The opinion of the court was delivered by: Joyner, J.
This dispute has been brought before the Court on Defendants Rita's Water Ice Real Estate Company and Rita's Real Estate Franchise Company's Motion for Summary Judgment (Doc. No. 34) and Defendants Lincoln Plaza Associates and Control Building Services' Motion for Summary Judgment (Doc. No. 35). For the reasons set forth below, the Rita's entities' Motion shall be GRANTED, and Lincoln Plaza Associates and Control Building Services' Motion shall be GRANTED in part and DENIED in part.
Plaintiffs are husband and wife currently living in Stockbridge, Georgia. On Saturday, February 24, 2007, Plaintiffs were shopping at the Oxford Valley Mall, in Langhorne, Pennsylvania, which is owned and operated by Defendant Lincoln Plaza Associates. After doing some shopping, Plaintiffs moved to the food court of the mall, sometime around 5:30 or 6:00 P.M.
While walking approximately 15 feet from the Rita's Water Ice kiosk, at that time owned by Rita's Water Ice Oxford Valley Mall, but subsequently taken over by Defendant Rita's Water Ice Real Estate Company, Plaintiff Aida Torres suddenly slipped and fell. When Plaintiff hit the ground she noticed that there was spilled ice cream on the floor that was partially melted. Although a portion of the ice cream was still solid and still had some sort of red topping covering it, enough of the ice cream had melted so that it covered Plaintiff's clothing and soaked through her sock, and Plaintiff states that the melted ice cream was still cold. Following the accident, Plaintiff Aida Torres alleges that she suffered several injuries; she hurt her knee, elbow, and lower back, and asserts that the injuries to her knee and lower back continue to cause her pain and discomfort. Plaintiff Edwin Torres also seeks damages for loss of consortium, alleging that he has lost the comfort, society, and companionship of his wife.
Plaintiffs assert that these injuries were suffered due to Defendants' negligence. This charge is brought against Lincoln Plaza Associates, the owner of the mall, Control Building Services, the company in charge of cleaning the mall, Rita's Water Ice Real Estate Company, the operator of the Rita's kiosk outside of which Plaintiff fell, and Rita's Water Ice Franchise Company, the Rita's corporate entity in charge of franchising operations. Plaintiffs assert two alternative theories of liability. First, they allege that Defendants were liable for failing to remedy the dangerous condition created by this specific ice cream spill. Second, Plaintiffs allege that Defendants were liable for not putting better safety precautions in place to prevent harm from dangerous conditions created by third parties.*fn1 Although Defendants do not agree about who owed the duty to Plaintiffs in this situation, they all contest that they had notice of the dangerous condition, and, therefore, urge this Court to find that none of them were negligent. Further, Defendants maintain that adequate safety precautions were in place to protect patrons from dangerous conditions, and that summary judgment is also appropriate on that issue.
When a party files for summary judgment, "[t]he judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In making a summary judgment determination, all inferences must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In order to survive a motion for summary judgment, the non-moving party cannot rely solely on the unsupported allegations found in the pleadings. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, the non-moving party must raise more than "some metaphysical doubt" as to a material fact. Matsushita, 475 U.S. at 586. In making a decision as to whether there is a "genuine" issue of fact, the court must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
As this case is in federal court on diversity jurisdiction, we will apply Pennsylvania law to this dispute. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).*fn2 To prevail on a negligence claim under Pennsylvania law, the plaintiff must establish that the defendant had a duty to conform to a certain standard of conduct, that the defendant breached this duty, and that this breach caused an injury to the plaintiff. Macina v. McAdams, 421 A.2d 432, 434 (Pa. Super. Ct. 1980). In premises liability cases, the applicable standard of care depends on the status of the guest. Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). When a person is invited to the land "for a purpose directly or indirectly connected with business dealings with the possessor of the land," that person is considered an invitee. Restatement (Second) of Torts § 332 (1965).*fn3 A landowner must protect an invitee from foreseeable harm, meaning that the duty to protect only arises in circumstances where the landowner knows, or should know, of a dangerous condition on the land that poses an unreasonable risk that the invitee would not be expected to discover. Carrender, 469 A.2d at 123. In such situations, the landowner must exercise reasonable care to protect the invitee. Id. A landowner, therefore, has no duty to protect or warn against obvious dangers that would be noticed by a reasonable invitee exercising normal perception. Id. Further, as the duty only arises if the landowner knew or should have known of the dangerous condition, no finding of negligence can be made unless there is first a finding that the landowner had actual or constructive notice of the condition. Estate of Swift v. Ne. Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super. Ct. 1997).
Actual notice is "notice given directly to, or received personally by, a party." Black's Law Dictionary (8th ed. 2004). In other words, the plaintiff must demonstrate that the defendant knew of the dangerous condition and not merely that the defendant should have known of the condition. Constructive notice, on the other hand, is "notice presumed by law to have been acquired by a person and thus imputed to that person." Id. In determining constructive notice, courts consider a number of factors, including the number of people on the premises, the type of dangerous condition, the location of the dangerous condition, the cause of the condition, and whether the defendant had an opportunity to fix the condition. Craig v. Franklin Mills Assocs., 555 F. Supp. 2d 547, 549-50 (E.D. Pa. 2008). The time between the creation of the unsafe condition and the accident, however, is one of the most important factors for the court to consider. Neve v. Insalaco's, 771 A.2d 786, 791 (Pa. Super. Ct. 2001).
Although, as a general matter, it is permissible for a plaintiff to use circumstantial evidence to establish negligence, Miller v. Hickey, 81 A.2d 910, 914 (Pa. 1951), a court cannot allow a case to continue to trial if the jury would be required to rely upon "conjecture, guess or suspicion" to establish constructive notice. Craig, 555 F. Supp. 2d at 550 (citing Lanni v. Pa. R.R. Co., 88 A.2d 887, 889 (Pa. 1952)). Indeed,
[w]here... the evidence indicates that the transitory condition is traceable to persons other than those for whom the owner is... ordinarily accountable, the jury may not consider the owner's ultimate liability in the absence of other evidence which tends to prove that the owner had actual notice of the condition or that the condition existed for such ...