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Fritz v. Target

United States District Court, M.D. Pennsylvania

March 24, 2017

HOLLY FRITZ Plaintiff,
v.
LOWER NAZARETH TARGET, d/b/a TARGET and/or TARGET CORPORATION, d/b/a TARGET and/or JORDAN BARSKI Defendants.

          MEMORANDUM OPINION

          Robert D. Mariani United States District Judge

         I. Introduction

         Presently before the Court is a Report and Recommendation ("R&R") (Doc. 33) by Magistrate Judge Carlson, in which the Magistrate Judge recommends granting the "Motion for Summary Judgment of Defendants, Lower Nazareth Target, d/b/a Target and/or Target Corporation, d/b/a Target and/or Jordan Barski" (Doc. 26) in the above-captioned action. Plaintiff Holly Fritz timely filed Objections pursuant to M.D. Pa. Local Rule 72.3. (Doc. 34). For the reasons that follow, upon de novo review of the R&R, the Court will adopt the pending R&R.

         II. Analysis

         A district court may "designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition" of certain matters pending before the court. 28 U.S.C. § 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge's Report & Recommendation, the District Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. at § 636(b)(1); see also Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011); Local Rule of the Middle District of Pennsylvania 72.3.

         In the present case, the Court referred Defendants' Motion for Summary Judgment to Magistrate Judge Carlson on January 20, 2017. The Magistrate Judge thereafter issued an R&R (Doc. 33) recommending that the motion be granted on the basis that there is insufficient record evidence upon which a trier of fact could conclude that defendants had constructive notice of a dangerous condition which caused Plaintiffs fall.

         Plaintiff objects to the Magistrate Judge's recommendation, arguing that the plaintiffs deposition testimony, when looked at in conjunction with the deposition of Jerry Betters (a former employee of Target) and Samantha Borden (the Corporate Designee of Defendants), demonstrates that a genuine issue of material fact exists. (Doc. 34-1, at 11-13).[1] Specifically, Plaintiff argues that based on the record evidence, "a reasonable] jury could legitimately conclude that Defendant knew or had reason to know, from past experience, that there was a likelihood of conduct on the part of third persons in general, namely other customers, which was likely to endanger the safety of their customers...." (Id. at 11}.

         Plaintiff does not dispute the Magistrate Judge's finding that "[t]he parties agree that this case turns on the issue of constructive notice" (Doc. 33, at 6 n.1), and this Court will therefore only evaluate the Defendants' motion premised on a theory of constructive notice.[2]

         In support of her Objections, Plaintiff relies only on the Eastern District of Pennsylvania's decision in Kania v. Sbarro, 1998 WL 800320 (E.D. Pa. 1998). (Doc. 34-1, at 13-15). In Kania, the plaintiff slipped on a piece of lettuce while walking near a food buffet. The Court denied Defendant's motion for summary judgment, finding that:

one could reasonably infer that defendant knew of the likelihood food would be dropped on its floor from evidence that its manager was required to inspect the floor for spills every five to ten minutes. One could reasonably infer that the floor was not so inspected from Mrs. Kania's testimony that she saw no Sbarro employees in the buffet area for five to ten minutes before the accident and Mr. Caballero's admission that the restaurant was shorthanded on the day of the accident. See Fed.R.Evid. 801(d)(2)(D). One could also reasonably infer from Mrs. Kania's testimony that the lettuce was slightly brown in color that it had been on the floor for a sufficient period of time that defendant reasonably should have discovered it. See David v. Pueblo Supermarket of St. Thomas, 740 F.2d 230, 236 (3d Cir.1984).
Also, if the opinion of plaintiffs' expert is credited, one could reasonably find that defendant itself created a dangerous condition by utilizing a slippery surface without matting for a floor onto which it was reasonably foreseeable food particles and other slippery substances would fall.

Kania, 1998 WL 800320 at *2.

         Despite Plaintiffs attempt to analogize Kania to the instant case, this comparison is inapposite. In Kania, the Court's decision was based, in large part, on three pieces of evidence for which there is no parallel here; (1) Plaintiff had observed the area where she slipped "for five to ten minutes before the accident"; (2) the fact that the lettuce was slightly brown could lead to a reasonable inference that it had been on the floor for a sufficient period of time;[3] and (3) Plaintiffs expert's opinion that the defendant had created a dangerous condition by not having mats on the floor.

         In the instant case, Plaintiff does not assert that she had observed the aisle where she fell for any length of time (see generally, Dep. of Fritz), merely that she was walking down an unidentified aisle when her "foot hit whatever it was on the floor" (id. at 30). In fact, Plaintiff could not even state how long she had been in the store prior to her fall. (See id. at 27). Nor has Plaintiff produced any other direct evidence, such as an eyewitness affidavit or deposition stating that he or she had observed the liquid at any time prior to Plaintiffs fall or had been present in that aisle at any time prior to the fall, to suggest how long the liquid was on the floor. The only testimony with respect to the state of the aisle prior to Plaintiffs fall came from Betters, who responded in the negative when asked whether anyone at Target had seen the liquid on the floor before the fall. (See Dep. of Betters, at 19). Unlike in Kania, where both the Plaintiffs and ...


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