Pennsylvania Law

In Aaron Johnson v. Robin Harris-Dent, Civil Action No. 23-00,097, Pennsylvania Court of Common Pleas of Lycoming County denied a Defense Motion for Summary Judgment on basis of the “Hills and Ridges” Doctrine.

In within matter, Plaintiff Johnson alleged injuries from a slip-and-fall on black ice suffered while an invitee on Defendant’s property.  Plaintiff further alleged that his fall occurred on Defendant’s elevated covered front porch near a connecting stairway.  It was undisputed that on the day of the incident, a winter storm created icy conditions on and around Defendant’s property.  It was also undisputed that at the time of incident, the storm had stopped briefly and it started to snow.  A central claim by Plaintiff is that the snow was melting as it landed.

Defendant Harris-Dent moved for Summary Judgment and contended that Plaintiff’s claim was barred by the “Hills and Ridges” Doctrine, which provided that a defendant would not have a duty to remedy snow and ice conditions while a winter weather event was in progress.  Further, Defendant posited Plaintiff’s assumption of risk by arguing that as Plaintiff frequently helped her with snow and ice removal, Plaintiff assumed the risk of slipping and falling because Plaintiff knew or should have known that the area near Defendants’ property was prone to slippery conditions.  Plaintiff counter-argued that the  “Hills and Ridges” Doctrine was inapplicable because the incident did not occur while in the middle of snowing, and that the incident occurred on a specific, localized patch of ice on Defendant’s elevated covered porch.

In its contemplation, the Court noted the “Hills and Ridges” Doctrine “clarified the duty of a possessor of land owes to third parties when there is a dangerous condition on the land caused by ice and snow, because ‘to require that one’s walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions in this hemisphere.”  The Court further articulated a plaintiff’s burden of proof imposed by the “Hills and Ridges” Doctrine when claiming injuries due to a slip-and-fall on ice or snow: “1) [that] snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; 2) that the property owner had notice, either actual or constructive of the existence of such condition; 3) that it was the dangerous accumulation of snow and ice which caused plaintiff to fall.”

The Court noted that the “Hills and Ridges” Doctrine could not apply where the injury resulted from fall on an “isolated, localized patch of ice as opposed to where there are general icy conditions due to recent or continuing inclement weather.”  In the Summary Judgment record, the Court found evidence suggesting that general icy conditions also existed at the time of the fall.

Notwithstanding, the Court found that a genuine issue of material fact relating to the location of the fall precluded Summary Judgment.  Plaintiff alleged that he fell four to five feet into the interior of Defendant’s covered porch, which consisted of a roof, three walls, and an awning.  The Court reasoned that those protection afforded to landowners and possessors under the “Hills and Ridges” Doctrine would not extend to falls sustained inside structures or partially open structures, and that the applicability of the “Hills and Ridges” Doctrine turns on the exact location of fall, a question of fact the Court decisively reserved for a jury.

Pennsylvania practitioners should be advised that the “Hills and Ridges” Doctrine functions more as a narrow exception moreso than as a brightline rule, as its applicability is highly fact-sensitive, and that it does not completely and evenly guard against liability on every inch of a landowner or possessor’s land.

In Pennsylvania, under 75 Pa. C.S. § 1738, an insured with underinsured motorist benefits (“UIM”) can “stack” or multiply these benefits based on the number of vehicles covered by the insurance policy. This statutory system, which protects insured drivers involved in motor vehicle accidents with other drivers who have no insurance coverage or too little insurance coverage, has undergone several changes in recent years. Most recently, in early 2023, the Pennsylvania Supreme Court in Erie Ins. Exch. v. Mione, 289 A.3d 524 (Pa. 2023) clarified the applicability of “household vehicle” exclusions of UIM benefits to the stacking statute.

In Mione, Albert Mione owned a motorcycle insured by Progressive which, due to Mr. Mione’s express waiver, was not insured by UIM coverage. Mr. Mione and his wife Lisa Mione jointly owned a car that was insured by Erie, and their daughter Angela, who lived in their house, also had a policy with Erie, qualifying Albert and Lisa as insureds under both Erie policies. However, the Erie policies both contained “household vehicle” exclusions, which precluded the application of the Erie policies’ UIM coverage for any injuries sustained by an insured when the insured was operating a vehicle not identified as an insured vehicle under either Erie policies. In 2018, Mr. Mione sustained injuries in an automobile accident while operating his motorcycle.

