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Falcone v. Speedway LLC

United States District Court, E.D. Pennsylvania

January 19, 2017

PAUL FALCONE, Plaintiff,
SPEEDWAY LLC, Defendant.


          STENGEL, J.


         This is a negligence action brought under Pennsylvania law. Defendant, Speedway LLC filed a motion for summary judgment. Because there are genuine disputes of material fact, I will deny the motion.


         At about 9:00 p.m. on January 23, 2013, the plaintiff, Paul Falcone, pulled into the parking lot of defendant Speedway LLC's gas station in Orefield, Pennsylvania. Mr. Falcone was working at the time, driving a box truck that belonged to his employer Yocum Towing and Recovery, Inc. There to purchase diesel gasoline, Mr. Falcone parked the truck at a diesel fuel pump. As he stepped out of the truck, Mr. Falcone's foot slipped on a puddle of gasoline and he fell to the ground, hitting the pavement. He was knocked unconscious. A bystander eventually helped him to his feet. As a result of this fall, Mr. Falcone fractured his elbow and his tooth. He had to undergo a procedure to extract the damaged tooth and part of a surrounding facial bone. He has undergone several back surgeries. Mr. Falcone also alleges that he now suffers from severe back pain, whiplash, headaches, loss of vision, a sleep disorder, weakness, problems with balance, and numbness and tingling in his extremities.

         Defendant does not dispute that Mr. Falcone was at its store on the night in question. Nor does it dispute that Mr. Falcone slipped and fell on diesel fuel in its parking lot. (Doc. No. 44 ¶ 19). Instead, defendant argues that summary judgment should be granted because it had no actual or constructive notice. Based on the record before me, this is clearly a genuine dispute of material fact for a jury to resolve.


         Summary judgment is proper “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” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (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 seeking summary judgment initially bears responsibility for 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 (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, 477 U.S. at 322.

         Under Rule 56 of the Federal Rules of Civil Procedure, 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.


         As this is an action based on diversity of citizenship jurisdiction, I must apply Pennsylvania law. Hunt v. U.S. Tobacco Co., 538 F.3d 217, 220 (3d Cir. 2008).

         A. Premises Liability Under Pennsylvania Law

         Under Pennsylvania law, the duty a landowner owes to a person on its land depends upon whether the person is a business invitee, licensee, or trespasser. Trude v. Martin, 660 A.2d 626, 630 (Pa. Super. Ct. 1995). A business invitee is a “person who is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings with the possessor of the land.” Charlie v. Erie Ins. Exch., 100 A.3d 244, 253 (Pa. Super. Ct. 2014) (quoting Restatement (Second) of Torts § 332 (2016)). The parties agree that Mr. Falcone was at defendant's gas station as a business invitee and thus the following principles of law apply.

         “The duty owed to a business invitee is the highest duty owed to any entrant upon land.” Truax v. Roulhac, 126 A.3d 991, 997 (Pa. Super. Ct. 2015). Under this duty of care, a landowner cannot escape liability simply by protecting business invitees from “known dangers.” Id. It must also protect business invitees from dangers that might be discoverable with ...

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