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Sarver v. Sherwin Williams Co.

United States District Court, Third Circuit

July 31, 2013



LAWRENCE F. STENGEL, District Judge.

Matthew Sarver, a high school senior, slipped and fell on his way home from school on a sidewalk outside M.A.B. Paints, which is owned by The Sherwin-Williams Co. He sustained injuries and filed this action. Defendant filed a motion for summary judgment, which I will deny.

I. Background

On January 29, 2009, at about 3:15 p.m., Matthew Sarver (Plaintiff) slipped and fell while walking on the sidewalk immediately adjacent to M.A.B. Paints' parking lot. Plaintiff contends that ice and snow covered the sidewalk.

On the day before the fall, John Helman plowed M.A.B. Paints' parking lot and surrounding sidewalks. Mr. Helman, who was hired by The Sherwin-Williams Co. (Defendant), testified that he "cleared the walkways, but in that snow event, it rained heavily at the end of the snow storm." Helman Dep. at 15. He stated that after he cleared the parking lot and the walkways, he "salt[ed] the walkways and parking area." Helman Dep. at 17. He also stated that he salts using a "spreader" and that he salts high traffic areas and areas that may have been missed by hand. This process takes at minimum five fifty-pound bags of salt, which totals 250 pounds. He testified at his deposition that he uses this technique on "every job" and applies salt even if ice is not present. Helman Dep. at 22-25.

Plaintiff described the weather conditions on the afternoon of the incident "as clear, air was cold, but cloudy out, and there was ice and snow pretty much everywhere." Sarver Dep. at 39.[1] Regarding the sidewalks, Plaintiff testified that "outside of the school, the sidewalks were clear... on the side where the school was. On the opposite side, there was ice all over the place. And... down the road, it was clear. After that, there were patches of ice and snow all over the place." Saver Dep. at 45.

Plaintiff alleges that the ice on the sidewalk where he fell was thick, lumpy, and contained hills and ridges, and that when he stepped on the ice, he lost his balance and footing and fell to the sidewalk. He described the ice stating, "to say there were bumps is a little inaccurate. There was more dips along the ground, along the ice, and the bumps were basically the highest points for that ice, but sort of as if somebody had just been sliding their foot across the ground... causing... some of the ice to melt.... But that's pretty much how the bumps were, just somewhat spread out, but mostly just elongated." Sarver Dep. at 59. Plaintiff also stated that the bumps were about an inch, and he did not notice any salt on the sidewalk but his "awareness wasn't really the best at the time." Sarver Dep. at 60.

After the fall, Mr. Thomas J. Duddy, M.A.B. Paints' manager, came out to assist Plaintiff. Mr. Duddy testified in his deposition that the employees "would throw down salt here and there to make it passable." Duddy Dep. at 25. He stated that he knew Daniel Diaz "had put salt down in the morning" and that he was "pretty certain" he saw salt in the area of the accident. Duddy Dep. at 25. Although Mr. Duddy asked, Plaintiff refused an ambulance and wanted to be taken home. Mr. Duddy then placed Plaintiff in the back of his vehicle and drove him home where Plaintiff's mother, Rose Deifer, was also living at the time.

Ms. Deifer testified that Mr. Duddy carried Plaintiff into the house and told her "I apologize, Rose. I was on vacation, and I noticed that the stuff was not salted." Deifer Dep. at 44. Mr. Duddy testified at his deposition that he was not on vacation prior to the incident and had been working in the store. He does not remember the specific conversation he had with Ms. Deifer, but he recalls that he explained what happened when he dropped Plaintiff off at home.

Plaintiff alleges that Defendant negligently maintained the sidewalk in an unsafe condition for an unreasonable length of time, failed to remove or treat the ice with de-icing agent, failed to post any warnings or notices, and failed to make regular and reasonable inspections of the sidewalk.[2] As a result of the fall, Plaintiff sustained significant injuries.

II. Standard of Review

Summary judgment is appropriate when "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" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For an issue to be "genuine, " a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

A party moving for summary judgment always bears the initial burden of 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. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing relevant portions of the record, including depositions, documents, affidavits, or declarations, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or showing that an adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c). Summary judgment is therefore appropriate when the non-moving party fails to rebut the moving party's argument that there is no genuine issue of fact by pointing to evidence that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. , 477 U.S. at 322; Harter v. GAF Corp. , 967 F.2d 846, 852 (3d Cir.1992).

Under Rule 56, the Court must draw "all justifiable inferences" in favor of the non-moving party. Anderson , 477 U.S. at 255. The Court must decide "not whether... the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id. at 252. The nonmoving party cannot avert summary judgment with speculation or conclusory allegations, such as those found in the pleadings, but rather, must present clear evidence from which a jury can reasonably find in its favor. Ridgewood Bd. of Educ. v. N.E. for M.E. , 172 F.3d 238, 252 (3d Cir.1999). Finally, in reviewing a motion for summary judgment, the Court does not make credibility ...

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