United States District Court, E.D. Pennsylvania
GENE E.K. PRATTER, District Judge.
Evelyn Harrell alleges that she suffered an injury after slipping and falling on a wet floor in a Pathmark store. Because she has not presented sufficient evidence that Pathmark had constructive notice of any wet condition of the floor, the Court grants Pathmark's Motion for Summary Judgment.
On the sunny afternoon of May 1, 2013, Ms. Harrell was shopping for groceries in a Philadelphia Pathmark store. As she walked into the deli section of the market, her legs slipped out from under her and she fell to the floor face-first. When Ms. Harrell got up from the floor, she noticed something wet on her pants. Sure enough, on the floor where she had fallen was a collection of what appeared to be water. This liquid was not collected in a large pool-she noted that the amount of liquid "wasn't a lot. It wasn't like a puddle"-but rather "was maybe like, say if somebody wasted some water in a cup or something." Mot. in Opp. to Summ. J. Ex. A. 32:12-15 (hereinafter "Harrell Depo.").
Ms. Harrell claims that Pathmark's negligence resulted in her slipping on a dangerously slick surface. Pathmark moved for summary judgment arguing that Ms. Harrell has failed to prove that Pathmark had actual or constructive notice of the wet condition of the floor.
II. Standard of Review
Summary judgment is appropriate where "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 fact is "material" if it could affect the outcome of the suit, given the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" if the evidence presented "is such that a reasonable jury could return a verdict for the nonmoving party." Id. When the party seeking summary judgment does not bear the burden of persuasion at trial, the moving party may meet its burden at summary judgment by showing that the nonmoving party lacks sufficient evidence to create a genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In evaluating a summary judgment motion, a court "must view the facts in the light most favorable to the non-moving party, " and make every reasonable inference in that party's favor. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). The court must not weigh the evidence or make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). Nevertheless, the party opposing summary judgment must support each essential element of his or her opposition with concrete evidence in the record. Celotex, 477 U.S. at 322-23. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
Pennsylvania law requires that a plaintiff alleging negligence prove four essential elements: "(1) a duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2) a failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting in harm to the interests of another." Nw. Mut. Life Ins. Co. v. Babayan, 430 F.3d 121, 139 (3d Cir. 2005). Because Ms. Harrell was an "invitee" of Pathmark-that is, she was invited onto Pathmark's premises "for a purpose directly or indirectly connected with business dealings with the possessor of the land, " Restatement (Second) of Torts § 343-Pathmark owed Ms. Harrell the duty to protect her from foreseeable harm. See Slater v. Genuardi's Family Mkts., No. 13-794, 2014 WL 4763336, at *2 (E.D. Pa. Sep. 24, 2014). However, Pathmark's duty only would have arisen if Pathmark knew of, or by the exercise of reasonable care would have discovered, a condition that Pathmark should have realized involved an unreasonable risk of harm to an invitee such as Ms. Harrell. See id. (citing Restatement (Second) of Torts § 343). Accordingly, Ms. Harrell must prove either that Pathmark played a role in creating the harmful condition or that Pathmark had either actual or constructive notice of the harmful condition. See id.
This case turns on whether Pathmark had constructive notice of the collection of liquid. Ms. Harrell has not provided any evidence that Pathmark played a role in creating the collection of liquid on which Ms. Harrell slipped or that Pathmark had actual or constructive notice of it. There is no evidence or argument here that Pathmark created the collection of liquid, nor is there evidence or argument that Pathmark had actual notice of it. Therefore, the Court will evaluate the parties' respective positions as to constructive notice.
Constructive notice is a legal fiction in which the court presumes notice "from the existence of facts and circumstances that a party had a duty to take notice of." Black's Law Dictionary 1227 (10th ed. 2014). Thus, "[w]hat constitutes constructive notice of a dangerous condition depends on the circumstances of each case." Slater, 2014 WL 4763336, at *3. Courts look to the nature of the dangerous condition, its location on the premise, its likely cause, the opportunity the defendant, as a reasonably prudent person, had to remedy it, and, crucially, the time elapsing between when the dangerous condition arose and when the accident occurred. Id. The amount of time that elapsed is crucial because "[i]f a dangerous condition only existed for a very short period of time before causing any injury, then the possessor of the land, even by the exercise of reasonable care, would not discover the hazard, and thus would owe no duty to protect invitees from such a hazard." Id. (quotation marks and citations omitted).
Ms. Harrell has not presented the Court with evidence from which a reasonable jury could infer that Pathmark had constructive notice of the wet condition of the floor. She has presented no evidence of when or how the liquid appeared on the floor. She testified in her deposition that the liquid was clear and was not collected in a large pool, saying "it wasn't a lot [of liquid]. It wasn't like a puddle." Harrell Depo. 32. Indeed, a photograph taken of the scene after the fall showed no visibly wet condition on the floor, Mot. for Summ. J. Ex. C (Doc. No. 11-3), and the assistant store manager did not detect any liquid on the floor when he wiped the area where Ms. Harrell fell, Mem. in Opp. to Summ. J. Ex. B. 12-13 (Doc. No. 12-1) (hereinafter "Lewis Depo.").
Ms. Harrell's arguments highlight the lack of evidence as to when and how the liquid got on the floor. Ms. Harrell notes that Pathmark " anticipate [ s ] that spills will occur in its stores, " and that "the aisle where Plaintiff slipped and fell was inspected continuously throughout the day by Pathmark supervisors and employees prior to the incident." Mem. in Opp. to Mot. for Summ. J. 8-9 (emphasis in original). But this evidence actually works against Ms. Harrell, who has not provided any evidence that the liquid was there for a sufficient amount of time so that an inspection would have discovered it. Cf. Slater, 2014 WL 4763336, at *4 ("There is simply no way for this Court or a jury to know whether the dangerous condition appeared five minutes before Slater's fall or an hour before her fall, yet went unnoticed by the employee conducting the sweep. Because the jury cannot guess or speculate as to the length of time that the hazardous condition existed, the Court must decide the issue as a matter of law."). The mere fact in this case that there was not a set schedule for routine inspections or documentation of them is not sufficient evidence that Pathmark had constructive notice of the condition. Cf. Felix v. GMS, Zallie Holdings, Inc., 501 F.Appx. 131, 135 (3d Cir. 2012) (finding an alleged lack of monitoring was insufficient evidence of constructive notice where a property owner did not have set times or a written log for inspections, but where the "maintenance people are told when they are cleaning and mopping to get around the store and check"). Accordingly, there is insufficient evidence that Pathmark had constructive notice of the wet condition upon which Ms. Harrell slipped.
Finally, although Ms. Harrell does not specifically invoke the issue, one could read the concluding paragraphs of her Memorandum opposing summary judgment as contending that the Court should draw an adverse spoliation inference against Pathmark. The Memorandum notes that Pathmark had working security cameras in the store, but the video footage from the time and date of the accident was not preserved and has now been recorded over. The Court, appreciative of this potential issue, sua sponte scheduled a hearing to prompt the parties to address the issue on whether the Court could or should ...