Albert and Lisa submitted claims for UIM benefits to Erie, claiming the UIM coverage in the two Erie policies should be stacked thereby providing them with the total UIM benefits available under their own Erie policy plus the total UIM benefits available under Angela’s policy. Erie denied coverage, stating the “household vehicle” exclusions of both policies precluded such coverage. Erie filed suit with a declaratory judgment action asking the court to uphold its denial of Albert and Lisa’s claim for stacked UIM coverage. Both the Trial Court and the Appellate Court agreed with Erie, holding that the “household vehicle” exclusions were enforceable and unavailable for UIM stacking.

The Supreme Court would ultimately unanimously affirm the Superior Court’s decision. The Court determined that because the insureds waived UIM coverage for the motorcycle policy, they were not entitled to stack the UIM benefits from the Erie policies that contained the “household vehicle” exclusions. Very simply, without UIM coverage on the vehicle involved in the accident, there is nothing on which to “stack” the household vehicle policies. The Supreme Court distinguished this case from a prior case, Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019), which had similar facts, the only difference being that the vehicle involved in the accident was covered by UIM policy. In Gallagher, the Supreme Court ruled that barring an insured from stacking UIM policies that contained “household vehicle” exclusions when the underlying policy provided UIM coverage would serve as a de facto waiver of stacking and thereby violate § 1738 which requires an express waiver for stacking.

The Pennsylvania State legislature is in the process of repealing the entire UIM stacking statutory system. On September 7, 2023, a Pennsylvania State Senator introduced SB 901, which intends to repeal and rewrite the law that provides UIM stacking benefits. Touting the problems brought by confusion in the current stacking system, Senator Chris Gebhard intends the new bill will introduce a more straightforward approach to the purchasing of UIM coverage that establishes a set framework for the purchase of UM/UIM to avoid the complications in analyzing, purchasing, or renewing auto insurance policies. While there are still many steps in the legislative process to go before this bill becomes law, the status of Pennsylvania’s system of stacking UM/UIM coverages will be the focus of insureds, insurers, and Courts for the foreseeable future.

In Heagy v. Burlington Stores, Inc., 2023 U.S. Dist. LEXIS 157151 (E.D. Pa. Sept. 6, 2023) the U.S. District Court for the Eastern District of Pennsylvania denied Defendant store’s Motion for Partial Summary Judgment, which sought punitive damages in a slip and fall case. The case arose from an August 1, 2019 incident in which the Plaintiff entered the Defendant’s store and slipped and fell on a mat. About ten minutes before the Plaintiff fell, an employee of the store also slipped and fell on the same mat. The parties agreed that the mat on which Plaintiff fell was soaking wet at the time of the fall.

Exactly two weeks after the fall occurred, Plaintiff’s counsel sent a letter to the Defendant store requesting the preservation of surveillance video of the incident. Plaintiff’s counsel requested the entire unedited video for a 24-hour period before and a 24-hour period after the incident. In the same request, counsel further advised that destruction of the video would be considered spoliation of evidence.

A week after receiving the letter from Plaintiff’s counsel, the investigating adjuster for the defendant store’s third-party administrator advised Plaintiff’s counsel that 48 hours of footage could not be provided, but assured counsel that the footage would be preserved. Two days prior to this correspondence, the investigating adjuster directed the store to burn surveillance footage capturing 30 minutes before and after the subject slip and fall. This left a collection of footage showing Plaintiff for just 3 minutes before and just 17 minutes after the fall.

The Court ultimately decided that the defendant store was liable for spoliation of evidence through its mishandling of the surveillance footage. In reaching its decision, the Court noted that slip and fall incidents follow predictable patterns, which leave defendants expectant of litigation soon after an incident occurs. Here, Plaintiffs’ counsel unequivocally requested for preservation of the entire unedited video, provided a requested timeline, and advised that failure to preserve would be considered spoliation. According to the Court, the letter should have immediately prompted the store to preserve any potentially relevant evidence within the 48-hour time period.

The surveillance footage evidence could have proved crucial to resolution of several issues like how, when and by whom the hazardous condition was created. Therefore, the Court concluded that the defendant store was liable for spoliating evidence because there were no facts to support an inference that its failure to preserve the requested footage was result of an inadvertence, routine practice, or accident.

