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Slappy-Sutton v. Speedway LLC

United States District Court, E.D. Pennsylvania

June 22, 2018

ROD SLAPPY-SUTTON, and JEAN SUTTON, h/w, Plaintiff,
v.
SPEEDWAY LLC, Defendant.

          MEMORANDUM

          DuBois, J.

         I. INTRODUCTION

         This action arises out of a slip and fall that occurred as plaintiff Rod Slappy-Sutton (“plaintiff”)[1] was exiting a Speedway convenience store on January 19, 2016, in Glenside, Pennsylvania. Plaintiff alleges in the Complaint that he tripped and fell on an unmarked curb in front of the entrance of the Speedway, causing him to fall and rupture his left and right quadriceps. Presently before the Court are Defendant's, Speedway LLC, Motion for Summary Judgment and Defendant's, Speedway LLC, Motion to Preclude the Testimony of Keith A. Bergman, P.E. For the reasons that follow, Defendant's Motion for Summary Judgment is granted and the Motion to Preclude is denied as moot.

         II. BACKGROUND

         On January 19, 2016, plaintiff, his wife, and their 15-year-old son stopped to get gas for their vehicle at the Speedway convenience store in Glenside at approximately 6:30 p.m. Def.'s SOF ¶ 4; Pls.' SOF ¶ 4. After re-fueling his vehicle, plaintiff and his son walked towards the convenience store to purchase hot dogs and a pack of gum. Def.'s SOF ¶ 10; Pls.' SOF ¶ 10. As he exited the store, plaintiff misjudged the step down from the curb to the parking lot, causing him to fall. Def.'s SOF, Ex. 2, 136:11-13, 141: 1.

         Speedway purchased the convenience store from Hess Corporation on October 1, 2014. Def.'s SOF ¶ 5 n.3. Plaintiff had visited the store on one or two prior occasions before the incident on January 19, 2016.[2] Def.'s SOF ¶ 5; Pls.' SOF ¶ 5. In October 2015, Speedway upgraded the tank monitoring system for the underground fuel storage tanks. Def.'s SOF ¶ 27; Pls.' SOF ¶ 27. In order to run electronic telecommunication lines from the underground storage tanks to the store, a one foot wide trench was excavated from the tanks to the store, a portion of which was in front of the curb at the entrance to the store. Def.'s SOF ¶ 28; Pls.' SOF ¶ 28. Prior to that upgrade, the pavement in front of the curb was paved with asphalt. Id. Following the upgrade, the store paved over the one foot wide strip with concrete. Id. That upgrade left the curb and the one foot strip extending beyond the curb paved with concrete. Plaintiff claims that Speedway knew or should have known that the failure to cover the one foot strip of cement with black macadam or to paint the edge of the curb white or yellow to distinguish the curb from the cement strip below created a hazardous condition. Pls.' SOF ¶ 41.

         Plaintiffs filed this lawsuit in the Court of Common Pleas of Montgomery County on August 1, 2016. Defendant removed the action to this Court on August 31, 2016. The Complaint contains two counts - negligence (Count I) and loss of consortium (Count II).

         III. LEGAL STANDARD

         A. Motion for Summary Judgment

         The Court will grant a motion for summary judgment 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 when it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “[T]he judge's function is not himself to weight the evidence and determine the truth of the matter but to determine whether . . . there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249. The existence of a “mere scintilla” of evidence in support of the nonmoving party is insufficient. Id. at 252. In considering a motion for summary judgment, “the [C]ourt is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor.” Wishkin v. Potter, 467 F.3d 180, 184 (3d Cir. 2007).

         B. Negligence and Premises Liability

          “The elements necessary to plead an action in negligence are: the existence of a duty or obligation recognized by law; a failure on the part of the defendant to conform to that duty, or a breach thereof; a causal connection between the defendant's breach and the resulting injury; and actual loss or damage suffered by the complainant.” Orner v. Mallick, 527 A.2d 521, 523 (Pa. 1987).

         Under Pennsylvania law, possessors of a premises “owe a duty to protect invitees from foreseeable harm;” that is, possessors owe a duty when the possessor “knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee.” Craig v. Franklin Mills Assocs., L.P., 555 F.Supp.2d 547, 549 (E.D. Pa. 2008) (quotation marks and citations omitted)). To show that the possessor of the premise knew or, through reasonable care, should have known of the harmful condition, the invitee must present evidence that the possessor “had a hand in creating the harmful condition, ” had actual notice, or had constructive notice of the harmful condition. Estate of Swift v. Ne. Hosp. of Phila., 690 A.2d 719, 723 (Pa. Super. Ct. 1997) (citation omitted).

         IV. ...


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