MOORE v. ELPIZO, R.I., L.P. et al

Filing 57

MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE MARILYN HEFFLEY ON 3/7/2017. 3/7/2017 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHARLES MOORE,

Plaintiff,
v.
ELPIZO, R.I., L.P., et al.,

Defendants.

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CIVIL ACTION

NO. 15-2519

MEMORANDUM OPINION
Presently before the Court is a Motion for Summary Judgment filed by Defendants Elpizo,
L.P., Ipax, R.I., Inc., and Phileo R.I., Inc. (“Defendants”) (Doc. No. 44), and Plaintiff Charles
Moore’s (“Moore” or “Plaintiff”) response in opposition (Doc. No. 47). Moore filed this action to
recover damages as a result of an alleged slip and fall on an icy staircase at a hotel property
owned, operated, and managed by the Defendants. 1 Moore asserts claims against the Defendants
for negligence and/or carelessness for their alleged failure to clear ice from the outdoor staircase
of the building where Moore fell. For the reasons that follow, this Court will deny Defendants’
Motion.

1

This action was originally filed in the Court of Common Pleas of Philadelphia County,
Pennsylvania. The action was removed to the United States District Court for the Eastern District
of Pennsylvania, where it was referred to arbitration. Doc. Nos. 1, 17. Moore appealed the
Award of Arbitrators and requested a trial de novo. Doc. No. 30. Upon consent of the parties and
by order of the Honorable Juan R. Sanchez, the case was referred to the undersigned to conduct
all further proceedings including trial, the entry of final judgment, and all post-trial proceedings.
Doc. No. 38.

I.

STATEMENT OF FACTS 2
Defendants are the owners and managers of a hotel property comprised of 16 separate

buildings located at 7890 Penrose Avenue in Philadelphia, Pennsylvania, near the Philadelphia
International Airport. Defs.’ Statement of Undisputed Facts Supp. Summ. J. (Doc. No. 44), ¶ 1
[hereinafter “Defs.’ Facts”]. The hotel operated under a licensing agreement with Hawthorn
Suites Franchising, Inc. 3 Id. On January 4, 2014, the date of the accident, Moore was employed
as a security officer by Executive Shields, the hotel’s third-party security vendor. Id. ¶ 9.
Moore’s job duties as a security officer consisted of touring the complex in order to report any
hazardous conditions, including weather-related hazards and potential misconduct by hotel
tenants. Pl.’s Counter-Statement of Disputed and Undisputed Facts (Doc. No. 47), ¶¶ 39-43
[hereinafter “Pl.’s Facts”]; Defs.’ Facts Ex. M (Doc. No. 44-13), at 9:7-9:20, 44:8-44:11.
Prior to the fall, from Thursday, January 2, 2014, at approximately 5:00 p.m. through
Friday, January 3, 2014, at approximately 11:00 a.m., it snowed nine inches in the Philadelphia
area. Defs.’ Facts Ex. I (Doc. No. 44-9); Pl.’s Ex. D. Moore worked the overnight shift at the
hotel property from approximately 10:30 p.m. on Friday, January 3, 2014 through 7:00 a.m. on
Saturday, January 4, 2014. Defs.’ Facts ¶ 47; Pl.’s Facts ¶ 28. During this shift, Moore patrolled
the hotel property six times. Defs.’ Facts Ex. K (Doc. No. 44-11). After his last tour at
approximately 6:50 a.m. on January 4, 2014, he noted in his work log that “[d]uring the co[u]rse
2

The statement of facts is derived from the competing factual statements set forth by the
parties in their submissions. In accordance with the standard of review on motions for summary
judgment discussed infra in Section II.A, the Court views the facts in the light most favorable to
Moore and draws all reasonable inferences in Moore’s favor. See Scheidemantle v. Slippery
Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006).
3

Hawthorn Suites Franchising, Inc. was named as a defendant, but was dismissed from the
case via stipulation on June 27, 2016. Doc. No. 27.

