The Pennsylvania Superior Court has upheld summary judgment in favor of a snow removal business sued for negligence, reasoning that the company is protected by the "hills and ridges" doctrine.

A three-judge panel of the Superior Court consisting of Judges John Bender, Alice Dubow and Kate Ford Elliott affirmed the ruling of a Warren County judge in James M. Hare Jr.'s lawsuit against Mark Zaffino Snow Removal.

Hare sued Zaffino after slipping in five to six inches of snow in an unplowed area of an industrial complex that contracted with Zaffino's company, according to Dubow's opinion. Hare fractured his left leg and subsequently sued.

The Warren County trial judge granted summary judgment in favor of Zaffino based on the "hills and ridges" doctrine, which states that a plaintiff must prove "(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 travelling 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 the plaintiff to fall."

On appeal, Hare argued that the court erroneously granted summary judgment based on the doctrine because Zaffino was not the property owner or in possession of the area.

Citing the 1991 case of Gilligan v. Villanova University, Dubow said, "'The only duty upon the property owner or tenant is to act within a reasonable time after notice to remove [the snow and ice] when it is in a dangerous condition.'"

Pointing to the 1996 case of Motter v. Meadows Ltd. Partnership, she added, "It is well-established that '[a]n independent contractor is in possession of the necessary area occupied by the work contemplated under the contract, and his responsibility replaces that of the owner who is, during the performance of the work by the contractor, out of possession and without control over the work or the premises.'"

Hare also argued that snow removal agreement between the property owner and Zaffino imposed a duty to remove snow at specific times and in specific amounts.

"it is undisputed that at the time of appellant's fall, the snow was continuing and had not accumulated to point that 'hills and ridges' had formed," Dubow said. "Also, since appellant has failed to establish that, under a theory of general negligence, the snow removal agreement imposed on appellee a duty to appellant, we are constrained to affirm the trial court's grant of the motion for summary judgment."

Hare had attempted to rely on the Superior Court's 2003 ruling in Biernacki v. Presque Isle Condominium Unit Owners Association for the argument that the property owner owed him a duty under the snow removal agreement. But Dubow said Biernacki was distinguishable because the court in that case found that the landlord owed a duty to the tenant under the lease agreement, to which they were both parties.

"In the instant case, appellant is not a party to the snow removal agreement and Biernacki does not address the duty of a party to a contract to a third party, let alone impose such a duty," Dubow said.

Timothy McNair of McNair Law Offices in Erie represents Hare and did not return a call seeking comment.

Bruce Decker of MacDonald, Illig, Jones & Britton in Erie represents Zaffino and did not return a call seeking comment.