No. 150 March Term, 1978, Appeal from the Order of the Court of Common Pleas of York County, Pennsylvania, Civil Division, at No. 77-S-107.
John W. Thompson, Jr., York, for appellant.
Robert J. Stewart, York, for appellee.
Cercone, President Judge, and Wieand, and Hoffman, JJ.*fn*
[ 281 Pa. Super. Page 527]
This is a "slip and fall" case in which the question presented is, whether in order to make out a prima facie case in a negligence action predicated upon the Restatement (Second) of Torts § 343 (1965), appellant-invitee must prove that appellee-proprietor had either actual or constructive notice of the offending transitory condition which allegedly caused appellant's harm. The lower court, relying primarily upon Martino v. Great Atl. & Pac. Tea Co., 419 Pa. 229, 213 A.2d 608 (1965) [hereinafter Martino ] held that appellant-invitee, Ms. Moultrey, had such a burden and failed to discharge it. For this reason, the lower court granted appellee-proprietor's motion for a compulsory non-suit. Since we conclude that under existing Pennsylvania law an invitee must establish such notice either by direct or circumstantial evidence, we affirm the lower court's order.
In reviewing the propriety of the lower court's action, we relate the testimony in the light most advantageous to the plaintiff, Ms. Moultrey, giving her the benefit of all reasonable
[ 281 Pa. Super. Page 528]
inferences therefrom, and resolving all the conflicts therein in her favor.*fn1 In the summer of 1976, Ms. Moultrey entered defendant's store accompanied by her teenaged children, Louis and Linda, to do some food shopping. As she entered the store, she secured a shopping cart and proceeded to the produce counter. The vegetable counter was to her right and the fruit counter was to her left. As she moved into the aisle between the two counters, she observed some water and some leaves of lettuce and cabbage on the floor. She maneuvered her cart to avoid the water in order to get to the banana stand, intending to purchase some bananas. She pushed the cart to the left side of the aisle close to the banana stand and circled the cart to obtain the bananas. After picking them up, she ventured back toward her cart, slipped and fell to the floor. While on the floor, she looked back and saw one squashed cherry, the seed of which was on her shoe. The cherry was not in the water, but rather was in a dry area closer to the cart.*fn2
Ms. Moultrey, shortly thereafter, commenced this trespass action for the resultant injuries to her elbow and left leg. At trial before a jury, Ms. Moultrey and her children testified they did not know how long the cherry had been on the floor or how it got there.*fn3 Further, she was unable to offer any evidence as to when the area in which she fell had last been cleaned. At the close of Ms. Moultrey's liability case, appellee moved for and was granted a compulsory non-suit by the trial judge. Exceptions having been argued before and dismissed by the court en banc, this appeal ensued.
[ 281 Pa. Super. Page 529]
Instantly, Ms. Moultrey, relying upon her novel interpretations of Jewell v. Beckstine, 255 Pa. Super. 238, 386 A.2d 597 (1978) and McMillan v. Mountain Laurel Racing, Inc., 240 Pa. Super. 248, 367 A.2d 1106 (1976), reasons that a prima facie case under the Restatement (Second) of Torts § 343 (1965)*fn4 need not contain proof that the condition which caused her harm had existed for a sufficient length of time so as to permit an inference that reasonable care would have led to its discovery. The store, while conceding in its brief that Ms. Moultrey's evidence tended to prove a dangerous condition, and that such condition caused her fall, nevertheless, maintains that a prima facie case must include either proof that the offending condition was created by the store, or that the condition had existed for such a time that the store could be charged with ...