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Mangual v. Dia — Wesley Drive, Inc.

United States District Court, M.D. Pennsylvania

June 4, 2014

RICARDO MANGUAL, Plaintiff,
v.
DIA — WESLEY DRIVE, INC., CIRCLE C CORP. — D/B/A PAPA JOHN'S, and MALCO LANDSCAPE, INC., Defendants.

MEMORANDUM AND ORDER

SUSAN E. SCHWAB, Magistrate Judge.

In this personal injury action, arising under state law, each of the three defendants has filed a motion for summary judgment. For the reasons set forth herein, the unopposed motions filed by DIA - Wesley Drive, Inc. ("Wesley") and Malco Landscape, Inc. ("Malco") shall be granted, while the opposed motion filed by Circle C Corp. - d/b/a Papa John's ("Papa John's") shall be denied.

I. Background and Procedural History.

On January 10, 2013, the plaintiff, Ricardo Mangual ("Mangual") initiated this action by filing a civil complaint against Wesley, Papa John's, and Malco. Doc. 1. Generally, Mangual claims that the defendants are jointly and severally liable for negligently causing his injuries that resulted from a slip and fall at the rear of the premises owned by Wesley, but leased to Papa John's, a pizza-making franchise. Said premises were located at 1010 Wesley Drive #7, Mechanicsburg, Pennsylvania. More specifically, while making a commercial delivery to Papa John's, Mangual claims that he slipped on an accumulation of snow and ice, a hazardous condition. Mangual's theory of liability against Malco is the same and arises from Malco's agreement with Wesley to remove ice and snow from the premises.

After being served with the complaint, each defendant timely filed an answer. Docs. 6, 7, & 10. In addition, Wesley filed a cross-claim against Malco seeking indemnification in the event that it was found liable to Mangual, and Malco filed a similar cross-claim against both Wesley and Papa John's. Docs. 7 & 10. Thereafter, on March 26, 2013, the parties consented to my jurisdiction pursuant to 28 U.S.C. § 636(c)(1). Doc. 13 at 5.

In accordance with the case management plan, the discovery period closed on October 31, 2013. Doc. 20. Following the close of discovery, each defendant filed a summary judgment motion along with a brief in support, a statement of facts, and cited to pertinent exhibits. Docs. 28, 29, 30, 34, 35, 36, 39, 40, & 41. On December 23, 2013, Mangual filed a timely brief in support, a counterstatement of facts, and other documents. Docs. 42 & 43. In Mangual's brief, however, among other things, he states that he does not oppose the summary judgment motions filed by Wesley and Malco. Doc. 42 at 5-6. Instead, the substance of Mangual's brief is aimed solely at Papa John's dispositive motion, which is presently ripe for review.

In this procedural context, Wesley's and Malco's unopposed summary judgment motions will be granted. With respect to Papa John's motion, however, it will be addressed on the merits in this Memorandum.

II. Factual Statement.[1]

On January 15, 2011, Mangual, who worked as a tractor-trailer operator for a trucking company, was set to make a delivery to Papa John's, a pizza-making franchise located in Mechanicsburg, Pennsylvania. Doc. 30 at 15, 26. The store where the franchise was located was leased to Papa John's by Wesley. On the date of the scheduled delivery, Max Onglade ("Onglade"), Mangual's co-driver, rode with Mangual to Papa John's. Id. at 20.

When Mangual and Onglade arrived to Papa John's, around 6:00 p.m., they pulled into the front as usual. Id. at 28, 33, 34. While in the front, Mangual noticed that the parking lot and sidewalks appeared to have been recently plowed. Id. at 31-32. In particular, he noticed that there were spots on the ground where he could see the bare pavement and other spots covered with snow patches. Id. Papa John's store manager, however, asked Mangual and Onglade to pull their delivery truck around to the rear of the leased premises. Id. at 28.

Mangual complied with the manager's request and drove the truck to the rear of the premises. Id. at 36-37. Once parked, Mangual got out and walked around to the front of the truck where it was "very slippery" and "kind of icy" with a "glaze on the ground." Id. at 29, 37, 38-39, 40. He then proceeded down the side of the truck, noticing patches of snow and bare pavement along the way. Id. at 40. While walking next to his truck, Mangual did not fall. Once he moved away from the truck and reached the staircase leading to Papa John's rear door, though, Mangual slipped and fell "like [in] a cartoon." Id. In that area, there was some ice, and the photographs that Mangual has filed as exhibits tend to support his description of the ground conditions. See generally, Doc. 42 at 21-22.

Onglade did not witness the incident, and Mangual testified that he could not tell a difference between what he felt under his feet at the front of the truck compared to the area where he slipped - "It felt like an ice-skating rink." Doc. 30 at 37, 38. Further, Mangual testified that the snow and ice appeared to have naturally accumulated, and was of the same type and condition of the ground at the front of the premises. Id. at 41.

With respect to the weather conditions on the day in question, Mangual testified that when he reported to work at noon he recalled that it was snowing and he was dressed warmly. Id. at 26; see id at 92. Mangual also testified that it snowed at Papa John's after he fell. Id. at 32. Contrary to his own testimony, however, Mangual provided a certified past weather report from WeatherWorks (the "WeatherWorks Report"). According to the WeatherWorks Report, there was an accumulation of 3.3 to 4 inches of snow in the Mechanicsburg area on January 11, 2011. Doc. 42 at 15. The following day, Mechanicsburg experienced trace amounts of snow. Id. Thereafter, from January 13-15, 2011, Mechanicsburg reported zero snowfall or precipitation. Id. Moreover, the temperatures from January 12-14, 2011, were generally below freezing while the temperature on January 15, 2011, ranged from 38 to 20 degrees Fahrenheit. See id. The WeatherWorks Report also provides that at the time of the alleged incident, the temperature was above freezing. Id. at 16, 17. Further, on January 15, 2011, the average amount of snow or ice cover on the ground in Mechanicsburg ranged from 1.5-2.5 inches. Id.

With respect to the leased premises, Papa John's was responsible "for its pro rata share of the cost of any snow [and ice] removal from" the premises. See id. at 31, 39. Wesley, though, retained the right to contract, or otherwise pay, for the snow and ice removal, which is how Malco became involved. Id. at 39. Pursuant to its contract with Wesley, Malco agreed to plow snow at the premises when the snow fall accumulation exceeded two inches. Id. at 25. The contract further provided that Malco agreed to spread salt and cinders on required parts of public areas, "only when instructed by owner or otherwise set-up by [the] site manager." Id. On January 12, 2011, Malco performed under its agreement with Wesley by plowing the premises' parking lot, spreading 3.5 tons of pure salt, and spreading 5 bags of calcium on the sidewalks; however, Malco did no further maintenance at the premises in the days leading to Mangual's alleged slip and fall. Id. at 27.

III. Jurisdiction and Legal Standard.

First, given that there is no dispute about the parties' citizenship, as alleged in Mangual's complaint, coupled with the fact that the amount in controversy exceeds the threshold amount, I find that this Court maintains subject-matter jurisdiction pursuant to 28 U.S.C. § 1332. As well, the defendants have effectively ...


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