HomeMy WebLinkAbout2008-6453 Civil
AUDREY SMITH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
:
v. : CIVIL ACTION – LAW
:
:
OUTBACK STEAKHOUSE OF FLORIDA :
INC., :
Defendant : NO. 2008-6453 CIVIL TERM
IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT
BEFORE OLER, GUIDO and MASLAND, JJ.
ORDER OF COURT
AND NOW, this _____ day of June, 2010, upon consideration of Defendant’s Motion for
Summary Judgment, following oral argument held on May 12, 2010, and for the reasons stated in
the accompanying opinion, Defendant’s Motion for Summary Judgment is denied.
BY THE COURT,
__________________
J. Wesley Oler, Jr., J.
Karl J. Januzzi, Esq.
Shollenberger & Januzzi, LLP
2225 Millennium Way
Enola, PA 17025
Attorney for Plaintiff
Norman W. Briggs, Esq.
Briggs Law Office
300 Walnut Street, Suite 2
Philadelphia, PA 19106
Attorney for Defendant
AUDREY SMITH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
:
v. : CIVIL ACTION – LAW
:
:
OUTBACK STEAKHOUSE OF FLORIDA :
INC., :
Defendant : NO. 2008-6453 CIVIL TERM
IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT
BEFORE OLER, GUIDO and MASLAND, JJ.
OPINION and ORDER OF COURT
OLER, J., June _____, 2010.
1
In this civil case involving an alleged slip and fall, Plaintiff has sued a restaurant
corporation for negligence, asserting that Defendant created a dangerous condition in the form of
liquid on a restroom floor, failed to exercise reasonable care in protecting patrons from the
2
dangerous condition, and failed to provide a warning to patrons of the dangerous condition. It is
alleged that Defendant’s negligence was the actual and proximate cause of a slip and a fall which
3
resulted in injuries to Plaintiff.
For disposition at this time is a Motion for Summary Judgment filed by Defendant to
4
Plaintiff’s Complaint. Oral argument was held on May 12, 2010. For the reasons stated in this
opinion, Defendant’s Motion for Summary Judgment will be denied.
Plaintiff’s Complaint, ¶4, filed February 27, 2009 (hereinafter Pl.’s Compl.,_____).
1
Pl.’s Compl. ¶6.
2
Pl.’s Compl. ¶¶5-10.
3
Defendant’s Motion for Summary Judgment, filed March 15, 2010.
4
1
STATEMENT OF FACTS
Plaintiff, Audrey Smith, alleges that she is an adult individual currently residing in
5
Congers, Georgia. Defendant is alleged to be a business entity operating a restaurant located in
6
Mechanicsburg, Cumberland County, Pennsylvania.
Evidence appears in this case in support of Plaintiff’s allegations in the form of
deposition testimony of Plaintiff herself and of the restaurant’s manager on duty at the time of
the alleged fall, Timothy Meszaros. The evidence produced at the depositions may be
summarized as follows:
Plaintiff testified that at around 5:00 p.m. on December 3, 2006, she and her daughters
7
visited Defendant’s restaurant for dinner. Plaintiff testified that, prior to ordering, she went to
8
the ladies’ restroom and, upon entering the handicapped stall, slipped and fell, sustaining
9
injuries to her back, left shoulder, left arm, and left ankle. Plaintiff testified that the fall was
10
caused by her slipping on liquid on the floor. Plaintiff testified that she did not notice any liquid
Pl.’s Compl. ¶1; Deposition of Audrey Smith, at 4, taken July 15, 2009, affixed to Defendant’s
5
Motion for Summary Judgment, Ex. A. filed March 15, 2010 (hereinafter Smith Dep. at _____).
Defendant’s Answer to Plaintiff’s Complaint, ¶2, filed April 17, 2009 (hereinafter Def.’s An. to Pl.’s
6
Compl. _____).
Smith Dep. at 5.
7
Smith Dep. at 6.
8
Smith Dep. at 6-9
9
Smith Dep. at 10-12; but see Smith Dep. at 17. Although Plaintiff alleges in her complaint that she
10
slipped on water on the floor, she testified that she did not inspect the substance:
Q: So you never once looked down to see, see what the actual liquid was or how big it
was?
A: No, I was in so much pain to try to find out what it was.
* * *
Q: . . . You’re not sure that it was water, you just know that you were wet; is that correct?
A: I don't know what. I don’t know what it was.
Q: And you don’t know where it was coming from?
