The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court is the motion for summary judgment filed by Defendant Miggys Corporation Five & Six d/b/a Mignosi's Super Food Town ("defendant"). The motion has been fully briefed and is ripe for disposition.
This case involves a slip-and-fall accident suffered by Plaintiff Maureen Farina at a supermarket ("Food Town") operated by defendant in East Stroudsburg, Pennsylvania. (Def.'s Br. in Supp., Doc. 16 at 1). Food Town is a 25,000-square-foot store. (Id.) Maureen Farina and her husband Joseph (collectively "plaintiffs") entered Food Town on the morning of June 26, 2008 at approximately 11:00 a.m. to do some shopping. (Def.'s Motion for Summ. J., Doc. 13 at 1, ¶ 1). Ms. Farina was wearing cut-off pants, a sweatshirt, sandals, and a baseball cap at the time of the incident. (Id. at 2, ¶ 7). She claims that her sandals had a strap across the back, however this fact is contested by the testimony of assistant store manager, Leslie Goldfinger. (See id., citing Ms. Farina's Test. at 25; see also Mr. Goldfinger's Test. at 18). Neither of the plaintiffs had been in Food Town on a prior occasion. (Def.'s Br. in Supp., Doc. 16 at 1). After the plaintiffs entered the store, they walked to the deli department. (Def.'s Motion for Summ. J., Doc. 13 at 1, ¶ 4). Maureen Farina then walked to the dairy aisle by herself. (Id., ¶ 5). After taking fifteen to twenty steps in the dairy aisle, Ms. Farina claims to have slipped and fallen to the floor. (Pls.' Brief in Opp., Doc. 21 at 2, ¶ 8). As a result, Ms. Farina claims to have fractured her right patella. (Id. at 7). She remained on the floor for approximately twenty minutes after her fall, and was transported from the store by ambulance. (Def.'s Br. in Supp., Doc. 16 at 2).
Ms. Farina described the tile floor in the dairy aisle as "light" in color. (Ms. Farina's Test. at 27). Although the plaintiff claimed that the lighting in the store was "bright" and that "the store wasn't that crowded," she did not see any substance on the floor in the area where she fell at any time prior to her fall. (Pls.' Brief in Opp., Doc. 21 at 2, ¶ 6; Def.'s Motion for Summ. J., Doc. 13 at 2, ¶ 9). While Ms. Farina was on the floor after she fell, she put her left hand on the floor and felt something "sticky and gritty." (Id., ¶ 10). At no time did she look at the color of the substance on the floor. (Id., ¶ 11; Pls.' Brief in Opp., Doc. 21 at 2, ¶ 11).
Plaintiff Joseph Farina was advised about the incident by a store employee and went to the dairy aisle where he found his wife on the floor. (Def.'s Br. in Supp., Doc. 16 at 2). He noticed a "yellow-orange slime" or "grime" on the floor in the immediate area around his wife, which he presumed to be mango or egg yolk. (Id. citing Mr. Farina's Test. at 10, 14, 17). He did not, however, see any fruit or egg shell in the area. (Id. citing Mr. Farina's Test. at 11, 16). He stated that slime was "within a one yard square area" in the center of the aisle, around his wife. (Id. citing Mr. Farina's Test. at 14; Pls.' Brief in Opp., Doc. 21 at 12, citing Mr. Farina's Test. at 10,14).
Leslie Goldfinger was the assistant store manage at Food Town at the time of the incident. (Def.'s Motion for Summ. J., Doc. 13. at 3, ¶ 16). On June 26, 2008, his responsibilities encompassed a number of tasks including watching the floor for things such as debris and spills. (Def.'s Br. in Supp., Doc. 16 at 3 citing Mr. Goldfinger's Test. at 6-7; Pls.' Brief in Opp., Doc. 21 at 8). Additionally, Mr. Goldfinger said all department managers and store employees were to keep watch over the floors and make sure they were clean. (Def.'s Br. in Supp., Doc. 16 at 3 citing Mr. Goldfinger's Test. at 7-8, 14). Mr. Goldfinger "believe[d]" that there were three maintenance workers on duty that were supposed to sweep the floors, and clean up spills approximately once an hour and record these inspections on "sign-off sheets." (Id. citing Mr. Goldfinger's Test. at 7-8, 14; Def.'s Motion for Summ. J., Doc. 13. at 3). No schedule or "sign-off sheet" relating to this incident has been produced. (Pls.' Brief in Opp., Doc. 21 at 10-11).
Mr. Goldfinger recalled walking down the dairy aisle between fifteen to twenty minutes prior to the incident. (Mr. Goldfinger's Test at 15-16; Ms. Farina's Test. at 11-13). His purpose for being in the dairy aisle, however, was to speak with a vendor, not to inspect the floors. (Pls.' Brief in Opp., Doc. 21 at 3, ¶ 21). Furthermore, Mr. Goldfinger testified that he could not see the spot where Ms. Farina fell because it was almost 20 feet away from where he had been. See id. After Mr. Goldfinger was informed that a customer had fallen, he walked to the dairy aisle. (Def.'s Br. in Supp., Doc. 16 at 3). In the dairy aisle, Mr. Goldfinger claims to have found a piece of squashed pineapple, -- which appeared to have been stepped on -- he noticed a skid mark on the floor, and he discovered that the bottom of Ms. Farina's sandal was wet. (Def.'s Br. in Supp., Doc. 16 at 3, ¶ 22 citing Mr. Goldfinger's Testimony at 16-18). Mr. Goldfinger also examined the floor, and did not find any moisture on the floor anywhere other than the area where the piece of pineapple was sitting. (Mr. Goldfinger's Test. at 18).
Mr. Goldfinger testified that cut pineapple is only sold in sealed containers at the opposite end of the store, in the produce department. (Def.'s Motion for Summ. J., Doc. 13, at 3, 4, ¶¶ 24, 31). Nevertheless, Mr. Goldfinger admitted that defendant was aware that the fruit cups were frequently opened by customers despite being taped shut. (Mr. Goldfinger's Test. at 17). In addition, Mr. Goldfinger stated that "a lot of grazing" occurred at Food Town -- meaning that there was a customer practice by which customers would pick up grocery items and, ". . . from time to time, people throw things, you know, they'll try to eat things and throw the rest out and throw it on the floor." (Mr. Goldfinger's Test. at 7).
Following the June, 26, 2008 incident at Food Town, Ms. Farina underwent an "open reduction and internal fixation of the right patella with tension band construct, on July 2, 2008." (Pls.' Brief in Opp., Doc. 21 at 7). This was followed up by a continuous course of treatment with an orthopedist, and physical therapy through January 20, 2009. (Id.) A second surgery was performed on September 11, 2008 in order to remove the hardware in her knee from the first surgery. (Id.) Ms. Farina claims that she continues to suffer from stiffness and soreness and a limitation of her physical activities. (Id.) She now requires the use of a cane when walking. (Id.)
Plaintiffs filed a complaint with this court on January 23, 2009. (Compl., Doc. 1). The complaint raises claims for negligence and loss of consortium. Id. at 2. Following discovery, defendant filed the motion for summary judgment being addressed here.
Plaintiffs Maureen and Joseph Farina are both citizens and residents of the state of New York. (Compl., Doc. 1, ¶ 1). Defendant Miggys Corporation Five & Six d/b/a Mignosi's Super Food Town is a Pennsylvania company with its principal place of business in the Commonwealth. The amount in controversy exceeds $75,000.00. Thus, this court has jurisdiction pursuant to 28 U.S.C. § 1332. Because this court is sitting in diversity, the substantive law of Pennsylvania ...