Icicles hang from a roof.
PHILADELPHIA – A Pennsylvania woman found 90% at fault for her slip-and-fall on ice has lost her appeal to shift more of that blame to a property owner that struggled to clear two feet of snow in 2021.
The state Superior Court ruled Oct. 27 against Michelle Bruce, who was able to walk around her parked car following a snowstorm that produced some 25 inches of snow. But she attempted to shovel the area under a tire and fell, leading an expert for Ribbon Factory Lofts of Quakertown to blame that activity for her injuries.
The building manager had responded to her complaint that “There are mountains of snow everywhere which melt. Creating slippery spots. We try to salt it as much as we can and I promise I will try to do a better job. Unfortunately it’s not a lowes parking lot where there are no cars and you can plow the whole thing.”
This led her to argue in a lawsuit filed in Philadelphia that the lot owner and operator were aware of icy conditions that caused her fall. They, in turn, found an expert in snow and ice management who testified Bruce “elected to perform snow and ice management services of her own free will” and that had she not done so, “she would not have fallen and this incident would have been avoided.”
Bruce moved to exclude this testimony, taken at a deposition, before trial because Ken Boegeman, she said, had in a letter issued an opinion on fault that had nothing to do with his snow and ice management qualifications. And though Judge Mark Moore found that argument valid, he noted that her lawyers had the opportunity to cross-examine him and present their arguments to a jury.
A jury did find negligence on Ribbon Factory Lofts’ part but concluded Bruce couldn’t recover damages for her injury because most of the blame was on her. In her appeal, she attacked Boegeman’s findings that contained “no methodology” and an instruction given to the jury due to recent, extra snowfall.
That instruction, known as the “hills and ridges doctrine” in Pennsylvania, protects property owners from lawsuits caused by accumulations of snow and ice. Bruce argued against that, claiming she fell on an isolated patch of ice in a parking lot that did not have general slippery conditions.
“Although Bruce contends the hills and ridges instruction could have confused the jury into absolving Appellees of liability, the jury in this case ultimately determined that Appellees were negligent, but that negligence was only a 10% causal factor in her injury,” Judge Megan Sullivan wrote.
“Contrary to Bruce’s claim of prejudice, the jury thus found Appellees owed her a duty of care and breached that duty, but the breach was not sufficient causal factor to merit a verdict in Bruce’s favor. Under these circumstances, any error in the trial court’s decision to give a hills and ridges instruction was harmless.”
As for the expert testimony, the Superior Court found that any defects in Boegeman’s pretrial letter were absolved when he testified in the deposition.
“The parties had full notice of the substance, or lack thereof, of Boegeman’s opinions and the facts in his possession,” Sullivan wrote.
“Under these circumstances, Bruce cannot claim unfair surprise or claim bad faith on the part of Appellees or Boegeman, and the trial court did not err or abuse its discretion in rejecting Bruce’s request to preclude all testimony from Boegeman based on a defective expert report.”