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Marion Felix v. Gms

November 17, 2011

MARION FELIX
PLAINTIFF,
v.
GMS, ZALLIE HOLDINGS, INC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

I. INTRODUCTION

Plaintiff Marion Felix ("Plaintiff") brings this slip and fall negligence action against (1) GMS, Zallie Holdings, Inc.,*fn1 and (2) Canada Dry Delaware Valley Bottling Company (collectively, "Defendants"). Plaintiff alleges an injury following a fall in the frozen food section of a grocery store. Defendants asserted cross-claims against each other for contribution and/or indemnity. On September 1, 2011, Defendant-Canada Dry moved for summary judgment, and on September 2, 2011, Defendant-GMS did the same. Plaintiff opposed both, and the motions are now fully briefed and ripe for disposition.

II. BACKGROUND*fn2

This suit relates to Plaintiff's slip and fall at the ShopRite supermarket on Knorr Street in Philadelphia, Pennsylvania. Pl.'s Compl. ¶ 10, ECF No. 1. Plaintiff arrived at ShopRite for the purpose of grocery shopping. She entered a store aisle, which contained a freezer section, and without noticing a puddle of liquid on the floor, slipped and fell onto her back allegedly sustaining injuries to her neck, back, arms, legs, buttocks, heels, and surrounding body parts. Id. ¶ 17. After this fall, and while still on the ground, Plaintiff observed that the substance she slipped on was a puddle of clear liquid, approximately one-quarter to one-half inch deep with several dust particles floating on its surface. Pl.'s Br. in Resp. to Def.-GMS's Mot. for Summ. J. 15, ECF 23. Plaintiff did not know how long the liquid had been on the floor, nor could she identify the source of the liquid. Felix Dep. 44:19-23, May 3, 2011.

ShopRite's manager, Mike Roth, responded to Plaintiff's fall. Pl.'s Br. in Resp. to Def.-GMS's Mot. for Summ. J., Ex. I.

Mr. Roth stated that there was a Canada Dry pallet ten to twenty minutes before Plaintiff's fall in the same aisle and approximate location as Plaintiff's fall. Roth Dep. 40:4-11, July 12, 2011. And, because of the pallet's previous location, he assumed that the liquid Plaintiff fell on came from this pallet. Roth Dep. 39:1-4. Nonetheless, Mr. Roth did not see any liquid leak from the pallet or see any liquid on the floor at all before responding to Plaintiff's fall. Roth Dep. 38:20-24; 39:5-10.

Also present at the ShopRite was Plaintiff's boyfriend, Anthony Sofia. Pl.'s Br. in Resp. to Def.-GMS's Mot. for Summ. J. ¶ 11. He was in the check-out line during the time of the incident and did not witness Plaintiff's fall. Id. ¶ 12. A store employee alerted Mr. Sofia to Plaintiff's fall, and he went to her aid. Id. ¶ 13. Mr. Sofia testified that he noticed the puddle of clear liquid when he arrived at Plaintiff's side and that there was at least one footprint in this puddle. Sofia Dep. 51:21-52:1, July 7, 2011. He could not testify as to when this footprint was made, however. Sofia Dep. 52:2-5, 9-13. Similar to Plaintiff, Mr. Sofia could not identify the cause of the liquid accumulation nor provide evidence of how long the liquid was on the floor. Sofia Dep. 23:1-5.

Also in the store that day was an employee of Defendant-Canada Dry, Sean Early. Pl.'s Br. in Resp. to Def.-GMS's Mot. for Summ. J. 23. Mr. Early was in charge of stocking Canada Dry products at the ShopRite on the day of the incident.*fn3

Mr. Early states that during the course of his time at ShopRite that day he spilled a can of Sunkist soda and cleaned up this spill. Early Dep. 49:21-50:14.

Defendants separately moved for summary judgment arguing that they had no constructive notice of the hazardous condition in the aisle. And, because they had no constructive notice, they owed no duty to Plaintiff.

For the following reasons, the Court will grant Defendants' motions for summary judgment.

III. DISCUSSION

A. Legal Standard

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A motion for summary judgment will not be defeated by 'the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250.

B. Application

Defendants move for summary judgment. Both argue that the record is insufficient to show constructive notice of the hazardous condition*fn4 that caused Plaintiff's fall, as required under Pennsylvania law.

1. Negligence and Premises Liability Under Pennsylvania law,*fn5 a claim for negligence ...


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