2

of my tour I notice[d] that all of the building steps are icy in patches” and he advised the general
manager of the hotel of this issue. Id.; Defs.’ Facts ¶ 28. At that time, he also submitted a
maintenance request form where he wrote that “all steps on each building[] need to be salted and
becoming slippery.” Pl.’s Facts ¶¶ 19-20; Defs.’ Facts Ex. G (Doc. No. 44-7). The hotel property
had an on-site engineering team that was responsible for the maintenance of the buildings and
addressing any issues noted by the security team, including snow and ice removal. Defs.’ Facts
¶¶ 29, 31; Defs.’ Facts Ex. J (Doc. No. 44-10), at 20:13-21:16; Pl.’s Facts ¶¶ 19-20.
Moore completed his shift at approximately 7:00 a.m. on January 4, 2014 and returned to
work the overnight shift at approximately 11:00 p.m. that night. Pl.’s Facts ¶ 24. During his first
patrol of the property that evening, Moore thought he smelled marijuana emanating from the
second floor of Building #7. Defs.’ Facts ¶ 15. As he was walking to the outdoor stairway of
Building #7, he saw patches of ice in the vicinity of the building which he was able to navigate
around. Id. ¶ 13. He did not see any ice on the steps of Building #7 before he walked up the
stairs to investigate the source of the smell. Id. ¶ 18. Moore walked approximately halfway up
the staircase when he determined that the smell was not coming from the second floor of the
building. Id. ¶ 15. When he turned to go down the stairs, he slipped and fell as a result of ice on
the stairway. Id. ¶ 11. After he fell, he called for his supervisor, another security officer working
at the hotel property that night, to come help him because he was having difficulty walking. Id. ¶
17. After Moore received medical assistance, the supervisor completed an Incident Report, in
which he stated that the stairs at Building #7 were covered with water and thin ice. Id.; Pl.’s Facts
¶ 22.

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II.

DISCUSSION
A.

Legal Standard

“A federal court sitting in diversity must apply state substantive law and federal
procedural law.” Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R.
Co. v. Tompkins, 304 U.S. 64, 78 (1938)). Under the well-established summary judgment
standard, “[t]he court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “Summary judgment is appropriate when ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.’” Williams v. Wells Fargo Bank, No. 14-2345, 2015 WL 1573745, at *3 (E.D.
Pa. Apr. 9, 2015) (quoting Wright v. Corning, 679 F.3d 101, 105 (3d Cir. 2012)).
[T]he plain language of Rule 56[a] mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial. In such
a situation, there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial. The moving party is
‘entitled to judgment as a matter of law’ because the nonmoving party has failed
to make a sufficient showing on an essential element of [his or] her case with
respect to which [he or] she has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
“By its very terms, this standard [that there be no genuine issue as to any material fact]
provides that the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24748 (1986) (emphasis in original). A material fact is one that “might affect the outcome of the
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suit under the governing law.” Id. at 248.
When ruling on a motion for summary judgment, the court shall consider facts in the light
most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.
Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir.
2006). To prevail on summary judgment, however, “the non-moving party must present more
than a mere scintilla of evidence; ‘there must be evidence on which the jury could reasonably
find for the [non-moving party].’” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013)
(quoting Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007)); see also
Anderson, 477 U.S. at 252. As this case is in federal court on diversity jurisdiction, we will apply
Pennsylvania law to this dispute. Erie R.R. Co., 304 U.S. at 78; Sheridan v. NGK Metals Corp.,
609 F.3d 239, 253 (3d Cir. 2010).
B. Defendants Are Not Entitled to Summary Judgment on Moore’s Negligence
Claims
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Defendants argue that they are entitled to summary judgment based on three legal theories
that may act to absolve them of liability under Pennsylvania law. First, Defendants contend that,
pursuant to the assumption of risk doctrine, they lacked any duty to Moore because Moore was
aware of the risks of traversing the icy steps, but nevertheless did so. Defs.’ Mem. Supp. Summ.
J. at 17-22 [hereinafter “Defs.’ Mem.”]. Second, Defendants assert that their liability is negated
by Pennsylvania’s “hills and ridges doctrine” because Moore cannot show than an unreasonable
accumulation of snow or ice was in the area at the time of the incident. Id. at 23-25. Third, they
argue that Moore’s own negligence was the primary cause of his fall. Id. at 25-29. Because
genuine issues of material fact remain in dispute, summary judgment is inappropriate on any of
these grounds.

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1.

