The opinion of the court was delivered by: (Judge Munley)
Before the court is defendant Webilt Walk-Ins's motion for summary judgment. Having been fully briefed and argued, the matter is ripe for disposition. Background
The case involves a workplace slip-and-fall accident that occurred on March 3, 2006 at the Wal-Mart store in Millford, Pennsylvania. On that date, plaintiff Velma LaPlaint was employed by the Wal-Mart as a "deli associate." (Defendant Webilt Walk-Ins' Statement of Material Facts (Doc. 75) (hereinafter "defendant's statement") at ¶ 1). Plaintiff alleges that an accumulation of ice just inside the door threshold for the walk-in deli freezer caused her to fall, leading to serious injuries. (Id. at ¶ 3). She contends that the icy condition which caused her to fall was created by a defectively designed freezer and the defendant's negligence in not taking steps to prevent ice accumulation. (Id. at ¶ 4).
The accident in question occurred at approximately 7:30 a.m. (Id. at ¶ 11). Plaintiff was the first person in the deli freezer that morning. (Id.). She began working, and as she did so her right foot slipped on ice in the doorway and she fell. (Id.). LaPlaint had noticed an ice puddle the width of the doorway and about 15-20" wide as she entered the freezer. (Id. at ¶ 12). She jumped over it. (Id.). This ice puddle had always been present in the freezer, and Wal-Mart management was aware of it. (Id. at ¶ 13). Plaintiff contends that the puddle varied in size and shape, and that the water came from the cleaning of the floor outside the freezer; water seeped in. (Plaintiff's Response to Defendant's Statement (Doc. 79) (hereinafter "plaintiff's response") at ¶ 13). The parties disagree about whether actions--such as attaching a plate to the inside of the freezer door--could have been taken to prevent water from migrating into the freezer from the cleaning process. (defendant's statement at ¶ 14; plaintiff's response at ¶ 14). They agree, however, that plaintiff was aware that this problem was a daily occurrence. (defendant's statement at ¶ 13).
The process of cleaning the deli floor involved a great deal of hosing and spraying. (Id. at ¶¶ 19-20). As part of the procedure, employees would use squeegees to move water away from the freezer door. (Id. at ¶ 19). The parties disagree about how careful workers were to prevent water from entering the freezer during this process. Defendant insists that employees used hoses to spray plastic refrigeration flaps hanging in the doorway and did not check to see if water flowed into the freezer from this process and other cleaning methods. (Id. at ¶¶ 15-17). Plaintiff asserts that employees did not spray water directly into the cooler, and that water flowed inside frequently.*fn1 (plaintiff's response at ¶ 17). Defendant also contends that Wal-Mart workers used a high-pressure hose to wash inside the freezer, squeegeeing the subsequent water towards a floor drain. (defendant's statement at ¶ 21). Plaintiff denies that this procedure occurred. (plaintiff's response at ¶ 21). In any case, both sides agree that ice frequently accumulated in the freezer. (defendant's statement at ¶ 30). Workers took various steps to try and remove it. (Id.).
According to the defendant, all of the evidence indicates that ice in the deli freezer came from a result of actions to hose the freezer during cleaning, a poor slope in the floor, and lax housekeeping by Wal-Mart. (Id. at ¶ 25). None of the other freezers in the store had ice accumulate in them. (Id. at ¶ 27). Defendant also emphasizes that Wal-Mart employees did not check the freezers to see if water had accumulated inside after they cleaned. (Id. at ¶ 29). Plaintiff insists that this seeping and ice accumulation came as a result of an improper hinge and gasket installed on the freezer door. (plaintiff's response at ¶¶ 25-26). The water "infiltrated" the freezer after every cleaning. (Id. at ¶ 30). From the plaintiff's perspective, no amount of improved maintenance could have prevented the seepage problem. (Id. at ¶ 44).
Defendant Cleveland Construction Company was the general contractor on the remodeling of the Wal-Mart that transformed it into a Super Center. (defendant's statement at ¶ 31). The project opened in July 2006. (Id.). A subcontractor for Cleveland supplied the cement floor in the area near the deli. (Id. at ¶ 32). That contractor sealed the floor. (Id.). Defendant Professional Installations later installed the deli freezer, encountering problems with leveling the floors. (Id. at ¶ 33). Various other subcontractors and workers were involved in installing the refrigerator and related materials. (Id. at ¶ 34). Among them were third-party defendant ABC Refrigeration. (Id.). Wal-Mart and Cleveland Construction reviewed the installation at the completion of the work. (Id. at ¶ 35). Jim Wetzel, assistant superintendent of Cleveland Construction, performed a checklist examination of the deli-bakery freezer on September 15, 2005. (Id. at ¶ 37). According to Wetzel's checklist, 28 categories of inspection were performed, and the panels found to be level and plumb and the doors adjusted properly with "no daylight door sweep." (Id.). Defendant also contends that Wal-Mart employed an independent testing agency to see that the project met specifications, but no records from the testing has been produced. (Id. at ¶ 36; plaintiff's response at ¶ 36).
