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HomeMy WebLinkAbout2004-1377 Civil ENOCH BLACK, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA : : NO. 04 - 1377 : : : CIVIL ACTION – LAW FLYING J INC., and CFJ PROPERTIES : d/b/a FLYING J TRAVEL PLAZA, : JURY TRIAL DEMANDED IN RE: SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT th AND NOW , this 14 day of March, 2008, after consideration of the briefs filed by the parties and after oral argument, IT IS HEREBY ORDERED AND DIRECTED that Defendants’ motion for summary GRANTED judgment is . By the Court, M. L. Ebert, Jr. J. Stephen Held, Esquire Attorney for Plaintiff John F. Yaninek, Esquire Attorney for Defendants ENOCH BLACK, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, : PENNSYLVANIA : : NO. 04 - 1377 : : : CIVIL ACTION – LAW FLYING J INC., and CFJ PROPERTIES : d/b/a FLYING J TRAVEL PLAZA, : JURY TRIAL DEMANDED IN RE: SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. OPINION and ORDER OF COURT Ebert, J., March 14, 2008:-- Plaintiff Enoch Black brings this civil action claiming that Defendants, Flying J, Incorporate and CFJ Properties, were negligent in the care of their business premises. Following 1 the completion of discovery, Defendants filed a motion for summary judgment claiming that Plaintiff failed to produce evidence of essential facts. Having found thatPlaintiff has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury, we now grant Defendants’ motion for summary judgment. STATEMENT OF FACTS: 2 On April 9, 2002, Plaintiff Enoch Black, born December 11, 1935, was allegedly at the Flying J Travel Plaza on the Harrisburg Pike in Carlisle, Pennsylvania. Black is a truck driver 3 and frequently stops at the Plaza on his trips to refuel and rest. On the above mentioned date, 1 Plaintiff’s counsel informed defense counsel that his discovery was complete in a phone conversation on July 17, 2007. See Motion of Defendants Flying J Inc. and CFJ Properties d/b/a Flying J Travel Plaza for Summary Judgment ¶ 9. 2 Compl. ¶ 7; Pl. Dep., attached as Def. Ex. 1 accompanying Motion of Defendants Flying J Inc. and CFJ Properties d/b/a Flying J Travel Plaza for Summary Judgment., taken Nov. 28, 2006, at 6. 3 Pl. Dep. at 29. 2 Black was at the Plaza and stated that he slipped while he was walking atop the refueling station. Black claims that he slipped and fell due to an accumulation of diesel and/or oil mixed with 4 water which was allowed by Defendants to remain on the blacktop. Prior to Black’s arrival at the Plaza, there had been intermittent rain showers and the 56 premises were wet. Although it was still daylight, Black claims that he noticed nothing on the 7 ground other than water. He does however claim to have smelled diesel fuel when he fell. Black asserts that the ground was very slick – slicker than it would be due to the mere presence 8 of water. He is unaware as to whether any fuel or substance was on his clothes due to his fall. 9 He wore standard work shoes at the time. Betty Koopman, relief manager and cashier at the Plaza on the date in question, states in her deposition that she neither saw nor smelled diesel 10 when she went out to help Plaintiff after he fell. There has never been a known spill in the area where the fall occurred (at the refueling 11 station near where the gas trucks refuel the underground tanks) and the alleged fall area is 12 inspected daily. Defendants maintain that each refueling island is sprayed daily with a chemical compound intended to dissolve any diesel fuel on the ground. Additionally, a detailed power cleaning of each refueling island is performed every Monday, Wednesday, and Friday. A detailed power cleaning of the gasoline islands is performed every Tuesday and Thursday. Cards 4 Pl. Dep. at 38. 5 Pl. Dep. at 34-35. 6 Pl. Dep. at 42. 7 Pl. Dep. at 39. 8 Pl. Dep. at 38. 9 Pl. Dep. at 39. 10 Koopman Dep. attached as Def. Ex. 3 Motion of Defendants Flying J Inc. and CFJ Properties d/b/a Flying J Travel Plaza for Summary Judgment, taken March 15, 2006, at 7. 11 Compl. ¶ 7; Pl. Dep. 42. 12 Baba Dep. attached as Def. Ex. 4 accompanying Motion of Defendants Flying J Inc. and CFJ Properties d/b/a Flying J Travel Plaza for Summary Judgment,, taken March 15, 2006, at 13-14. 3 are maintained at each refueling island which reflects that the pump was inspected. Such 13 inspection occurs every one-half hour.” Beyond regular, routine inspections, Defendants have posted warning signs near fuel islands which advise invitees to be cautious of slick spots on the fuel islands. The signs state, “WARNING, Look out for slick spots on fuel islands. If you get out of your truck, YOU accept 14 risk of injury.” No signs specifically reference the refueling station. 