United States District Court, E.D. Pennsylvania
action arises out of a slip and fall that occurred as
plaintiff Rod Slappy-Sutton
(“plaintiff”) 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.
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.
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. 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.
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
Motion for Summary Judgment
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).
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).
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).