There Are Disputes of Material Fact Regarding Whether Moore
Assumed the Risk of Descending the Staircase

Defendants argue that Moore is barred from recovery because he assumed the risk of
injury given his awareness of slippery conditions on the hotel property and in the vicinity of
Building #7. Defs.’ Mem. at 17-22. In a negligence case, the plaintiff must prove that the
defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach
resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage. See Martin
v. Evans, 711 A.2d 458, 461 (Pa. 1998). In Pennsylvania, possessors of land owe a duty to
invitees to protect them from foreseeable harm. Carrender v. Fitterer, 469 A.2d 120, 123 (Pa.
1983). Pennsylvania courts have adopted Section 343 of the Restatement (Second) of Torts,
which subjects a possessor of land to liability for conditions on the land which are known to or
discoverable by the possessor only if he or she:
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitee;
(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it; and
(c) fails to exercise reasonable care to protect them against the danger.
Id. (citing Restatement (Second) of Torts § 343).
Under Pennsylvania’s assumption of risk doctrine, however, a defendant owes no duty if
the plaintiff “‘discover[ed] dangerous conditions which [were] both obvious and avoidable, and
nevertheless proceed[ed] voluntarily to encounter them.’” Kaplan v. Exxon Corp., 126 F.3d 221,
226 (3d Cir. 1997) (quoting Carrender, 469 A.2d at 125). Accordingly, “assumption of risk is
established as a matter of law ‘only where it is beyond question that the plaintiff voluntarily and
knowingly proceeded in the face of an obvious and dangerous condition.’” Staub v. Toy Factory,
Inc., 749 A.2d 522, 529 (Pa. Super. Ct. 2000) (quoting Barrett v. Fredavid Builders, Inc., 685
A.2d 129, 131 (Pa. Super. Ct. 1996)). “Mere contributory negligence does not establish
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assumption of the risk.” Id. at 529.
Viewing the evidence in the light most favorable to Moore as the non-moving party,
disputes of material fact exist over whether Moore knew of the icy conditions on the stairs of
Building #7, but nevertheless proceeded to use them. The record establishes that during his
overnight shift the evening before his fall, Moore toured the property six times. Defs.’ Facts Ex.
K. On his last tour, at approximately 6:50 a.m. on January 4, 2014, he made a note in the log that,
“[d]uring the co[u]rse of my tour I notice[d] that all of the building steps are icy in patches.” Id.
He also submitted a maintenance request to the hotel property’s engineering department that each
buildings’ steps needed to be salted because they were becoming slippery. Pl.’s Facts ¶¶ 19-20;
Defs.’ Facts Ex. G. The engineering department was responsible for the snow and ice removal on
the property. Defs.’ Facts ¶¶ 29, 31; Pl.’s Facts ¶¶ 19-20. Moore reported back to work later that
night, approximately 15 ½ hours after he submitted his maintenance request. Defs.’ Facts ¶ 47;
Pl.’s Facts ¶¶ 19-20. At the start of his shift, Moore began his first tour of the property. During
his tour, he smelled what he thought was marijuana coming from the second floor of Building #7.
Defs.’ Facts ¶ 15. As he approached the steps of Building #7 to determine the origin of the smell,
he noticed patches of ice in the area, but was able to avoid them to access the steps. Id. ¶ 13. He
then proceeded to ascend the steps until, about halfway up, he realized that the smell was not
coming from the second floor of the building. Id. ¶¶ 14-15. Therefore, he began to descend the
steps. Id. However, as he was walking down, he slipped on ice, leading to his fall and injury. Id.
¶ 11. According to his sworn testimony, it was not until after he fell that Moore became aware of
the icy conditions on the stairs. Id. ¶ 18; Pl.’s Facts ¶¶ 49, 56.
Defendants contend that Moore’s knowledge of the icy patches in the vicinity prove the
existence of an obvious danger. This is an issue for the fact finder. Moore testified that he did

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not see ice on the steps. Defs.’ Facts Ex. F (Doc. No. 44-6), at 62:4-62:9. He had reported icy
conditions on the property approximately 16 hours earlier to the general manager and the
engineering department responsible for snow and ice removal. Defs.’ Facts ¶¶ 19-21; Pl.’s Facts ¶
48; Defs.’ Facts Ex. K. Although Defendants claim that the general manager of the hotel property
instructed Moore not to tour any areas that were potentially icy, that instruction came on the
evening of Friday, January 3, 2014 before Moore submitted a request to the engineering
department to address the accumulation of ice on the steps of the buildings. Pl.’s Facts ¶ 55;
Defs.’ Facts Ex. M, at 40:22-41:12. Reasonable minds could conclude that the engineering
department responsible for salting the property would have addressed the slippery conditions
identified in Moore’s maintenance request submitted early that morning at some point during the
course of the day and that the steps could be safely navigated later that night. In light of these
disputes of material fact, summary judgment is not warranted as to whether Moore assumed the
risk of descending the icy staircase.
2.

