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GALULLO v. FEDERAL EXPRESS CORP.

June 24, 1996

HELEN GALULLO, Plaintiff,
v.
FEDERAL EXPRESS CORPORATION, Defendant.



The opinion of the court was delivered by: KELLY

 R.F. KELLY, J.

 JUNE 24, 1996

 Plaintiff, Helen Galullo ("Galullo"), has filed the instant action seeking to recover for injuries she sustained after she allegedly slipped and fell on a letterpack *fn1" which she claims was delivered to her home by Defendant Federal Express Corporation ("Federal Express"). Presently before the Court is Federal Express' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. *fn2" For the reasons that follow, Defendant's Motion will be granted.

 I. BACKGROUND

 The incident which led to the present action occurred on November 16, 1994. At that time, Galullo, who is now 86 years of age, resided with her daughter, son-in-law, and granddaughter in Collegeville, Pennsylvania. On the morning in question, Galullo was home alone and sitting at her kitchen table drinking coffee. At approximately 10:00 a.m. she heard a single loud knock on the side door which separated the kitchen from a two-car garage. The door was located approximately ten (10) to fifteen (15) feet from where she was seated. Galullo immediately went to the door and opened it to see who had knocked. When nobody was present and she heard nothing to indicate who had knocked, she stepped down into the garage and fell when her right foot slipped out from under her. Galullo sustained serious injuries from her fall and was unable to move until approximately 4:00 p.m. when her daughter returned home from work. Galullo subsequently filed the instant action claiming that Federal Express was negligent in delivering the letterpack to her home. *fn3"

 II. STANDARD

 Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the initial burden of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party cannot rest on the pleadings, but rather that party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). If the court, in viewing all reasonable inferences in favor of the non-moving party, determines that there is no genuine issue of material fact, then summary judgment is proper. Celotex, 477 U.S. at 322; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).

 III. DISCUSSION

 In order to establish a prima facie claim for negligence under Pennsylvania law, *fn4" a plaintiff must show (1) a duty or obligation, recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) a failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting to the interests of another. Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 n.5 (Pa. 1983) (citing W. Prosser, Law of Torts § 30, at 143 (4th ed. 1971)). On the issue of causation, "even when it is established that the defendant breached some duty of care owed the plaintiff, it is incumbent on a plaintiff to establish a causal connection between defendant's conduct. . . [and such conduct] must be shown to have been the proximate cause of plaintiff's injury." Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1284 (Pa. 1978).

 Under Pennsylvania law, causation involves both cause in fact (or physical cause) and proximate (or legal) cause. There is much confusion regarding the concept of causation because the term "proximate cause" is often used to embody both cause in fact and legal cause. *fn5" However, cause in fact and proximate cause are separate and distinct concepts and both must be proved by a plaintiff. Redland Soccer Club, Inc. v. Department of Army, 55 F.3d 827, 851 (1995), cert. denied, 133 L. Ed. 2d 725, 116 S. Ct. 772 (1996); Estate of Flickinger v. Ritsky, 452 Pa. 69, 305 A.2d 40, 42-43 (Pa. 1973). Cause in fact, or "but for" causation, requires proof that the alleged injury would not have occurred but for the negligent conduct of the defendant. Robertson v. Allied Signal, Inc., 914 F.2d 360, 366 (3d Cir. 1990). The question of whether cause in fact has been shown involves "a de minimis standard of causation under which even the most remote and insignificant force may be considered the cause of an occurrence." Herman v. Welland Chem., Ltd., 580 F. Supp. 823, 827 (M.D. Pa. 1984) (quoting Takach v. B.M. Root, Co., 279 Pa. Super. 167, 420 A.2d 1084 (Pa. Super. 1980)).

 Proximate cause, on the other hand, assumes the presence of cause in fact and serves as a means by which courts are able to place practical limits on liability as a matter of policy. Wisniewski v. Great Atl. & Pac. Tea Co., 226 Pa. Super. 574, 323 A.2d 744 (Pa. 1974). It involves a determination that the nexus between a defendant's wrongful acts or omissions and the injury sustained is of such a nature that it is socially and economically desirable to hold that defendant liable. *fn6" In determining whether a defendant's negligence is the proximate cause of a plaintiff's injury, Pennsylvania has adopted the "substantial factor" test set forth in Section 431 of the Restatement (Second) of Torts (1965). *fn7" Under this test, a defendant's negligent conduct is not the proximate cause of plaintiff's injury unless "the alleged wrongful acts were a substantial factor in bringing about the plaintiff's harm." E.J. Stewart, Inc. v. Aitken Prods., Inc., 607 F. Supp. 883, 889 (E.D. Pa. 1985), aff'd, 779 F.2d 42 (3d Cir. 1986).

 As discussed above, the plaintiff bears the burden of establishing causation and must do so by a preponderance of the evidence:

 
The quantum of proof necessary to warrant a jury verdict for the plaintiff is, as we have stated earlier,. . . a preponderance of the evidence. This is made clear in Comment (a) to Section 433B of the Restatement [(Second) of Torts]:
 
. . .
 
a. Subsection (1) states the general rule (that the burden of proof as to causation is on the plaintiff). As on other issues in civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance of the evidence. This means that he must make it appear that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm.

 Hamil, 392 A.2d at 1288 (quoting Restatement (Second) of Torts § 433B (1965)). Therefore, Galullo must present evidence showing that it was more likely than not that the negligent conduct of Federal Express was the cause of her injuries.

 A. Plaintiff's Evidence of Causation

 During her deposition, Galullo initially testified that she slipped on a "slippery envelope" as indicated below:

 
Q. When you got to the garage door, what happened next?
 
A. Well, I opened the door and I thought I was going to see the man there. There was nobody there, so when I put my foot down here, I put my foot down on this slippery envelope-- I didn't think about the envelope. It didn't bother me. The envelope went under the tractor and I just laid there and tried to get up and tried to get up and I couldn't budge.

 (Galullo Dep. at 38). However, after further questioning, Galullo conceded that she had no personal knowledge of what caused her to fall:

 Q: At what point did you first see the package?

 A: I didn't see it, I felt it. I told my daughter, I says, look I stepped on something, I told her. I told her I said, look for it. I guess it was after when I was in the hospital -- I don't know how it was, I asked her and she said it was an envelope, remember. She said it was an envelope. I ...


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