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HomeMy WebLinkAbout2004-1377 Civil (2) ENOCH BLACK, : IN THE COURT OF COMMON PLEAS OF Plaintiff/Appellant : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : : FLYING J INC., and : CFJ PROPERTIES d/b/a FLYING : No. 04-1377 CIVIL J TRAVEL PLAZA, : Defendants/Appellees : : IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., June 9, 2008 - Appellant, Enoch Black, has filed an appeal to the Superior Court of Pennsylvania 1 following an Order entered March 14, 2008 granting Appellees Motion for Summary Judgment. This opinion is written pursuant to Pa. R.A.P. 1925(a). Appellant’s bases of appeal are as 2 follows: 1.)Whether the Trial Court erred in finding as a matter of law that Defendants were reasonable in their care of the premises where material issues of fact exist as to whether warnings signs were adequate where the signs were posted approximately 80 feet away from where Plaintiff’s injuries occurred? 2.)Whether the Trial Court erred in finding as a matter of law that Defendants were reasonable in their care of the premises where material issues of fact exist as to whether Defendants’ performed reasonable inspections of the “fuel drop” area where the Trial Court erroneously relies on the inspection procedures of the fuel pump area rather than the “fuel drop” area? 3.)Whether the Trial Court erred in finding as a matter of law that Defendants did not create the dangerous condition where Plaintiff has presented evidence that fuel deliveries are performed by Defendants’ employees? 4.)Whether the Trial Court erred in finding as a matter of law that the Plaintiff has failed to identify the dangerous condition where the Court erroneously finds that the sole evidence provided is Plaintiff’s own testimony and where the record 1 See Order of Court, Mar. 14, 2008. 2 See Statement of Matters Complained of pursuant to Pa. R.A.P. 1925(b), filed April 29, 2008. reflects that Defendants’ accident investigation form indicates the presence of diesel fuel? This Court previously filed an opinion on March 14, 2008, which deals with the legal issues presented in this case. This opinion is filed pursuant to Pa. R.A.P. 1925 (a) to supplement the prior opinion and more specifically address those issues raised in the Plaintiff’s Statement of Matters Complained of on Appeal. STATEMENT OF FACTS A detailed explanation of the facts of this case can be found in the primary opinion filed of record on March 14, 2008. DISCUSSION While Appellant contends that this Court erred “in finding” reasonable care and failure to create a dangerous condition, the significant issue in this case is that Appellant did not produce evidence to show that Defendants had constructive notice of the alleged dangerous condition. This Court’s opinion related to reasonable care and identification of the dangerous condition was made in the context of Appellant’s failure to produce evidence of constructive notice. This Court relied on Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 1997), where our Superior Court denied appellant relief when decedent slipped and fell on water on a bathroom floor in a hospital. Id. The Superior Court found that Appellants could not recover because they failed to show that Appellee had notice of the dangerous condition. Id. at 721-22. Appellants in Swift did not prove what caused the water to be on the floor or how long the water was on the floor. Id. at 722. In this case, Appellant has not even shown that diesel fuel was present on the ground. Even if it can be established that diesel fuel was on the ground, Appellant has produced no evidence of what would have caused the diesel to be on the ground or how long the diesel fuel may have been on the ground before he fell. In Swift, even when maintenance 2 records showed that the janitor in charge of maintaining the area where decedent fell left the property four hours prior to the accident, the Court did not find that appellee was negligent in monitoring the area because appellant did not produce evidence that the area was not monitored by other staff. Appellees in the present case have produced even more extensive proof than appellee in Swift that regular monitoring was performed that would have revealed any dangerous condition. As in Swift, Appellant has shown no evidence that the area was not monitored. As the Court in Swift found, the presence of water can be expected on a bathroom floor and does not indicate improper monitoring. See id. at 722. Similarly, diesel fuel can be expected on the ground surface of a truck stop filling station and the presence of diesel fuel on the ground does not indicate that Appellees should have known there was a dangerous condition beyond what is normally expected on the ground at a truck stop. In Swift, the only evidence that there was water on the floor was gleaned from the Plaintiff’s statement that her fall was caused by water on the floor. Similarly, in this case, the Plaintiff concludes that there had to be diesel fuel on the ground even though he admitted that he did not see any substance on the ground other than water. The Court in Swift states that “the mere fact that an accident occurred does not give rise to an inference that the injured person was the victim of negligence.” Id. at 722. The present case compels adherence to the ruling in Swift because Appellant in our case has not even proved the existence of a dangerous condition, and has produced no evidence that Appellees had constructive notice of the alleged condition. In Swift, the Court notes that a party is subject to liability only if “he knows of or reasonably should have known of the condition and the condition involves an unreasonable risk of harm, he should expect that the invitee will not realize it or will fail to protect themselves 3 against it, and the party fails to exercise reasonable care to protect the invitees against the danger.” Swift, 690 A.2d at 722. We have already established that the Appellant has not provided any evidence that Appellee knew or should have known of the alleged dangerous condition. Furthermore, Appellee had every reason to expect that Appellant would realize the potential for a dangerous condition. Appellant had seen the warning signs at the Flying J during previous 3 visits. Appellant is an experienced truck driver and would have been familiar with the possibility of residual diesel on the ground at filling stations, especially during rainy weather. Appellant now contends that Appellees created the alleged dangerous condition because Appellees employees deliver fuel to Flying J. Simply pointing out that Appellees’ employees refuel the pumps is not sufficient to prove that Appellees created the alleged dangerous condition. Appellant also states that Appellees acknowledged the alleged dangerous condition on the accident investigation form. The indication of the presence of diesel fuel on the accident investigation form is simply the customer’s version of the accident and does not offer any support beyond Appellant’s own testimony for the existence of a dangerous condition. Section B of the accident investigation form references the presence of diesel fuel, and Mr. Yeager stated in 4 his deposition that he recorded what he was told by Mr. Black. Section B is a reflection of Mr. Black’s statements to Mr. Yeager and not Mr. Yeager’s personal observations. 3 Pl. Dep. at 41. 4 Yeager Dep. at 15. 4 CONCLUSION Appellant has failed to produce evidence that Appellee had constructive notice of the alleged dangerous condition. The facts in this case are totally analogous to those in Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 1997). Accordingly, this Court finds this precedent controlling and the granting of summary judgment to the Defendants was warranted. By the Court, __________________________ M.L. Ebert, Jr., J. Stephen G. Held, Esquire Counsel for Appellant Handler, Henning & Rosenberg 1300 Linglestown Road Harrisburg, PA 17110 John F. Yanniek, Esquire Counsel for Appellees Mette, Evans & Woodside 3401 North Front Street Harrisburg, PA 17110 5