The Court also denied Defendant store’s Motion for Partial Summary Judgment. All arguments regarding sanctions for spoliation were considered premature because no trial date had been set and the parties had not submitted proposed jury instructions. The Court granted the parties leave to file appropriate motions for sanctions near the time of trial.

It is clear from this opinion that Courts will consider the evidentiary value of video surveillance footage in slip and fall cases to determine the issue of spoliation. This decision also makes clear and reaffirms that defendants using surveillance systems have a duty to preserve and produce footage in the course of expected litigation.

The Supreme Court of Pennsylvania, in a recent opinion, continued to reject the view that household vehicle exclusions are ipso facto unenforceable. In Erie Ins. Exch. v. Mione, 289 A.3d 524 (Pa. 2023), Albert Mione was injured after being hit by an underinsured vehicle while riding his motorcycle. That vehicle’s driver paid Mione the limits of the policy covering the subject vehicle, but Mione still sought payment through additional coverage. Mione’s motorcycle was insured through Progressive Insurance, but he previously waived underinsured coverage (“UIM”) under that policy prior to the accident in this case. However, Mione and his wife jointly owned a car insured by Erie Insurance. Their daughter lived with them and also owned a car insured by Erie. Both Erie policies included UIM coverage and so Mione sought to recover UIM benefits under those polices.

Despite Mione’s attempts, Erie denied the claims citing the fact that both policies contained household vehicle exclusions. These exclusions state that UIM coverage is not available under the applicable policy for injuries sustained while operating a household vehicle not listed on the policy under which benefits were sought. Erie denied coverage because Mione was riding his motorcycle at the time which was not listed on either Erie policy.

Erie filed a complaint in the Lehigh County Court of Common Pleas seeking a declaratory judgment that it did not have to pay the UIM benefits pursuant to this exclusion. The trial court granted Erie’s motion for judgment on the pleadings citing to Pennsylvania Supreme Court precedent with facts nearly identical to those presented in the instant case. In Eichelman v. Nationwide Insurance Co., 551 Pa. 558 (1998), a person was also injured while riding his motorcycle after being struck by an underinsured driver. The motorcyclist also sought UIM coverage under his parent’s policy as a resident relative since he waived UIM coverage in his motorcycle policy. The UIM carrier denied coverage based upon the household vehicle exclusion, which was ultimately upheld through a series of appeals.

Mione appealed the trial court’s ruling, but the Superior Court upheld the trial court’s ruling. This prompted further appeal to the Supreme Court of Pennsylvania. There, Mione argued that Gallagher v. GEICO Indemnity Co., 650 Pa. 600 (2019) overruled Eichelman. The court dissected both cases and ultimately disagreed with Mione and upheld the trial court’s original decision. Gallagher also involved a person being injured by an underinsured driver while riding a motorcycle. The motorcyclist had UIM coverage with GEICO which also insured two automobiles owned by the injured party with UIM coverage. GEICO paid the motorcyclist UIM coverage but denied additional UIM coverage based on the household vehicle exclusion. The court in Gallagher overruled GEICO’s denial holding that the denial was an attempt to skirt the Motor Vehicle Financial Responsibility Law’s (“MVFRL”) waiving of stacking requirements. Stacking of coverage is allowed unless the insurer specifically waives stacking. The motorcyclist in Gallagher did not waive stacking.

The Supreme Court distinguished Gallagher because Mione did not have UIM coverage on his motorcycle, which meant that the stacking and waiver issues in Gallagher was not relevant in the instant case. Therefore, Gallagher did not undermine Eichelman as applied to the subject facts. The Court upheld Eichelman and upheld the lower court’s ruling in favor of Erie that household vehicle exclusions are not ipso facto unenforceable. The Court’s opinion included a scenario where a person could waive more expensive UIM coverage for a motorcycle knowing the person would be covered by more affordable coverage under a house automobile policy. This would ultimately undermine the cost-containment rationale of the MVFRL.

The Superior Court of Pennsylvania recently reaffirmed the scope of the duty owed by both a landowner and snow removal contractor during an ongoing snow storm. In Sylvester v. Alvin Ziegler Snow Removal, 2022 Pa. Super. Unpub. LEXIS 1524 (Pa. Super. 2022), the plaintiff was injured by snow and ice which fell from the roof of a building as he was leaving work at the Tobyhanna Army Depot. After leaving his home at 6 a.m. on the morning of the incident and commuting for 45 minutes, the plaintiff did not encounter any snow on the roadways. Plaintiff further had no difficulty walking from his truck into work in the light snow that had accumulated on the front sidewalks.

