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Katz v. Genuardi's Family Markets

July 8, 2010


The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge



Donna Katz ("Plaintiff") brought this action against Genuardi's Family Markets, Inc., Genuardi's Family Markets, LP, GFM Acquisition, LP, and GFM Holdings, LLC ("Defendants") seeking damages relating to injuries she allegedly sustained as a result of a fall on the premises of a supermarket operated by Defendants. The parties consented to magistrate judge jurisdiction. Defendants have moved for summary judgment.*fn1 The court heard oral argument on June 18, 2010. For the reasons set forth below, we will GRANT Defendants' motion.


Summary judgment "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)(2) (Dec. 1, 2009).

An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it could be said to affect the outcome of the case under governing law. Id. The moving party bears the initial burden of "'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In order to successfully oppose a properly supported motion, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(e)). In reviewing the summary judgment record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The court may not make credibility determinations or weigh the evidence in making its determination. See Anderson, 477 U.S. at 255 (observing that these are jury functions).


The papers before us show that Plaintiff entered one of Defendants' Montgomery County stores between 1:15 and 1:30 p.m. on February 23, 2007 when she sought to purchase her lunch. Shortly after entering the store, she fell forward, landing on her knees while bracing her fall with her right hand. (Katz Dep. [Pl. Opp. Mot. Summ. Jmt. Ex. A] at 45-49.) Michael Landolfi, a Frito-Lay salesman, who had been attending to his display, came to Plaintiff's aid and directed her to the store manager's office. The store manager, Donna Mundy, responded to Plaintiff and asked her about the extent of her injuries. Plaintiff reported that she did not require an ambulance or any other immediate medical attention. Mundy then walked with Plaintiff back to the area where she fell and inspected the floor, with particular attention to the space in front of a nearby beverage cooler. Mundy reported that she found nothing out of order. Store surveillance video footage*fn2 shows, however, that about one minute after Plaintiff's fall, and prior to Mundy's inspection, Landolfi had moved a nearby rug over the area of the fall.

Landolfi testified that he had been in that area of the store for approximately five minutes before Plaintiff fell. (Landolfi Dep. [Defs. Reply Ex. A] at 26.) He stated that he was not aware of anyone having dropped a bottle or spilled any liquid in the area where Plaintiff fell before she fell, nor did he see any liquid, glass, or anything else on the floor which could have caused the fall. (Landolfi Dep. [Defs. Reply Ex. A] at 26, 29; Landolfi Dep. [Pl. Opp. to Defs. Mot. Summ. Jmt. Ex. D] at 47.) When confronted with the surveillance tape showing that he moved the rug shortly after the fall, he could offer no explanation about why he did so, although he answered in the negative when asked if it "ha[d] anything to do with wetness or glass on the floor[.]" (Landolfi Dep. [Pl. Opp. to Defs. Mot. Summ. Jmt. Ex. D] at 47.)

Plaintiff, on her part, testified at her deposition that she fell because "there was liquid. There was liquid." (Katz Dep. [Pl. Opp. Mot. Summ. Jmt. Ex. A] at 50.) She also stated, however, that she did not see any liquid in the area where she fell either before or after her fall and that there was no dampness on her clothing. Similarly, she did not see any indication of broken glass in the area. (Id. at 48, 50-51, 53, 55-56.) Plaintiff also testified that she overheard Landolfi tell Mundy when Mundy accompanied her to the site of the fall: "There was a liquid and glass spilled. It wasn't cleaned up properly." (Katz Dep. [Pl. Opp. Mot. Summ. Jmt. Ex. A] at 52.)


Defendants have moved for summary judgment on the grounds that Plaintiff has failed to come forward with sufficient evidence to show that there is a genuine issue as to whether Defendants caused any hazardous condition to be on the floor or that they were aware of the existence of any hazardous condition prior to the fall. (Def. Mot. Summ. Jmt. ¶¶ 13-14, 18.) We agree that this deficiency requires judgment to be entered in favor of Defendants.*fn3

The parties do not dispute that Plaintiff was an invitee in Defendants' store and that Defendants would therefore be subject to liability for physical harm caused to Plaintiff by a condition on the land (or in the store) if the Defendants: (a) know of the condition, or by the existence 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 the invitees will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect them against the danger. Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983) (citing Restatement (Second) of Torts § 343 (1965)). A possessor of land, however, is not an insurer of the visitor's safety. See, e.g., Rabutino v. Freedom State Realty Co., 809 A.2d 933, 939 (Pa. Super. Ct. 2002); Moultrey v. Great Am. & Pac. Tea Co., 422 A.2d 593, 595 (Pa. Super. Ct. 1980). Moreover, "the mere happening of an accident or an injury does not establish negligence nor raise an inference or presumption of negligence nor make out a prima facie case of negligence." Amon v. Shemaka, 214 A.2d 238, 239 (Pa. 1965).

Pennsylvania courts recognize that if the harmful condition is traceable to the acts of the possessor or its agents, the plaintiff need not prove any notice in order for the possessor to be liable. Moultrey, 422 A.2d at 596. A jury may also infer actual notice if there is evidence that the condition is one that the owner knows has frequently recurred. Id. If the condition is due to the actions of others for whom the possessor is not accountable, however, the possessor cannot be liable without "other evidence which tends to prove that the owner had actual notice of the ...

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