Truax v. Roulhac

Decision Date07 October 2015
Docket NumberNo. 1797 EDA 2013,1797 EDA 2013
Parties Tracy TRUAX, Appellant v. Tanya P. ROULHAC, Wildwood 115, Inc., and Silvio Vitiello, Appellees.
CourtPennsylvania Superior Court

George W. Westervelt, Jr., Stroudsburg, for appellant.

Audrey J. Copeland, King of Prussia, for Vitiello, appellee.

Mark T. Sheridan, Scranton, for Wildwood 115, appellee.

BEFORE: BOWES, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J., OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.

OPINION BY MUNDY, J.:

Appellant, Tracy Truax, appeals from the order entered June 12, 2013, granting summary judgment in favor of Wildwood 115, Inc. (Wildwood) and Silvio Vitiello (collectively, Appellees). After careful review, we reverse and remand for proceedings consistent with this opinion.

The relevant facts and procedural history of this case are as follows. This negligence case arises out of an accident in which a minivan driven by Tanya Roulhac hit Truax on the sidewalk outside of Madd Anthony's Bar (Madd Anthony's). Madd Anthony's was one of the businesses located in a 150–foot wide building that is parallel to, and set back from, Route 115 in Effort, Monroe County, Pennsylvania. Vitiello was the sole owner of the commercial parcel that contained both the building housing Madd Anthony's and a common parking lot, shared by all tenants. Complaint, 10/14/10, at ¶ 7. Wildwood was the corporate operator of two of the building's tenants, Madd Anthony's, and the neighboring La Roma Pizza. Id. at ¶ 5. Wildwood's tenancy included nonexclusive use in common of the parking lot, located in front of the building. Wildwood's Motion for Summary Judgment, 6/28/12, at ¶ 5. A concrete sidewalk for pedestrians runs the full length of the front of the building. Vitiello's Motion for Summary Judgment, 6/19/12, at Exhibit 1. There are two extensions, or "bump outs," on the front of the building, which protrude out onto the sidewalk and almost completely block the walking area such that a pedestrian maneuvering around them is redirected toward the parking lot. Truax's Answer to Wildwood's Motion for Summary Judgment, 8/30/12, at Exhibit E, Summary of Traffic and Site Engineering Findings, 8/30/12, at 5.

On March 4, 2009 at approximately 10:30 p.m., Truax and her fiancé, Craig Foulkes, arrived at Madd Anthony's. Complaint, 10/14/10, at ¶ 8. As the two walked along the sidewalk toward Madd Anthony's, Roulhac drove her minivan into one of the head-on parking spaces directly in front of, and perpendicular to, the sidewalk. Id. at ¶ 10. When Roulhac failed to stop, the minivan jumped the five-inch tall concrete wheel stop and struck Truax, pinning her to the building. Id. At that location, the parking lot was level with the sidewalk; there was no curb. Truax's Answer to Wildwood's Motion for Summary Judgment, 8/30/12, at Exhibit E, Summary of Traffic and Site Engineering Findings, 8/30/12, at 3. The only barrier between the parking lot and sidewalk was the horizontal, five-inch tall concrete wheel stop. Id.

After the accident, a helicopter transported Truax to Lehigh Valley Hospital Center, where she was treated for multiple injuries to her left leg. Complaint, 10/14/10, at ¶ 13. Even after the completion of treatment, Truax walks with a limp and has several permanent scars. Id.

Roulhac fled the scene of the accident. Id. at 11. Police later apprehended her and charged her with driving under the influence after a blood test revealed a BAC of 0.10 and positive results for cocaine and THC. Wildwood's Motion for Summary Judgment, 6/28/12, at ¶ 3. Roulhac, however, was released on bail and fled, and Truax has been unable to locate her to serve her with the complaint in this case. Id. at ¶ 6.