15 Black has fallen a number of times before and has had upper back problems for years, yet contends that, due to his fall on the Defendants’ premises, he suffered multiple injuries which include, but are not limited to: lumbar and cervical strain, a concussion, and peripheral vestibular 16 dysfunction. He now brings this action to the court, claiming that Defendant Flying J was negligent in its care of the refueling area. DISCUSSION I. Summary Judgment It is a well known rule of civil procedure that, after the proper pleadings have occurred, a party may move for summary judgment in two instances: (1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. C.S.A. 1035.2. 13 See Defendant’s response to Plaintiff’s Interrogatory No. 25. After reasonable investigation, Defendant was unable to locate the cards reflecting the dates and times of inspection for the date in question. 14 Pl. Dep. Ex. 1. 15 Pl. Dep. at 50-51. 16 Compl. ¶ 23. 4 The inquiry in deciding a motion for summary judgment “is whether the admissible evidence in the record, in whatever form, from whatever source, considered in the light most favorable to the respondent to the motion, fails to establish a prima facie case or defense.” In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 258 (3d. Cir.1983). Summary judgment is meant to eliminate the waste of time and resources of both litigants and the courts in . cases where a trial would simply be a useless formalityLiles v. Balmer, 567 A.2d 691 (Pa. Super 1989). II.Applicable Law: A “business invitee” is a person who is invited to enter or remain on the land of another for a purpose directly or indirectly connected with the possessor’s business dealings. Restatement (Second) of Torts § 332.A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, but only if he: (a) knows or by the exercise of reasonable care would have discovered the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (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 danger. Restatement (Second) of Torts § 343. The Restatements further provide: “A possessor of land who holds it open to the entry of the public for his business purposes is subject to liability to members of the public entering for such purposes for bodily harm caused to them by his failure to exercise a reasonably careful supervision of the appliances or methods of an independent contractor or concessionaire whom he has employed or permitted to carry on upon the land an activity which is directly or indirectly connected with his business use thereof.” Restatements of Torts § 344. (emphasis added). Pennsylvania law accepts and supports the Restatements view, as can be seen in Zito v. Merit Outlet Stores, 647 A.2d 573 (Pa. Super. 1994). In Zito, the court stated that in order to 5 recover damages in a “slip and fall” case, an invitee must present evidence which proves that the store owner deviated in some way from his duty of reasonable care under the existing circumstances. This evidence must show that the proprietor knew, or in the exercise of reasonable care should have known, of the existence of the harmful condition. Additionally, the invitee must prove either that the store owner helped to create the harmful condition, or that it had actual or constructive notice of the condition. Id. at 575. III. Application of Law: A.Defendants Were Reasonable in Their Care of the Premises Our first inquiry requires us to examine whether Defendants deviated in some way from their duty of reasonable care. The nature of the location in this case is significant, as oil and diesel spills are likely at a refueling station. Danger of falling due to potential spills alone is therefore insufficient to show a breach of duty. Instead, the Plaintiff must show that Defendants were unreasonable in their care of the premises. Plaintiff has however failed to convince this Court that Defendants were at all unreasonable in their efforts. On the contrary, we find that Defendants’ care of the business premises was reasonable. Both the fact that a fall has never occurred in this area, and the fact that all refueling areas, not only the fall site, are subject to frequent inspections are of particular importance to our inquiry. Testimony and circumstantial evidence suggest that Defendants were unaware of a potential problem, despite having taken all necessary steps to maintain due diligence of the area. The actual presence of diesel fuel on the ground is inherently suspect, as the sole evidence provided by Plaintiff to prove the presence of diesel or oil on the ground is his own testimony. The daily and hourly diligent inspections of the refueling area would have revealed and/or eliminated any such diesel spills, and we thus find no merit to Plaintiff’s contention that Defendants knew of a spill. 