During the workday, heavy snow piled up on the rooftops of plaintiff’s workplace and on the ground below. At the end of his shift at 5 p.m., plaintiff attempted to leave the building, but was not able to open the door more than an inch because it was blocked by snow. He used an ice chopper to push some of the snow out of the way, and after some time was finally able to get the door open enough to exit. When plaintiff exited the building, it was still snowing. The parking area had not been cleared, but the road had been plowed. While plaintiff was descending the three or four steps from the building to the ground, he heard a noise which he knew to be snow falling off the roof. He looked up to see where the noise was coming from, and was struck and knocked down by ice and snow falling from the roof.

Plaintiff testified that he could not say for sure whether there had been snow or ice on the roof before that day’s snowstorm. According to a CompuWeather report, 20 inches of snow fell on the date of the incident, with snowfall occurring from 3:45 a.m. until between 5:30 and 6:30 p.m. In contrast, it had not snowed at all in the week prior to the incident.

At the time of the incident, plaintiff’s employer had a contract with the defendant snow and ice removal contractor. Pursuant to that contract, the defendant was responsible for, among other things, removing snow and ice from the roof surfaces at the depot. Defendant’s owner testified that on the day of the storm, fourteen of his employees worked to remove snow at the depot, which was their only job for the day. However, he did not have sufficient manpower to inspect the roofs of the buildings due to the heavy snow. He testified that he would have needed 250-300 people to adequately clear all of the roof surfaces given the severity of the storm. He began work at 7:00 a.m. and worked approximately eight and a half hours, before sending his employees home, as further attempts to remove the snow from the ground were futile.

Plaintiff subsequently filed a lawsuit, alleging the defendant snow removal contractor was negligent in failing to clear the snow and ice from the roof in a timely manner, thus allowing snow to accumulate for an unreasonable amount of time. Defendant, in a later filed motion for summary judgment, argued that plaintiff’s injury occurred during an ongoing snowstorm, such that a reasonable period of time, within which they were expected to clear the snow and ice, could not have expired. Stated differently, defendant argued it did not owe a duty to plaintiff to clear the snow and ice from the roof during the active storm.

The Court noted that under Pennsylvania law, a plaintiff asserting a negligence claim must establish four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages. “The mere fact that an accident has occurred does not entitle the injured person to a verdict. A plaintiff must show that the defendant owed a duty of care, and that this duty was breached.”  See Estate of Swift by Swift v. Northeastern Hosp., 456 Pa. Super. 330 (Pa. Super. 1997); Rauch v. Mike-Mayer, 2001 Pa. Super. 270 (Pa. Super. 2001).

In conducting its analysis, the Court cited prior Pennsylvania cases applying the “hills and ridges doctrine” in the context of slip and falls on snow and/or ice located on the ground. Those cases established (1) that there is no absolute duty on an owner or occupier of property to keep his premises free from ice and snow at all times; (2) that an owner or occupier of land is protected from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations; and (3) that a landowner’s duty to remove snow and ice is triggered only “a reasonable time after” the landowner becomes aware of the dangerous conditions created by the snow and ice.  See Hutchison v. Montgomery Ward & Co., 364 Pa. 126 (1950).  More directly applicable was the Court’s prior decision in Collins v. Philadelphia Suburban Development Corporation, 179 A.3d 69 (Pa. Super. 2018), which held that a landowner has no obligation to correct such conditions until a reasonable time after a winter storm has ended.

Here, the Court found that plaintiff suffered an injury during a severe and active snowstorm, which dumped approximately 20 inches of snow. Under these circumstances, it would have been totally unreasonable to require the defendant to clear snow and ice from the roof of the relevant building. Because defendant did not owe a duty to plaintiff to clear snow and ice from the roof of the building during an ongoing storm, plaintiff failed to make out a prima facie case of negligence. This was so even where the defendant was on site all day and aware of the generally prevailing conditions. Thus, the Court affirmed the trial court’s grant of summary judgment in favor of the defendant, dismissing plaintiff’s lawsuit.