Genuine Issues of Material Fact Preclude the Application of
Pennsylvania’s Hills and Ridges Doctrine
___

Defendants also argue that Moore failed to provide evidence that any snow or ice had
accumulated in the requisite ridges or elevations and that, consequently, Moore is barred from
recovery under Pennsylvania’s “hills and ridges doctrine.” Defs.’ Mem. at 23-25. Under
Pennsylvania law, property owners do not have an absolute duty to keep their premises
completely free from snow and ice at all times. Rinaldi v. Levine, 176 A.2d 623, 625 (Pa. 1962).
“There is no liability created by a general slippery condition on sidewalks.” Id. The doctrine of
hills and ridges provides:
that an owner or occupier of land is not liable for general slippery conditions, for
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. Snow and
ice upon a pavement create merely transient danger, and the only duty upon the
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property owner or tenant is to act within a reasonable time after notice to remove it
when it is in a dangerous condition.
Harmotta v. Bender, 601 A.2d 837, 841 (Pa. Super. Ct. 1992) (quoting Gilligan v. Villanova
Univ., 584 A.2d 1005, 1007 (Pa. Super. Ct. 1991)). Thus, where the hills and ridges doctrine is
applicable, an injured party must prove the following factual elements: (1) that the 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; and
(3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall.
Rinaldi, 176 A.2d at 625-26. “Proof of ‘hills and ridges’ is necessary, however, only when it
appears that the accident occurred at a time when general slippery conditions prevailed in the
community.” Tonik v. Apex Garages, Inc., 275 A.2d 296, 298 (Pa. 1971). Thus, a prerequisite to
the application of the “hills and ridges” doctrine is a finding of generally slippery conditions, as
opposed to isolated icy patches. Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1088 (Pa.
Super. Ct. 1997).
In this matter, it is not clear that generally slippery conditions existed throughout the
community at the time of the accident. Specifically, 36 hours passed between the last significant
precipitation in the area and Moore’s fall. Defs.’ Facts Ex. I; Pl.’s Ex. D. According to the
precipitation tables attached as exhibits to the Defendants’ Motion for Summary Judgment and
Moore’s Counter-Statement of Disputed and Undisputed Facts, it snowed approximately nine
inches in the Philadelphia area beginning at approximately 5:00 p.m. on January 2, 2014 and
ending at approximately 11:00 a.m. on January 3, 2014. Defs.’ Facts Ex. I; Pl.’s Ex. D. Moore
fell at approximately 11:55 p.m. on the night of January 4, 2014, a day and a half after any
recorded precipitation. Defs.’ Facts ¶ 22; Pl.’s Ex. D. Moore also testified that, when he was
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walking to Building #7, there were “patches” of ice in the vicinity of the building, but they did not
impede his ability to get to the steps. Defs.’ Facts Ex. F, at 80:13-81:8. Viewed in the light most
favorable to Moore, a reasonable juror could conclude that, at the time of Moore’s injury,
generally slippery conditions did not prevail in the community. See, e.g., Mangual v. DIAWesley Drive, Inc., No. 1:13-CV-00071, 2014 WL 2511281, at *6 (M.D. Pa. June 4, 2014)
(determining that it was not clear that generally slippery conditions existed when photographs
from the night of the incident showed “patches of pavement [that were] clearly visible along with
patches of ice and snow, which [the plaintiff] testified that he likewise observed,” and there was
no snow in the area for three days prior to the alleged incident); Jung v. Marriott Hotel Servs.,
Inc., No. 09-4955, 2010 WL 4703543, at *3-4 (E.D. Pa. Nov. 19, 2010) (holding that there was a
material issue of fact as to whether conditions were generally slippery at the time of plaintiff’s fall
or whether plaintiff slipped on a discrete patch of ice); Comer v. Boro Developers, Inc., No. 0900415, 2010 WL 1948328, at *3-4 (E.D. Pa. May 14, 2010) (genuine issue of material fact existed
as to whether generalized slippery conditions prevailed in the community at the time of plaintiff’s
alleged injury when previous precipitation occurred two days prior to plaintiff’s fall and where
testimony reflected that parking lot had been plowed and could be walked on without any
problem); Mears v. Saidi, Nos. 2761 EDA 2011, 2762 EDA 2011, 2013 WL 11273038, at *10-11
(Pa. Super. Ct. Mar. 13, 2013) (no generally slippery conditions existed where the last snow or
rain fall was approximately four days earlier and the general vicinity was free and clear of snow
and ice); cf. Morin, 704 A.2d at 1088 (generally slippery conditions found to exist in the
community where freezing precipitation began the night before and continued into the morning
hours prior to the fall; numerous news accounts reported that driving was treacherous as a result
of the freezing precipitation that had blanketed the entire area; and plaintiff admitted that after she

