The opinion of the court was delivered by: Magistrate Judge Blewitt
On November 23, 2004, Plaintiffs David and Judith Evans filed a Complaint, claiming that on July 28, 2003, Plaintiff David Evans slipped and fell as a result of grapes that were left on the floor of Defendant Walmart's store located in Hazleton, Pennsylvania. (Doc. 1). Plaintiffs seeks damages for alleged injuries to Mr. Evans caused by the fall, and Mrs. Evans asserted a claim for loss of consortium.*fn1 Discovery is completed. Trial is set for October 9, 2007. (Doc. 31). The parties consented to proceed before the undersigned pursuant to 20 U.S.C. § 636(c). (Doc. 7). This Court has jurisdiction over this case pursuant to 28 U.S.C. §1332(a).
On July 26, 2007, Plaintiffs filed a Motion in limine to preclude evidence regarding Plaintiff David Evans' prior April 2007 convictions of Statutory Sexual Assault, Indecent Assault and Corruption of Minors. (Doc. 33, pp. 1-2, ¶ 4.). As noted, by Order of August 27, 2007, we granted Plaintiffs' Motion in limine. (Doc. 42).
Plaintiffs, David Evans and Judith Evans, his wife, have brought this slip and fall tort action against Defendant Walmart Stores, Inc. (Defendant "Walmart") alleging negligence on the part of Walmart and its employees in maintaining the floor of the Hazleton, Pennsylvania store which had grapes on it. On July 28, 2003, Plaintiff David Evans, a business invitee, alleges that he slipped and fell on grapes located on Walmart's floor. Plaintiffs aver that Defendant was negligent, in part, for failing to maintain the aisles of its store to make it safe for customers, failing to properly monitor and inspect its store, and failing to properly clean its store. (Doc. 1, p. 3, ¶ 14.). Plaintiff David Evans claims to have suffered many injuries as a result of the fall, some of which he claims are permanent, and now seeks to recover medical expenses, as well as damages for permanent injury, and past, present and future pain and suffering. (Doc. 1, pp. 1-3 and Count I). Plaintiff David Evans' claim for loss of life's pleasures, as noted above, has been limited with respect to his damages claim that is only related to the injuries he allegedly sustained after his fall. Plaintiff Judith Evans seeks damages for loss of consortium, which as noted above, has been limited by Plaintiffs. (Count II, Doc. 1).
On November 23, 2004, Plaintiffs filed a Complaint in this Court basing jurisdiction under 28 U.S.C. §1332(a), diversity, since Plaintiffs are Pennsylvania residents and Defendant Walmart is a Delaware corporation. (Doc. 1, pp. 1-2). Thereafter, Defendant Walmart filed an Answer with affirmative defenses. (Doc. 4). Discovery then ensued. Upon completion of discovery, Defendant Walmart filed a Motion for Summary Judgment (Doc. 35). Defendant's Motion has been briefed by the parties, along with submission of exhibits, and is now ripe for disposition. (Docs. 33, 36, and 40). As stated, the parties have consented to proceed before the undersigned pursuant to 28 U.S.C. § 636(c). (Doc. 7).
A. Motion for Summary Judgment
A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). An issue of fact is "`genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982), aff'd mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).
Moreover, the Third Circuit has recently indicated that "although the party opposing summary judgment is entitled to 'the benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and 'cannot rest solely on assertions made in the pleadings, legal memorandum or oral argument.'" Goode v. Nash, 2007 WL 2068365 (3d Cir. 2007)(Non-Precedential)(citation omitted).
"A landowner owes a duty to protect an invitee from the condition of its premises only if he or she (1) 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, and (2) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (3) fails to exercise reasonable care to protect them against the danger." Colihan, WL 141867, 3 (citing Smith v. Allen & O'Hara Developments, Inc., WL 529998, 2 (E.D.Pa. 1996)) (citing Restatement (Second) of Torts, § 343)). "A business invitee is a person invited to enter the land for a purpose directly or indirectly connected with the business dealings with the possessor of the land. Colihan, WL 141867, 2 (citing Ott v. Unclaimed Freight Co., et al., 577 A.2d 894, 896 (Pa. Super. 1990)) (citing Restatement (Second) of Torts § 332)).
III. Undisputed Material Facts
Defendant has incorporated its Statement of Material Facts ("SMF") into its Summary Judgment Motion. (Doc. 35). Plaintiffs have responded to Defendant's SMF's. (Doc. 40, pp. 1-3). Both parties have relied upon evidence in the record to support their SMF's and responses thereto.
Since ¶'s 1.-3., 5., 6., 8., 9., to the extent that Defendant employees testified that safety sweeps were performed several times throughout each day at the store, and 10. of Defendant's SMF's are admitted by Plaintiffs via their response to them pursuant to Local Rule 56.1, M.D. Pa., we shall incorporate them in their entirety herein by reference, and we shall not restate them. (Docs. 35, pp. 1-3 and Doc. 40, pp. 1-3). We also note that Defendant has supported the stated SMF's with citation to evidence as required. (Id.).
We find that ¶'s 11.-12. of Defendant's SMF (Doc. 35, p. 3), are both legal conclusions and as such are not proper SMF's. Further, both of these SMF's go to the ultimate issues that the trier of fact must determine.
Plaintiffs dispute ¶4. of Defendant's SMF. In ¶4., Defendant states that "Mrs. Evans did not see the grapes on the floor prior to her husband's fall." Defendant cites to its Ex. B, Doc. 35, which is Mrs. Evans' September 15, 2005 deposition testimony. We agree with Plaintiffs that Mrs. Evans' deposition testimony speaks for itself. Thus, we shall quote Mrs. Evans' testimony with respect to whether she saw the grapes on the floor, as follows:
Q: And did you see these grapes that were on the floor?
A: By the time I saw them he was already slipping and falling and going down on them. I turned around to say, you know, after looking at the moldy cantaloupe and that's when I noticed the grapes and by the time I went to call out watch your foot he was already slipping and falling. He was going -- he was in the process of going down.