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Mieloch v. Hess Corporation

United States District Court, E.D. Pennsylvania

February 27, 2014



R. BARCLAY SURRICK, District Judge.

Presently before the Court is Defendant Hess Corporation's Motion for Summary Judgment. (ECF No. 23.) For the following reasons, the Motion will be denied.


This negligence action arises out of a slip and fall that occurred on December 8, 2010, in Philadelphia, Pennsylvania. Plaintiff Mary Mieloch was born on October 5, 1929. On the date of this incident, she was 81 years old. Plaintiff alleges that she tripped and fell over an elevated portion of a concrete pad at one of Defendant Hess Corporation's gas stations. (Compl., Notice of Removal Ex. A, ECF No. 1.) The Hess station, which is owned and maintained by Defendant, is located at 6395 Oxford Avenue in Philadelphia. (Def.'s Mot ¶¶ 1, 4, ECF No. 23; Pl.'s Resp. ¶¶ 1, 4, ECF No. 25.)

The facts surrounding this incident are, for the most part, not in dispute. At approximately three o'clock in the afternoon, Plaintiff pulled into the Hess station and parked her car directly adjacent to a gasoline pump marked as "Pump One". (Mieloch Dep. 36, Def.'s Mot. Ex. 4.) Plaintiff exited her vehicle, opened the gas tank, and began to walk towards the pay kiosk to pre-pay for gasoline. (Mieloch Dep. 34-37.) Customers at this Hess station are required to pre-pay for fuel before pumping. ( Id. at 36-37.) While walking towards the kiosk, Plaintiff tripped on an uneven surface in an area where the asphalt meets a concrete pad on which the gas pumps are located. (Def.'s Mot. ¶ 8; Pl.'s Resp. ¶ 8.) The location where Plaintiff tripped was approximately ten feet away from where she exited her car. (Mieloch Dep. 37.) The change in elevation between the asphalt and the concrete pad is approximately one-and-a-half to three inches.[1] Plaintiff's foot became caught in a corner of the elevated concrete pad, causing Plaintiff to fall forward and hit the cement in front of her. (Mieloch Dep. 37-38, 65.)

At the time of her accident, Plaintiff was walking at a normal pace, was wearing flat shoes, and was not carrying anything in her hands. ( Id. at 38, 50.) Plaintiff was looking down at the ground at the path in front of her, but did not observe the change in elevation on the ground. ( Id. at 41-42.) She did not notice the condition until after she tripped and fell. ( Id. at 42.) Plaintiff is a frequent customer at this Hess gas station, and testified that she has gone there approximately once every eight days for the past ten or so years to purchase gas. ( Id. at 33.) As a result of the fall, Plaintiff sustained injuries to her jaw, teeth, face, hands, and knees. (Compl. ¶ 17; Mieloch Dep. 14-15.)[2]

On October 21, 2012, Plaintiff filed a Complaint in the Court of Common Pleas of Philadelphia County. Defendant removed the action to this Court on December 20, 2012. The Complaint asserts one count against Defendant for negligence. On December 16, 2013, Defendant filed a Motion for Summary Judgment. (Def.'s Mot.) Plaintiff filed a Response in opposition to Defendant's Motion on December 26, 2013. (Pl.'s Resp.)


A party is entitled to summary judgment "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); s ee also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Where the nonmoving party bears the burden of proof at trial, the moving party may identify an absence of a genuine issue of material fact by showing the court that there is no evidence in the record supporting the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 325 (1986); UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). If the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c)(1)(A) ("A party asserting that a fact... is genuinely disputed must support the assertion by... citing to particular parts of materials in the record...."); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (noting that the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"). The nonmoving party may not avert summary judgment by relying on speculation or by rehashing the allegations in the pleadings. Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). When deciding a motion for summary judgment, courts must view facts and inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. Moreover, courts must not resolve factual disputes or make credibility determinations. Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).


Defendant's Motion for Summary Judgment is premised on one argument. Defendant argues that Plaintiff's negligence claim must fail because the condition in the Hess parking lot that Plaintiff alleges caused her to trip and fall was de minimis or trivial, and, therefore, not actionable as a matter of law. Plaintiff responds that the change in elevation between the asphalt and concrete pad is not so obviously trivial and that her claim should be submitted to the jury.

The duty of care owed to a business visitor or invitee is set forth in the Restatement (Second) of Torts Sections 343 and 343A. Defendant does not dispute that Plaintiff was a business invitee at the Hess station at the time of the incident.[4] Section 343 states that:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable ...

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