The opinion of the court was delivered by: (Chief Judge Kane)
Before the Court is Defendant Diversified Maintenance Systems, Inc.'s motion for summary judgment. (Doc. No. 26.) The matter is ripe for disposition, and, for the reasons stated more fully herein, the Court will deny the motion.
On November 9, 2010, Plaintiffs Robert Steinbacher and Michelle Steinbacher initiated this action by filing a complaint sounding in negligence and loss of consortium against Defendant Diversified Maintenance Systems, Inc. (Doc. No. 1.) The dispute in this case concerns an injury that Mr. Steinbacher suffered at his workplace, the premises of which were cleaned and maintained by Defendant. The following facts of record are undisputed, unless otherwise noted.
On December 17, 2008, Mr. Steinbacher was acting within the course and scope of his employment for United Parcel Service (UPS) at the UPS facility in Harrisburg, PA, when he stepped into an open drainage grate and fell, resulting in injuries. (Doc. Nos. 26-1, 28 ¶¶ 2-3.) Just prior to the fall, Mr. Steinbacher was moving an empty trailer away from the UPS building so that another full trailer could be unloaded. (Id. ¶ 6.)
At the time of the fall, Defendant had a contract with UPS to provide certain cleaning and maintenance services at the UPS facility in Harrisburg. (Doc. Nos. 26-1, 28 ¶ 11.) Pursuant to the contract, entitled "Master Housekeeping Services Agreement," Defendant agreed to perform those services described in an individual work order from UPS. (Id. ¶¶ 12, 15.) The work order relevant to the instant matter required Defendant to perform spot sweeping and litter vacuuming in the area within fifty feet from the UPS building perimeter near the loading doors, which included the area in which Mr. Steinbacher's fall occurred. (Id. ¶ 19.)
The Master Housekeeping Services Agreement also sets forth certain "special tasks" that Defendant was to perform periodically "when requested in writing by an authorized UPS representative." (Id. ¶ 21.) Among the special tasks listed in the applicable work order were vacuuming the drain grates, and cleaning the floor drains. (Id. ¶¶ 23-25.) Tom Leblanc, the plant engineering manager at the UPS facility in Harrisburg, testified in his deposition that drain trench cleaning was a periodic task, performed either at his direction or that of Matt Whitmer, another UPS employee. (Id. ¶¶ 26-28.) While the Master Housekeeping Services Agreement did not authorize Defendants to clean the drains without direction from UPS, the contract required Defendant to "properly guard the Services and areas affected by its Services to prevent any person or persons from being injured by its Services or by the condition of the facility." (Id.; Doc. No. 26-4 ¶ 6.b.)
Mr. Leblanc testified that he has observed the trench drains overflowing, and other UPS employees testified that they have observed the trench grates becoming dislodged when an excess accumulation of trash was present in the trench coupled with rainfall. (Doc. Nos. 26-1, 28 ¶ 32.) Mr. Leblanc also testified that the grates located near the unloading docks sometimes needed to be replaced if they were damaged or rusted, and that the grates would be replaced by either UPS employees or outside contractors. (Id. ¶¶ 36-37.) The last time that Defendant cleared the trench drains prior to Mr. Steinbacher's fall was on February 28, 2008. (Id. ¶ 39.)
Plaintiffs provided an expert report on liability by David Fleisher, in which he opined that: (1) the trench drains should have been cleaned of debris; (2) the grate was displaced due to a buildup of debris that Defendant should have seen and reported to UPS; and (3) the failure to maintain a clean trench drain caused a violation of the International Property Maintenance Code.*fn1 (Id. ¶¶ 42-43; Doc. No. 26-13 at 12.)
On July 20, 2012, following discovery, Defendant filed the instant motion for summary judgment. (Doc. No. 26.)
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is material if it might affect the outcome of the suit under the applicable law, and it is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52. In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 794 (3d Cir. 2007).
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Grp.. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is warranted. Celotex, 477 U.S. at 322.
With respect to the sufficiency of the evidence that the non-moving party must provide, a court should grant summary judgment where the non-movant's evidence is merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Further, a party may not defeat a motion for ...