2
11
on the floor of the stall before she fell, and only realized that there was a wet substance on the
12
floor when she discovered that her clothing was “soaking” wet. Plaintiff testified that she did
not notice the size of the alleged wet area on the floor, nor did she attempt to identify the
13
liquid. Plaintiff testified that she lay on the floor in pain for approximately twenty minutes, and
at no time between her fall and when she managed to return to her table did anyone else use the
14
restroom, leaving no other witnesses to either the conditions prior to the slip or to the fall itself.
15
Upon returning to her table, Plaintiff testified, she told her waitress what had happened,
1617
and the waitress notified the manager on duty, Timothy Meszaros, about the incident. At his
deposition, Mr. Meszaros testified that, after learning about the incident from the waitress and
18
Plaintiff herself, he filled out an accident report. Although the accident report indicated that the
floor was wet, Mr. Meszaros testified that he wrote this based solely on Plaintiff’s assertion that
19
the floor was in fact wet, and that he had not inspected the scene of the fall prior to filling out
A: No.
* * *
Q: Did [the Manager, Timothy Meszaros,] confirm that it was actually water on the floor?
A: Yes, I’m pretty sure.
Smith Dep. at 11.
11
Smith Dep. at 12.
12
Smith Dep. at 12-13.
13
Smith Dep. at 11-14.
14
Smith Dep. at 16-17.
15
Smith Dep. at 17. At her deposition, Plaintiff referred to the manager on duty as “Andy,” and was
16
uncertain whether Timothy Meszaros was the manager on duty the day of the incident. See Smith
Dep. at 59-60. But see Deposition of Timothy M. Meszaros, at 10, taken July 15, 2009, affixed to
Defendant’s Motion for Summary Judgment, Ex. B., filed March 15, 2010 (hereinafter Meszaros
Dep. at _____).
Smith Dep. at 17; Meszaros Dep. at 26-27.
17
Meszaros Dep. at 28-30.
18
Meszaros Dep. at 29.
19
3
20
the report. Mr. Meszaros testified that he did see “just condensation” in the back-right corner of
21
the stall. However, Mr. Meszaros could not testify as to whether anyone had mopped the floor
22
prior to his inspection.
At his deposition, Timothy Meszaros testified that Outback had a policy to check the
23
restrooms every forty-five minutes. According to his deposition, the supplies and cleanliness of
24
the restroom were to be overseen by a waitress, busboy, or hostess during each shift. During his
deposition, Mr. Meszaros admitted that there was no set schedule for a designated person to
25
oversee the condition of the restrooms, and that, although there was an expectation that the task
would be done, this specific restaurant did not employ any formal procedure to assure adherence
26
to the policy. Further, his testimony left a question as to whether an employee did in fact check
27
the ladies’ restroom for cleanliness.
DISCUSSION
Summary judgment rules. Pennsylvania Rule of Civil Procedure 1035.2 makes summary
judgment available to a party when the pleadings, depositions, answers to interrogatories,
admissions on file, and supporting affidavits considered together reveal no genuine issue of
material fact, and the moving party is therefore entitled to judgment as a matter of law, or when,
after discovery, the party bearing the burden of proof has failed to produce evidence of essential
Meszaros Dep. at 30-32.
20
Meszaros Dep. at 34.
21
Meszaros Dep. at 32-33.
22
Meszaros Dep. at 14-16, 20.
23
See Meszaros Dep. at 14, 17, 33.
24
Meszaros Dep. at 17-18.
25
See generally Meszaros Dep. at 14, 16, 18, 20.
26
See Meszaros Dep. at 18-19.
27
4
facts which would warrant submission of the issue to a jury. Pa. R. C. P. 1035.2; Toy v.
Metropolitan Life Ins. Co., 593 Pa. 20, 928 A.2d 186 (2007).
Essentially, the rule pertaining to a motion for summary judgment encompasses two
concepts: (1) the absence of a dispute as to any material fact; or (2) the absence of evidence
sufficient to permit a jury to find a fact essential to the cause of action or defense. See Pa. R. C.
P. 1035.2 comment. Summary judgment is appropriate in only the clearest of cases, where it is
certain that the moving party is entitled to judgment as a matter of law. See Boyer v. Walker, 714
A.2d 458, 459 (Pa. Super. 1998).
If a defendant is the moving party, he or she may make the showing necessary to support
the entry of summary judgment by pointing to materials which indicate that the plaintiff is
unable to satisfy an element essential to his or her cause of action; correspondingly, the non-
moving party must adduce sufficient evidence on an issue essential to his or her case and on
which that party bears the burden of proof, such that a jury could return a verdict favorable to the
non-moving party. Rauch v. Mike-Mayer, 2001 PA Super 270, ¶14, 783 A.2d 815, 824 appeal
denied, Rauch ex rel. Estate of Rauch v. Mike Mayer, 586 Pa. 634, 793 A.2d 909 (2002).