A job list generated by Kysor Panel Systems on November 16, 2005 contained a directive to adjust the door sweep for the deli bakery/freezer. (defendant's statement at ¶ 38). The company serviced the bakery freezer on January 31, 2006. (Id. at ¶ 39). This unit is the same one as the deli freezer in question, and no evidence existed to demonstrate water traveled under the bakery freezer door. (Id. at ¶ 40). The parties disagree over whether the doors are identical. (plaintiff's response at ¶ 40).
The product in question here is the "freezer door sweep." (defendant's statement at ¶ 41). The sweep sits at the bottom of the freezer door, and defendant states that its purpose is to "keep hot air/moisture laden air from traveling underneath and into the freezer and thus prevent thermal frost/ice from building up on the floor inside." (Id.). The sweep contains a heater designed to keep as much heat as possible "at the point of thermal transfer." (Id.). The device is not designed to keep out water and is meant to be installed on a level slab. (Id.). Plaintiff claims that this device was defective because a "compressible bulb gasket and cam hinges" should have been used to lower the door at the point of closure, compressing the gasket and preventing water from seeping in. (plaintiff's response at ¶ 41). That defect, along with a floor that sloped towards the interior of the freezer rather than away from it, allowed seepage. (Id.). Such devices are common and available and should have been installed here, plaintiff claims. (Id.).
Twice in a short time before the March 3, 2006 accident, Wal-Mart called ABC refrigeration to report water accumulating and freezing at the threshold of the deli freezer. (defendant's statement at ¶ 42). ABC adjusted the door sweep and advised Wal-Mart that the problem was housekeeping; a worker allegedly was spraying inside the freezer. (Id. at ¶ 43). Fred Dollar of ABC Refrigeration told Walmart that the floor was not level, but sloped towards the freezer door and seep underneath it. (Id. at ¶ 45). Wal-Mart was advised that the door sweep would not prevent water seepage, and the company promised to take action to correct the problem. (Id. at ¶ 44). According to plaintiff, Wal-Mart never found a way to prevent this seepage until a new part, a diamond plate at the freezer threshold, was installed. (plaintiff's response at ¶ 44). On February 27, 2006, ABC Refrigeration performed maintenance on the door. (defendant's statement at ¶ 47). Defendant contends that ABC replaced the sweep, but plaintiff contends that the evidence shows that ABC merely readjusted the door sweep to its proper place and reattached the old sweep with proper screws. (Id.; plaintiff's response at ¶ 47). Cleveland Construction was responsible for ensuring the deli freezer doorway threshold was flush, but there is no evidence that Cleveland ever checked to ensure that the doorway threshold was flush. (defendant's statement at ¶¶ 50-51).
Plaintiff filed a complaint in this matter on November 17, 2006 (Doc. 1). She filed several amended complaints, the final on February 14, 2008 (Doc. 26). That complaint raised several counts, several of which involve the moving defendant. Count I accuses Webilt of strict products liability in the manufacture of the freezer door. Count II alleges negligence against Defendant Webilt for failing adequately to warn users about potential hazards with that freezer. Count III alleges breach of warranty against Webilt. Webilt allegedly sold a freezer that was neither merchantable nor fit for a particular purpose for which it was intended. After answers, counterclaims, and crossclaims, Defendant Webilt filed the instant motion. The parties then briefed the motion and the court held argument, bringing the case to its present posture.
This court has jurisdiction pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. Plaintiff is a Pennsylvania resident. The defendants are corporations with citizenships in other states. The amount in controversy exceeds $75,000. Because the court is sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). Legal Standard
The case is before the court on defendant's motion for summary judgment. Granting summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986).
The defendant seeks summary judgment on several grounds. The court will address each in turn.
1. Strict Products Liability
The defendant first argues that the court should grant summary judgment on plaintiff's strict products liability claim. The defendant argues that nothing in the evidence indicates that the ...