6 We also find the fact that the warning signs present at the station only referred to the fuel islands insignificant. The refueling area was still within the premise of the filling station. A reasonable person could infer that fuel or oil may be located in areas other than just the fuel islands. The presence of a foreign substance is further refuted by the statement of Betty Koopman, relief manager and cashier at the Plaza on the date in question. Ms. Koopman stated that she neither saw nor smelled diesel when she went out to help Plaintiff after he fell. Indeed, Plaintiff himself admits he that could not see any substance on the ground other than water. There is therefore no merit to an argument contending that Defendant “should have known” of a potential problem if it had exercised reasonable care. B.Defendants Were Not Actually or Constructively Notified of Any Dangerous Conditions The second part of our inquiry requires us to examine whether Defendants either helped to create the supposed harmful condition, or that they had actual or constructive notice of the condition. We find that Plaintiff has failed to produce evidence to show either Defendants’ creation or notice of the alleged condition. In Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 1997), appellant, a patient and business invitee of the defendant hospital slipped and fell on a puddle of water in the hospital bathroom and later passed away due to complications associated with the injuries sustained from the fall. Appellant cited to the hospital janitorial records which indicated that the person in charge of maintaining the bathroom floor area where the decedent fell had left the hospital four hours prior to the accident. Appellant contended that the hospital was negligent in not replacing the missing janitor but no evidence was produced to show that the area had not been monitored by other hospital staff. Our Superior Court found that appellant failed to produce evidence as to how water arrived on floor, or as to how long condition existed and was 7 accordingly unable to recover against the hospital in premises liability action in absence of evidence showing that the defendant hospital had notice of dangerous condition. Id. at 721-22. In this situation, as in Swift, Plaintiff has presented no evidence by which a jury could draw a reasonable inference as to how the alleged diesel fuel came to be on the refueling area. No evidence has been presented as to the last refilling and we do not know how long the alleged diesel would have been there before Black fell. What we know, however, is that the refueling station was wet due to a recent storm, that the station is monitored every thirty minutes, and that as of the last inspection, no diesel spill was detected. Plaintiff is unable to present sufficient evidence to reasonably infer that Defendants had any actual or constructive notice of the condition which he claims caused his injury. Without such proof, Plaintiff cannot establish a breach of the legal duty owed to Mr. Black which is a requisite to a finding of negligence. CONCLUSION Accordingly, after considering the reasonable preventive measures taken by the Defendants to maintain a safe environment, and taking into account the fact that Plaintiff himself was unable to identify a problem beyond mere speculation, Plaintiff has failed to provide evidence that Defendants breached their duty to reasonably protect the invitees to their business premises. Additionally, the Plaintiff has failed to prove that Defendants helped to create the harmful condition, or that they had actual or constructive notice of the condition. Therefore, having found thatPlaintiff, after the completion of discovery, has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury, Defendants’ motion for summary judgment is granted and the following order shall be entered: 8 ORDER OF COURT AND NOW , this 14th day of March, 2008, after consideration of the briefs filed by the parties and after oral argument, IT IS HEREBY ORDERED AND DIRECTED that Defendants’ motion for summary GRANTED judgment is . By the Court, M. L. Ebert, Jr. J. Stephen Held, Esquire Attorney for Plaintiff John F. Yaninek, Esquire Attorney for Defendants 9