On October 14, 2010, Truax filed a complaint, asserting a claim for negligence against Roulhac, claims for premises liability and a dram shop act violation against Wildwood, and a claim for premises liability against Vitiello. Complaint, 10/14/10, at ¶¶ 1–34. On November 16, 2011, Truax filed a stipulation voluntarily dismissing the dram shop claim against Wildwood. In June 2012, after the completion of discovery, Vitiello and Wildwood filed separate motions for summary judgment. Appellees both contended that the harm was not foreseeable because Vitiello was unaware of any similar incidents of motor vehicles jumping the wheel stops. Vitiello's Motion for Summary Judgment, 6/19/12, at ¶ 11; Wildwood's Motion for Summary Judgment, 6/28/12, at ¶ 11. Moreover, they argued they were under no duty to install any other types of barriers to separate the parking lot from the sidewalk. Vitiello's Motion for Summary Judgment, 6/19/12, at ¶¶ 16–28; Wildwood's Motion for Summary Judgment, 6/28/12, at ¶ 15. Specifically, Vitiello maintained that his duty as a possessor of land is coextensive with the building and zoning codes, and he discharged that duty because the wheel stops complied with the applicable zoning ordinance governing commercial off-street parking. Vitiello's Motion for Summary Judgment, 6/19/12, at ¶¶ 16–28.

On October 3, 2012, the trial court issued an order granting summary judgment in favor of Appellees and entering judgment accordingly. Trial Court Order, 10/3/12. In its opinion, the trial court reasoned, "a possessor of land is not the insurer of the safety of his patrons and must only take reasonable measures to control the conduct of third persons." Trial Court Opinion, 10/3/12, at 7 (citation omitted). The trial court further opined as follows.

No Pennsylvania court has held that a business owner was negligent for failing to install vertical bollards [1 ] in addition to horizontal wheel stops and we are not inclined to do so here. [Appellees] have complied with all applicable building codes and zoning ordinances, and to impose a duty upon property owners above and beyond these standards would defeat the purpose of having such standards in the first place. It would not be wise to allow juries to determine building standards on an ad-hoc basis as this would result in confusion and inconsistency across the Commonwealth. Further, there is no evidence that a similar curb-jumping incident had ever occurred on [Vitiello's] property. We find that the possibility that a vehicle driven by an intoxicated individual might drive over a concrete wheel stop and strike a pedestrian so remote and unforeseeable that it would be oppressive to hold that [Appellees] should have taken measures to prevent such an occurrence.

Id. at 8. Truax filed a motion for reconsideration of this decision, which the trial court denied on October 5, 2012. On October 16, 2012, Truax filed a timely notice of appeal to this Court. On June 6, 2013, a panel of this Court quashed the appeal because the action against Roulhac was still pending. See Truax v. Roulhac, 82 A.3d 456 (Pa.Super.2013) (unpublished judgment order at 1).

Thereafter, on June 10, 2013, Truax filed with the trial court a petition for the entry of a final order as to fewer than all parties pursuant to Pennsylvania Rule of Appellate Procedure 341(c). Consequently, on June 12, 2013, the trial court entered a final order pursuant to Rule 341(c), determining that an immediate appeal would facilitate resolution of the entire case and that its October 3, 2012 order granting summary judgment was a final order. On June 19, 2013, Appellant filed a timely notice of appeal to this Court.2 A panel of this Court issued a memorandum affirming the grant of summary judgment. See Truax v. Roulhac, 1797 EDA 2013 (Pa.Super., filed 9/24/2014) (unpublished memorandum, withdrawn). The Honorable Mary Jane Bowes filed a dissenting memorandum. See id. (Bowes, J., dissenting) (unpublished dissenting memorandum, withdrawn). Truax filed a petition for reargument en banc, which this Court granted on December 4, 2014. Superior Court Order, 12/4/14 (per curiam ). After the filing of supplemental briefs, this matter is ready for disposition.

On appeal, Truax presents two issues for our review, which we have reordered for our discussion, as follows.

[1.] Did Vitiello and Wildwood owe a duty to take reasonable measures to protect business invitees from the foreseeable risk of curb-jumping vehicles?
[2.] Did the trial court err in holding as a matter of law that Vitiello and Wildwood had taken reasonable precautions to protect business invitees from vehicle intrusion onto a bar's sidewalk?

Truax's Amended Brief at 3. Because these issues arise in the context of the trial court's order granting summary judgment in favor of Appellees and dismissing Truax's claims, the following standard and scope of review applies to our consideration of this case.

As has been oft declared by [our Supreme] Court, "summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1221 (2002) ; Pa. R.C.P. No. 1035.2(1). When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 928 A.2d 186, 195 (2007). In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment "where the right to such judgment is clear and free from all doubt." Id. On appellate review, then,
an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals.
Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899, 902–03 (2007) (
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