The opinion of the court was delivered by: Linda K. Caracappa United States Magistrate Judge
Plaintiff Stephen Vesotsky, Jr. brings this premises liability action against defendant Home Depot U.S.A., Inc. ("Home Depot") for injuries allegedly sustained from a slip and fall in the parking lot of Home Depot's store at 2200 West Oregon Avenue, Philadelphia, Pennsylvania. On April 13, 2010, plaintiff filed his complaint in the Pennsylvania Court of Common Pleas, Philadelphia County, claiming negligence and carelessness. Home Depot removed this action to this court on September 23, 2010.
Presently before this court is defendant Home Depot's motion for summary judgment (Document # 24) and plaintiff's response in opposition thereto (Document # 25). For the reasons that follow, Home Depot's motion for summary judgment is granted.
The following facts are viewed in the light most favorable to the plaintiff. On June 7, 2008, plaintiff went to the Home Depot store to purchase lighting fixtures for plaintiff's business partner, Chris Sincavage. (Def's Mot for Summ. J. , Ex. D, plaintiff's Dep. ("Pl's Dep.") at 19-20). After arriving at defendant's store, plaintiff found and pulled into a parking spot that was bordered on both sides by parked cars. (Pl's Dep. 21). As plaintiff pulled into the parking spot, plaintiff did not see paint on the ground in the area of the parking spot. (Pl's Dep. 24-25). As plaintiff exited his vehicle plaintiff's feet came in contact with the parking lot surface and plaintiff slipped and fell on an area of slick paint. (Pl's Dep. 32-33, 41). While on the ground, plaintiff saw a half-smoked cigarette sitting on top of the paint. (Pl's Dep. 13). Plaintiff also noted that the paint had film on the top of it and there were tire marks through the paint. (Pl's Dep. 11, 41). Plaintiff also noted that the paint spill was round and about the size of a tire. (Pl's Dep. 41). Plaintiff stood on his own and went into the store. (Pl's Dep. 36-37).
Home Depot had full-time lot attendants whose everyday job responsibilities included surveying the parking lot to look for spills or other issues. (Dep of Joseph Raggio, 35-36). If the lot attendant located a spill it would have been their responsibility to inform a manager or supervisor. (Id., 40). There were more then ten occasions during 2008 when a lot attendant informed the assistant manager of an issue in the parking lot. (Id., 32).
Federal Rule of Civil Procedure 56(c) states that 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." Fed.R.Civ.P. 56(c); see also Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986); Williams v. Borough of West Chester, 891 F.2d 458, 463-464 (3d Cir. 1989). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For there to be a "genuine" issue, a reasonable fact finder must be able to render a decision in favor of the non-moving party. Id.
On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. County of Allegheny, Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party. See Anderson, 477 U.S. at 255. A party seeking summary judgment always bears the initial responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp, 477 U.S. at 322.
Once the moving party has carried this initial burden, Rule 56(e) shifts the burden to the nonmoving party as follows:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed.R.Civ.P. 56(e).
However, to raise a genuine issue of material fact, the summary judgment opponent need not match, item for item, each piece of evidence proffered by the moving party, but simply must exceed the 'mere scintilla' standard. Petruzzi's ICA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir.), cert. denied, 510 U.S. 994 (1993). Summary judgment may be granted only if, after viewing all evidence in the light most favorable to the non-moving party, no jury could decide in that party's favor. Tigg Corp., 822 F.2d at 361.
Under Pennsylvania law, a claim for negligence requires proof ...