renovate the Chester County Prison in West Chester, Pennsylvania. The Prison was owned by the county and Defendant Keating Building Group ("Keating") was the construction manager for the project. (Pl. Resp. in Opp'n to Def.'s Mot. Summ. J., Ex. A.) Defendant Boro Developers, Inc. ("Boro") was the general construction contractor during the period relevant to this case.

On March 19, 2007, Comer slipped and fell on ice on a pathway between Farfield Company, Inc. and Boro's office trailers. See id., Ex. B at 85-87. He alleges that he suffered a serious shoulder and neck injury as a result of the fall. (Doc. 2 ¶ 20.) Plaintiffs contends that, as general construction contractor, Boro was responsible for removing snow from all access roads and "all sites where access is required." (Pl. Resp. in Opp'n to Def.'s Mot. Summ. J., Ex. G.) They further allege that, as construction manger, Keating was responsible for supervising Boro in fulfilling this obligation. See Pl. Resp. in Opp'n to Def.'s Mot. Summ. 4.

Both Defendants now move for summary judgment


Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." The moving party bears the initial burden of demonstrating the absence of a genuine issue of any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has done so, the party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted). Rather, the responding party must "set out specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e)(2). Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial and summary judgment is appropriate. Matsushita, 475 U.S. at 587.


Defendants moves for summary judgment, asserting that the "hills and ridges" doctrine applies to this case and Plaintiff can provide no evidence to satisfy the first two elements of this standard.*fn1 (Def.'s Mot. Summ. J. at 3-5) (citing Rinaldi v. Levine, 176 A.2d 623, 625-26 (Pa. 1962)). Plaintiffs contend that the "hills and ridges" doctrine is inapplicable, but that even if it did apply, a genuine issue of material fact exists as to whether the standard is satisfied. We will deny Defendants' motion in that we conclude that a genuine issue of material fact exists as to whether the "hills and ridges" doctrine applies.

Pennsylvania's "hills and ridges" doctrine shields land owners or occupiers from liability for generally slippery conditions resulting from ice and snow, provided the land owner or occupier had not allowed ice and snow to "unreasonably accumulate in ridges or elevations." Morin v. Traveler's Rest Motel, Inc., 704 A.2d 1085, 1087 (Pa. Super. 1987). If applicable, the doctrine requires that a plaintiff prove that: (1) snow and ice has accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to those traveling thereon; (2) the property owner had actual or constructive notice of the existence of this condition; and (3) the dangerous accumulation of ice and snow caused plaintiffs injuries. Rinaldi v. Levine, 176 A.2d 623, 625 (Pa. 1962).

The doctrine is only applicable, however, in cases where "the snow and ice complained of are the result of an entirely natural accumulation, following a recent snowfall." Bacsick v. Barnes, 234 Pa. Super. 341 A.2d 157, 160 (Pa. Super. 1975); see Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa. Super. 2006). Plaintiffs are not required to prove the presence of "hills and ridges" in cases involving a localized, isolated patch of ice at a time where the conditions in the community are not generally slippery. Tonik v. Apex Garages, Inc., 275 A.2d 296, 298 (Pa. 1971); see Beck v. Holly Tree Homeowners Ass'n, Civ. No. 08-1755, 2010 WL 716493 at *5 (E.D. Pa. Mar. 1, 2010) (applying Pennsylvania law).

Plaintiffs first contends that the "hills and ridges"doctrine does not apply to this case in that Defendants are not owners or occupiers of the Chester County Prison site. (Pl. Resp. in Opp'n to Def.'s Mot. Summ. J. at 5.) They assert that an occupier of land is defined as a "Person in possession . . . . One who has actual use, possession or control of a thing." (Id.) (quoting Marwood Rest Home, Inc. v. City of Philadelphia Tax Review Board, 535 A.2d 281, 284 (Pa. Cmwlth 1987) (citing Redevelopment Authority of Alleghany County v. Stephnanik, 360 A.2d 300, 302 (Pa. Cmwlth 1976)). However, under Pennsylvania law, an independent contractor is generally "in possession of the necessary area occupied by the work contemplated under the contract and his responsibility replaces that of the owner who is, during the performance of the work by the contractor, out of possession and without control over the work or the premises." See Hadar v. Coplay Cement Mft. Co., 189 A.2d 271, 277 (Pa. 1963) (cataloguing cases in support of this ...

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