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Biggs v. Sam's East, Inc.

United States District Court, W.D. Pennsylvania

October 24, 2019

D. LISA BIGGS, Plaintiff,
v.
SAM'S EAST, INC., Defendant.

          MEMORANDUM OPINION ECF NO. 25

          LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE

         Presently before the Court is the Motion for Summary Judgment filed by Defendant Sam's East, Inc. (“Defendant”). For the reasons that follow, the motion will be granted.

         FACTS

         The following facts are taken from the parties' Concise Statements of Material Fact and Responses thereto at ECF Nos. 27, 31 & 35, and are undisputed unless otherwise indicated.

         Plaintiff D. Lisa Biggs (“Plaintiff”) files this civil action for injuries sustained on November 25, 2016 when she slipped and fell in the café area of the Sam's Club located in Monroeville, Pennsylvania. (ECF Nos. 27 & 31 ¶¶ 1 & 3.) Plaintiff and her sister sat down at one of the tables in the café area. (ECF Nos. 27 & 31 ¶ 4.) Plaintiff did not have any trouble walking from the entrance of the store to the table in the café, and did not notice anything about the flooring area around her as she made her way to the table. (ECF Nos. 27 & 31 ¶¶ 5 & 6.) Likewise, she did not have any trouble sitting down at the table in the café area. (ECF Nos. 27 & 31 ¶ 7.)

         While sitting in the café area, Plaintiff saw an elderly lady at an adjacent table fall. (ECF Nos. 27 & 31 ¶ 8.) Plaintiff did not know the cause of the elderly lady's fall, and did not remember seeing anything on the floor around her seating area, and did not see anything on the floor where the lady fell. (ECF Nos. 27 & 31 ¶¶ 9 & 10.) Upon seeing the elderly lady fall, Plaintiff got up from her seat, and as she was walking toward the elderly lady, Plaintiff fell. (ECF Nos. 27 & 31 ¶ 11.) She testified that she did not see the floor in front of her prior to her fall. (ECF Nos. 27 & 31 ¶ 12.) Plaintiff indicated that the floor was slippery and that after she was helped up off the floor, she noticed that her pant leg felt damp. She did not identify any foreign substance on the floor. (ECF Nos. 27 & 31 ¶¶ 13 & 14.)

         A Customer Incident Report was completed by Plaintiff. It identified the floor as being “very slippery” but did not indicate that there was anything on the floor itself. (ECF Nos. 27 & 31 ¶ 16.) This report was also signed by Deborah Verbene, a member of Sam's Club Management, who was alerted to Plaintiff's fall by way of a “code white” over the “walkie talkie.” (ECF Nos. 27 & 31 ¶¶ 17 & 18.) Verbene “keyed” a claim report into Sam's Claims Management System after the incident; the report contained information that she personally observed, and information that came from Plaintiff. (ECF Nos. 27 & 31 ¶ 21.)

         The floor where Plaintiff fell was subjected to slip resistance testing by Andrew J. Rentschler, Ph.D. of ARCCA Incorporated on August 31, 2018. Dr. Rentschler opined, within a reasonable degree of biomechanical and scientific certainty, that the floor of the Sam's Club met the scientific criteria for a slip resistant floor and that a slip and fall incident would not be expected or likely under normal conditions (i.e. without the presence of a foreign substance). (ECF Nos. 27 & 31 ¶¶ 22 & 23.)

         LEGAL STANDARD

         Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, the pleadings, documents, electronically stored information, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show “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) & (c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact; that is, the movant must show that the evidence of record is insufficient to carry the non-movant's burden of proof. Id. Once that burden has been met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis added by Matsushita Court). An issue is genuine only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986). In Anderson, the United States Supreme Court noted the following:

[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. . . . [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

Id. at 249-50 (internal citations omitted).

         ANALYSIS

         In support of its Motion for Summary Judgment, Defendant argues the following: 1) Plaintiff has failed to establish the presence of a dangerous condition; and 2) Plaintiff has failed to establish that Defendant had notice of the alleged dangerous condition. In response, Plaintiff argues that there is an issue of material fact as to whether a dangerous condition existed on Defendant's premises that caused Plaintiff to fall. Plaintiff further responds that there is an issue of ...


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