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Dupell v. Walmart Stores East, LP

United States District Court, E.D. Pennsylvania

August 28, 2019



          Savage, Judge

         In this premises liability suit, the plaintiff Tracie Dupell claims she slipped and fell on loose candy on the floor of the defendant Walmart Stores East, LP's store. Moving for summary judgment, Walmart argues that the undisputed evidence shows that there was nothing on the floor, and if there had been, it had neither actual nor constructive notice of it.

         After reviewing the record, we conclude that there is no evidence that there was any harmful condition that caused Ms. Dupell to fall. Therefore, we shall grant Walmart's motion for summary judgment.

         Background [1]

         On June 4, 2018, Ms. Dupell was in the self-checkout area of a Walmart store in Levittown, Pennsylvania, when she fell and injured her right leg.[2] Video footage shows her suddenly collapsing.[3] Walmart employees immediately came to her aid and called an ambulance.[4] Sixteen minutes later, paramedics arrived, assessed her, and transported her to the hospital.[5] Her husband arrived after the paramedics.[6]

         In her answers to interrogatories, Ms. Dupell claimed that she slipped on M&M candy.[7] Yet, in her deposition, she testified she does not know what caused her to fall.[8]She relies on her husband's telling her later that he saw “an M&M on the floor” when he arrived at Walmart, but also subsequently testified that she does not know how many M&Ms Mr. Dupell saw on the floor.[9] According to Ms. Dupell, he did not specify where on the floor he saw them.[10]

         Ms. Dupell did not see any M&Ms on the floor before or after falling.[11] She testified that her friend, whom she believes witnessed the fall, did not mention that there were any M&Ms on the floor.[12] Ms. Dupell further testified that she did not report the existence of M&Ms to any Walmart employees or the EMS workers.[13] There is no reference to M&Ms in the Walmart incident and witness reports, or the EMS report.[14] Each of the incident reports notes that Ms. Dupell stated that her leg or ankle suddenly “buckled, ” “rolled, ” or “gave out” underneath her.[15]

         Ms. Dupell had an injury to her right knee three months before the Walmart incident.[16] For this injury, she had an X-ray, MRI, drainage, and a cortisone injection to her knee.[17] She had not yet begun recommended therapy.[18] Ms. Dupell informed a Walmart worker that her “leg was hurt and that her leg's been hurting her for a while, so it caused her to fall and hit the ground.”[19]

         The video footage does not show any debris on the floor or any worker cleaning the area in the hour leading up to and the hour after the fall.[20] The customer service associate on duty testified that there were no M&M candies for sale or displayed in the area where Ms. Dupell fell.[21]

         Ms. Dupell brought suit against Walmart, alleging that because she was a business invitee, Walmart had a duty to maintain and keep its store in a safe condition for her.[22]She claims Walmart negligently “allowed and permitted dangerous and unsafe conditions to exist, specifically, lose [sic] candy on the ground which directly results in plaintiff's injuries.”[23]

         Walmart asserts that Ms. Dupell has offered no evidence to establish that Walmart was negligent.[24] It contends there is no evidence that M&Ms or any substance or object were present when she fell.[25]

         In opposing the motion, Ms. Dupell seeks to create an issue of fact by contending that her husband saw candy on the floor when he arrived later. Ms. Dupell argues that this shows that Walmart knew or should have known about the condition.[26] She contends that there are multiple genuine issues of material fact concerning whether there were M&Ms on the floor and whether Walmart knew or should have known about the M&Ms.[27]Yet, she can point to none.

         Standard of Review

          Summary judgment is appropriate “if the movant shows there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Judgment will be entered against a party who fails to sufficiently establish any element essential to that party's case and who bears the ultimate burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In examining the motion, we must draw all reasonable inferences in the nonmovant's favor. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003).

         The initial burden of demonstrating that there are no genuine issues of material fact falls on the moving party. Fed.R.Civ.P. 56(a). Once the moving party has met its burden, the nonmoving party must counter with “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The nonmovant must show more than the “mere existence of a scintilla of evidence” for elements on which it bears the burden of production. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Bare assertions, conclusory allegations or suspicions are not sufficient to defeat summary judgment. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Thus, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587 (citation omitted).


          Under Pennsylvania law, a possessor of land is subject to liability for physical harm caused to invitees by a condition on the land only if he:

(a) 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 invitees;
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and
(c) fails to exercise reasonable care to protect them against the danger.

Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983) (citing Restatement (Second) of Torts § 343); Kirschbaum v. WRGSB Assocs., 243 F.3d 145, 152 (3d Cir. 2001). Simply put, “[a]n invitee must prove either the proprietor of the land had a hand in creating the harmful condition, or he had actual or constructive notice of such condition.” Estate of Swift v. Ne. Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super. Ct. 1997) ...

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