10

had fallen she realized the entire parking lot was covered with a thin glaze of ice); Moon v.
Dauphin Cnty., 129 A.3d 16, 23 (Pa. Commw. Ct. 2015) (generally slippery conditions found to
exist when fall occurred at the start of a weather event).
Moreover, a reasonable juror could also conclude that the slippery conditions on the stairs
of Building #7 were not caused by the snowfall that ended the day before Moore’s fall, but by
Defendants’ failure to clear the ice after the snowfall ended. A genuine issue of material fact
exists regarding whether and to what extent the stairs at Building #7 were salted by the
engineering department. Although the general manager testified that the engineering department
salted the property on January 4, 2014, Defs.’ Facts ¶ 30, Moore testified that the steps of
Building #7 did not appear to be salted, despite the maintenance request he submitted at the end of
his previous shift that “all steps on each building need to be salted and becoming slippery,” Pl.’s
Facts ¶ 30; Defs.’ Facts Ex. G. If grounds are not properly maintained for an unreasonable period
of time, the hills and ridges doctrine does not apply. See Lewis v. First Montgomery Grp., No.
08-2197, 2010 WL 3210419, at *4 (D.N.J. Aug. 11, 2010); see also Goggans v. United States, No.
87-7423, 1990 WL 18873, at *1-2 (E.D. Pa. Feb. 26, 1990) (holding that 15 hours was sufficient
time to clear the snow, thus preventing the application of the “hills and ridges” doctrine). The
ambiguity in the record evidence as to the extent to which the Defendants allowed any icy
conditions to remain for an unreasonable length of time raises a genuine question of material fact
which precludes the Court from answering the threshold issue of whether the hills and ridges
doctrine applies. Accordingly, summary judgment must be denied on these grounds. 4

4

Moore also argues that the hills and ridges doctrine does not apply to stairs. Pl.’s Mem. Opp.
Summ. J. (Doc. No. 47-1), at 4-5. The Pennsylvania Supreme Court has not addressed whether
the hills and ridges doctrine applies to an open staircase like the one at issue here, or is strictly
(Footnote continued)
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3. Defendants Are Not Entitled to Summary Judgment Based on Moore’s
Alleged Comparative Negligence
___
Defendants argue that Moore’s own negligence was the primary cause of the fall because
he disregarded company policy by patrolling unoccupied buildings, without his partner, in
freezing temperatures. Under Pennsylvania’s comparative negligence statute, a plaintiff’s
negligence bars recovery only when it is greater than that of the defendant. 42 Pa. Cons. Stat.
Ann. § 7102(a); see Bouchard v. CSX Transp., Inc., 196 F. App’x 65, 70 (3d Cir. 2006).
“Comparative negligence is ordinarily an issue for the jury; it is a ‘rare situation where it can be
said that the plaintiff is more than 50% negligent as a matter of law.’” Bouchard, 196 F. App’x at
70 (quoting Gilbert v. Consol. Rail Corp., 623 A.2d 873, 876 (Pa. Commw. Ct. 1993)).
The existence of the alleged policies identified by the Defendants and their enforcement,
however, are in dispute. Defendants claim that, by patrolling the property alone, Moore was in
violation of a policy that required security officers to tour the property in pairs on weekends.
Defs.’ Mem. at 26-29. Viewing the evidence in the light most favorable to Moore, the policy for
security officers to tour the property in pairs on weekends was neither mandatory nor consistently
followed, Pl.’s Facts ¶¶ 32-33, 57; Defs.’ Facts Ex. F, at 73:13-74:6, and security officers
regularly went out on their own to deliver items such as menus to guests, Pl.’s Facts ¶¶ 16, 32-33,
51-52. To the extent the policy existed, it was designed to protect security officers on the
weekends when potential criminal activity such as prostitution was more likely to occur. Defs.’
Facts Ex. J, at 26:6-26:15; Defs.’ Facts Ex. M, at 13:10-14:2. The hotel property, however, was at
limited to sidewalks and paved areas. But see Blodnikar v. Elk Mountain Ski Ctr., Inc., No.
2004 – 359 C.P., 2005 WL 5006282 (Pa. Ct. Com. Pl. Susquehanna Cnty. Apr. 28, 2005)
(holding that hills and ridges doctrine was applicable to stairs covered by a roof). Because
summary judgment is not appropriate under the hills and ridges doctrine for the reasons
explained above, the Court need not decide whether the doctrine applies to the open staircase
where Moore fell for purposes of ruling on Defendants’ Motion for Summary Judgment.

