United States District Court, E.D. Pennsylvania
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.
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
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
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.
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.
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.
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).
Premises Liability Under Pennsylvania Law
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.
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 ...