Appeal from the Order entered February 3, 2012 in the Court of Common Pleas of Lawrence County, Civil Division, at No: 10784 of 2010, C.A..
The opinion of the court was delivered by: Strassburger, J.:
BEFORE: BENDER, DONOHUE, and STRASSBURGER,*fn1 JJ.
OPINION BY STRASSBURGER, J.:
James and Delores Longwell (the Longwells) appeal from the order of February 3, 2012 which granted summary judgment in favor of Joseph and Beth Giordano (the Giordanos) and C.J. Long Paving Company (C.J. Long). We reverse in part, affirm in part, and remand for further proceedings consistent with this opinion.
The trial court summarized the relevant facts as follows:
Prior to December 2008, [the Longwells] had lived at the Valleyview Estates apartment complex for approximately 20 years - 10 years at their present apartment, and 10 years previously in another apartment in the complex. [Mr. Longwell] testified that the driveway had been repaired two years before his fall. However, from the evidence now of record and the pleadings it appears that the most recent repaving had been performed in the summer of 2008, approximately six months before the accident.
During the summer of 2008, [the Giordanos] engaged C.J. Long to repave the driveways and parking areas of the apartment complex. [The Longwells] did not give any direction to C.J. Long regarding leveling of the asphalt and surrounding yard.
[Mr. Longwell] testified that, after the repaving, at least in nice weather, he had traversed the driveway that he traversed the night of the accident. [Mr. Longwell] was familiar with the asphalt and where it started and ended and the grass began and was aware that there was a drop-off.
On a weekend in December, 2008, [the Longwells'] son, Randy, was visiting his parents. Before leaving, Randy wanted to check the oil in his vehicle, and for that purpose, had parked in the turnaround area of the driveways because the location was more level and would enable a more accurate reading.
On the night of December 27th or 28th, 2008, sometime between 6:00 and 8:00 p.m., Randy decided to perform the oil level check. [Mr. Longwell] decided to assist by holding a flashlight to illuminate the dipstick. Randy and [Mr. Longwell] left the apartment and began walking down the driveway toward Randy's vehicle in the turnaround area. [Mr. Longwell] was carrying a flashlight that he intended to use to provide light for the oil level reading.
[Mr. Longwell] stated that it was "pitch black" when he left the apartment and began his walk down the driveway [and] that he believed there was a hazardous condition, but that he choose to proceed in the darkness.
There were light fixtures at intervals along the driveway. However, the light post on one side of the turnaround, where Randy's vehicle was parked, had been knocked down several years before and never replaced and a light post on the other side of the turnaround had been inoperable for several years. Although the two light fixtures at the turnaround circle were inoperable, they had been in that condition for many years, a condition of which [Mr. Longwell] was aware.
As he walked down the apartment complex's driveway, [Mr. Longwell] turned on the flashlight to illuminate the way, since he wanted to ensure that the flashlight was operable for the purpose of illuminating the dipstick.
At some point, Randy returned to the apartment to retrieve a wrench or pliers. [Mr. Longwell] continued to walk down the driveway and did not check to see whether he was close to the edge of the asphalt. [Mr. Longwell] stated that he thought he had left a "margin of safety" from the driveway's edge, but that he misjudged his position and that his shoe caught on the edge of the asphalt causing him to fall.
[Mr. Longwell] was aware that the difference in elevation was a hazard and dangerous. He thought he knew exactly where the edge of the driveway was, that he thought he had left himself a margin of safety, but that he was wrong. [Mr. Longwell] did not know exactly where he fell but marked the general location on a photo. Randy found his father lying "right on the edge of the blacktop on his side." Randy drew a stick figure on a photo showing where he found his father.
According to [the Longwells'] reference to the deposition testimony, Randy estimated the drop-off as approximately 8 inches.
[Mrs. Longwell] testified, apparently from conversation with a neighbor, that the drop-off at places may have been 7 inches. The drop-off was worse in the driveway. There was not much of a distinction between the surface of the driveway and the grass in the circle area. The difference in elevation was in the driveway.
Trial Court Opinion, 2/8/12, at 5-8 (citations omitted).
The Longwells filed a complaint against the Giordanos, alleging negligence, on May 26, 2010. On November 9, 2010, the Longwells filed an amended complaint also alleging negligence on the part of C.J. Long. On August 12, 2011, the Giordanos and C.J. Long filed motions for summary judgment. In their motion, the Giordanos claimed that Mr. Longwell had assumed the risk of his conduct, and that the Giordanos owed Mr. Longwell no duty of care. In its motion, C.J. Long also argued that it owed no duty to the Longwells, and that the Longwells had failed to produce sufficient evidence that C.J. Long's alleged negligence was the proximate cause of Mr. Longwell's injury. On February 3, 2012, the ...