When making a determination as to the existence of evidence of a material fact sufficient
to permit a jury to find an essential element to the cause of action or defense, the court must view
the record in the light most favorable to the nonmoving party. Pa. R. Civ. P. 1035.2; Rauch, 2001
PA Super at ¶13, 783 A.2d at 823; see Leonelli v. McMullen, 700 A.2d 525, 527 (Pa. Super.
1997). The nonmoving party is entitled to the benefit of all reasonable inferences deducible from
the evidence, and all doubts as to the existence of evidence of a material fact in dispute must be
resolved against the moving party. See Pennsylvania State University v. County of Centre, 532
Pa. 142, 145, 615 A.2d 303, 304 (1992).
5
Negligence. A prima facie negligence claim requires the plaintiff to present evidence of
certain essential elements: (1) the defendant had a duty to conform to a certain standard of
conduct; (2) the defendant breached that duty; (3) such breach had a causal connection to the
resulting injury; and (4) the plaintiff incurred actual loss or damage. See Krentz v. Consolidated
Rail Corp., 589 Pa. 576, 589, 910, A.2d 20, 28 (2006). Therefore, before a plaintiff can establish
a negligence claim, he or she must first establish that the defendant owed and breached a legal
duty. Id.
A business invitee is a person who is invited to enter or remain on the premises of
another for a purpose directly or indirectly connected with business dealings with the possessor
of the premises. Emge v. Hogosky, 712 A.2d 315, 317 (Pa. Super. 1998), citing Palange v.
Philadelphia Law Dept., 433 Pa. Super. 373, 640 A.2d 1305 (1994); Restatement (Second) of
Torts §332 (1965). The operator of a business is under an affirmative duty to protect a business
visitor not only against known dangers on the premises, but also against dangers that might be
discovered with reasonable care. See Crotty v. Reading Industries, 237 Pa. Super. 1, 7-8, 345
A.2d 259, 262-63 (1975). The plaintiff must present evidence which proves that the proprietor
deviated in some way from his or her duty of reasonable care. See Zito v. Merit Outlet Stores,
436 Pa. Super. 213, 217, 647 A.2d 573, 575 (1994). Evidence must show that the defendant
knew, or in exercise of reasonable care should have known, of the existence of a harmful
condition. Id., citing Restatement (Second) of Torts §343. Therefore, whether Defendant
exercised reasonable care to discover conditions potentially hazardous to Plaintiff as a business
invitee is a necessary element in this negligence case.
While a defendant’s internal policies may represent some evidence of a reasonably
prudent standard of care, voluntary written policies and procedures do not themselves establish a
6
per se standard of due care. See Maize v. Atlantic Refining Co. 352 Pa. 51, 57, 41 A.2d 850, 853
(1945) (customary methods or conduct may be a test of negligence, but is neither conclusive nor
controlling on the question of negligence). Although a defendant’s failure to adhere to its own
internal policy may be some evidence of negligence, violation of a company’s internal rules is
not negligence in and of itself, as the business owner is still responsible for the exercise of
reasonable care. Id. However, such customary conduct may be considered with other
circumstances to determine whether reasonable care was in fact exercised.
Application of law to facts. In this case, Plaintiff has placed in the record sufficient
evidence from which it could be found that she was a business invitee of Defendant, owed a high
duty of care. She has also placed in the record evidence – in the form of testimony of (a)
“soaked” clothing, (b) “condensed” water, (c) the failure of any restaurant personnel to appear in
the restroom for a substantial period of time following the incident, and (d) an inability of
management to vouch for its adherence to a reasonable inspection routine – from which a jury
might infer that the condition which allegedly caused harm to her was not a minor and transitory
hazard, and that it could have been discovered by Defendant had it adhered to its own inspection
policies. Although Plaintiff’s case is, to say the least, not a strong one, the evidence presented, in
the court’s view, is sufficient to survive a motion for summary judgment.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this _____ day of June, 2010, upon consideration of Defendant’s Motion for
Summary Judgment, following oral argument held on May 12, 2010, and for the reasons stated in
the accompanying opinion, Defendant’s Motion for Summary Judgment is denied.
BY THE COURT,
7
__________________
J. Wesley Oler, Jr., J.
Karl J. Januzzi, Esq.
Shollenberger & Januzzi, LLP
2225 Millennium Way
Enola, PA 17025
Attorney for Plaintiff
Norman W. Briggs, Esq.
Briggs Law Office
300 Walnut Street, Suite 2
Philadelphia, PA 19106
Attorney for Defendant
8