The opinion of the court was delivered by: Ambrose, Chief District Judge.
OPINION and ORDER OF COURT
Pending before the Court is a Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendant J.C. Penney Company, Inc. ("Defendant"). (Docket No. 3). Plaintiff filed a response and brief in opposition thereto. (Docket Nos. 7-8). After a careful review of the submissions by the parties and for the reasons discussed in this Opinion, the Motion to Dismiss is denied.
Plaintiff, Marianne Lewis ("Plaintiff"), filed her Complaint against Defendant in the Court of Common Pleas of Allegheny County on or about April 26, 2007. On May 15, 2007, Defendant removed the case to this court based on diversity of citizenship. (Docket No. 1). Plaintiff's Complaint sets forth one count for negligence against Defendant arising from a slip and fall incident in which Plaintiff allegedly tripped on a discarded paper flyer and fell in a store owned and managed by Defendant. Defendant filed a Notion to Dismiss for failure to state a claim against it and Brief in Support. (Docket Nos. 3, 4). Plaintiff has filed a Response and Brief in Opposition. (Docket Nos. 7, 8). The issues are now ripe for my review.
In deciding a Motion to Dismiss, all factual allegations, and all reasonable inferences therefrom, must be accepted as true and viewed in the light most favorable to the plaintiff. Colburn v. Upper Darby Twp., 838 F.2d 663, 666 (3d Cir. 1988). I may dismiss a complaint only if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of her claims which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957). In ruling on a motion for failure to state a claim, I must look to "whether sufficient facts are pleaded to determine that the complaint is not frivolous, and to provide defendants with adequate notice to frame an answer." Colburn, 838 F.2d at 666. "The issue is not whether [the] plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed, it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Lake v. Arnold, 112 F.3d 682, 688 (3d Cir. 1997).
Although a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept legal or unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See Miree v. DeKalb County, 433 U.S. 25, 27 n.2 (1977). Moreover, the plaintiff must set forth sufficient information to outline the elements of her claim or to permit inferences to be drawn that these elements exist. See Fed. R. Civ. P. 8(a)(2); Conley, 355 U.S. at 45-46. With this standard in mind, I turn now to the issues of this case.
Defendant argues that Plaintiff's Complaint should be dismissed because she has failed to plead the element of notice as required for a negligence claim sounding in premises liability involving a transitory condition. I disagree.
Courts applying Pennsylvania law follow Restatement (Second) Torts § 343 in determining whether a store owner has breached a duty of care to its patrons. See Porro v. Century III Assocs., 846 A.2d 1282, 1285 (Pa. Super. Ct. 2004); Myers v. Penn Traffic Co., 606 A.2d 926, 928 (Pa. Super. Ct. 1992).*fn1 Section 343 provides:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (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 invitees,
(b) should expect that they will not discover or realize the danger, or will fail to protect ...