12

low occupancy on the night of January 4, 2014. Defs.’ Facts Ex. J, at 41:20-42:6. Defendants
also claim Moore violated a policy that any unoccupied buildings on the property did not need to
be toured. Defs.’ Mem. at 26-27. Moore’s supervisor on the night of the accident, however,
testified that he was unaware of this policy and that security officers would not even be made
aware of which buildings were unoccupied until they had to deliver the guest checks. Pl.’s Facts
¶¶ 24, 34-36. Nor was Moore given a guest log for the evening of January 4, 2014. Id. ¶ 38. The
hotel’s general manager testified that this policy was only put into place that weekend. Defs.’
Facts Ex. J, at 39:15-39:19. Defendants further contend that Moore was in violation of
instructions from the owner of Executive Shields that security officers did not have to tour the
property in inclement weather, including freezing temperatures. Defs.’ Mem. at 27-28. On the
evening of January 3, 2014, however, the weather report indicates that the temperatures were
below freezing, yet Moore completed six tours of the property over the course of his overnight
shift without any reported incident or reprimand. See Defs.’ Facts Exs. I, K; Pl.’s Ex. D. No one
prohibited Moore from touring the property on January 4, 2014 or instructed him not to go out
that evening to complete his responsibilities of touring the property. Pl.’s Facts ¶¶ 16, 34-36;
Defs.’ Facts Ex. M, at 44:8-44:11. Accordingly, genuine issues of material fact remain regarding
the existence and enforcement of each of these polices that Defendants claim Moore violated by
patrolling the property during his shift on the night of January 4, 2014.
Even if Moore was found to be negligent for walking on the stairway of Building #7,
summary judgment would still not be appropriate. Pennsylvania’s comparative negligence statute
provides that a plaintiff’s own negligence shall not bar recovery, but that “any damages sustained
by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the
plaintiff” so long as the plaintiff’s negligence was not greater than that of the defendant. 42 Pa.

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Cons. Stat. Ann. § 7102(a). Apportionment of fault is generally within the jury’s province, and
should not be analyzed by the court except in certain circumstances where “the facts so clearly
reveal the plaintiff’s negligence that reasonable minds could not disagree as to its existence.”
O’Brien v. Martin, 638 A.2d 247, 249 (Pa. Super. Ct. 1994). Here, upon a potential finding of
negligence on the part of the Defendants, it would be most appropriate for the finder of fact to
weigh any negligence on the part of Moore. The facts before the Court do not compel a finding
that Moore was so negligent as to bar recovery, and reasonable minds could certainly disagree as
to the magnitude of Moore’s comparative negligence, if any. Therefore, while the potential for
comparative negligence does not entitle Defendants to summary judgment, it may be considered
by the jury at trial to bar or mitigate any recovery by Moore.
III.

CONCLUSION
For the foregoing reasons, the Court will deny Defendants’ Motion for Summary

Judgment. A separate Order follows.
Date: March 7, 2017

BY THE COURT:

/s/ Marilyn Heffley
MARILYN HEFFLEY
UNITED STATES MAGISTRATE JUDGE

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