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HomeMy WebLinkAbout2006-2872 Civil ELEANOR E. ZINN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : NORFOLK SOUTHERN : CORPORATION, : CIVIL ACTION Defendant : : v. : : RENZENBERGER, INC., : Additional Defendant : NO. 2006 – 2872 CIVIL TERM IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J., OLER and MASLAND, JJ. OPINION and ORDER OF COURT OLER, J., September 7, 2010. 1 In this civil case involving an alleged slip and fall, Plaintiff has sued the owner and operator of a railroad facility known as Enola Yard in Enola, Cumberland County, Pennsylvania for negligence, asserting that Defendant created a dangerous condition in the form of liquid on a restroom floor, failed to properly maintain the restroom, failed to provide safe passage for individuals using the restroom, failed to provide a warning to patrons of the dangerous condition, failed to properly supervise maintenance personnel and/or agents or assigns who maintained and cleaned the restroom, and failed to regularly 2 inspect the restroom. It is alleged that Defendant’s negligence was the proximate cause 3 of a slip and fall that resulted in injuries to Plaintiff. Defendant Norfolk Southern Plaintiff’s Complaint, filed June 29, 2006. 1 Plaintiff’s Complaint, ¶12, filed June 29, 2006. 2 Plaintiff’s Complaint, ¶¶10-13, 15-20, filed June 29, 2006. 3 Railway Company (hereinafter “Norfolk Southern”) joined additional defendant, Renzenberger, Inc., alleging that Defendant Norfolk Southern and Renzenberger, Inc. (hereinafter “Renzenberger”) had entered into a Taxi Service Agreement, and that Section 14 of the Taxi Service Agreement contained an indemnification and hold harmless clause, whereby Renzenberger agreed to hold harmless Defendant Norfolk Southern with respect to suits brought against Defendant Norfolk Southern by Renzenberger employees for injuries allegedly sustained by virtue of the performance or 4 non-performance of services under the Agreement. For disposition at this time is a Motion for Summary Judgment filed by Defendant 5 Norfolk Southern on Plaintiff’s claim against it. Oral argument was held on August 18, 2010. For the reasons stated in this opinion, Defendant’s Motion for Summary Judgment will be denied. PROCEDURAL HISTORY 6 Plaintiff filed a Praecipe for Writ of Summons on May 19, 2006. On June 12, 7 2006, Defendant, Norfolk Southern, filed a Praecipe for Rule To File Complaint. 8 Plaintiff filed her Complaint on June 29, 2006. Norfolk Southern filed its Answer with Norfolk Southern’s Complaint Joining Additional Defendant Renzenberger, Inc., ¶¶6-8, 10-11, filed 4 September 13, 2006. Motion of Norfolk Southern Corporation, Defendant for Summary Judgment, filed June 30, 2010. 5 Praecipe for Writ of Summons in Civil Action, filed May 19, 2006. 6 Praecipe for Rule to File Complaint, filed June 14, 2006. 7 Plaintiff’s Complaint, filed June 29, 2006. 8 2 910 New Matter on July 18, 2006 to which Plaintiff replied on August 2, 2006. Norfolk Southern joined Additional Defendant Renzenberger on September 13, 2006, alleging, inter alia, that Renzenberger had agreed to indemnify and hold harmless Norfolk 11 Southern for suits against Norfolk Southern by Renzenberger employees. On March 7, 12 2007, Renzenberger filed a Motion for Summary Judgment, which was opposed by 1314 Norfolk Southern, and was denied by this court on June 23, 2008. On June 30, 2010, 15 Norfolk Southern filed the Motion for Summary Judgment sub judice, which is opposed 16 by Plaintiff and was argued before this court on August 18, 2010. STATEMENT OF FACTS According to Plaintiff, Eleanor Zinn, she is an adult individual currently residing 17 in Lemoyne, Cumberland County, Pennsylvania. According to Defendant, Norfolk Southern, it is a Virginia corporation with its principal place of business located in Answer with New Matter of Defendant Norfolk Southern Corporation, filed July 19, 2006. 9 Reply to New Matter, filed August 2, 2006. 10 Norfolk Southern’s Complaint Joining Additional Defendant Renzenberger, Inc., filed September 11 13, 2006. Motion for Summary Judgment of Additional Defendant, Renzenberger Inc, filed March 7, 2008. 12 Norfolk Southern’s Response to Renzenberger’s Motion for Summary Judgment, filed April 4, 13 2008. Order of Court, In re: Motion for Summary Judgment of Additional Defendant, dated June 23, 14 2008 (Hess, Oler and Guido, JJ.). Motion of Norfolk Southern Corporation, Defendant for Summary Judgment, filed June 30, 2010. 15 Answer to Motion for Summary Judgment, filed July 16, 2010 16 Deposition of Eleanor Zinn, at 6, taken February 12, 2007, filed August 12, 2010 (hereinafter 17 “Zinn Dep. at _____, Feb. 12, 2007”). At the time Plaintiff filed her Complaint, she alleged that she resided in New Cumberland, Cumberland County, Pennsylvania. Plaintiff’s Complaint, ¶1, filed June 29, 2006. 3 Norfolk, Virginia, and it owns and operates the Enola Railroad Yard (hereinafter “Enola 18 Yard”), located in Enola, Cumberland County, Pennsylvania. Plaintiff and Defendant disagree as to whether discovery has been completed at this time; however, it appears of record that the parties have engaged in substantial discovery. Evidence appears in this case in support of Plaintiff’s slip-and-fall allegations in the form of deposition testimony of Plaintiff herself and of her supervisor at the time of the alleged fall, Mary Alice Orris. The evidence produced at the depositions of record may be summarized, in pertinent part, as follows: Plaintiff testified that at approximately 11:05 in the morning of May 24, 2004, she arrived at Defendant’s railroad facility pursuant to her employment with Renzenberger as 19 a driver. Plaintiff testified that, upon her arrival at Enola Yard, she used the ladies’ 2021 restroom at Defendant’s facility and, prior to entering a stall, slipped and fell, causing various injuries to her lower back, muscle spasms, leg and foot pain, injury to her left arm Answer with New Matter of Defendant Norfolk Southern Corporation, ¶¶2-3, July 19, 2006; 18 Norfolk Southern’s Complaint Joining Additional Defendant Renzenberger, Inc., ¶1, September 13, 2006. Addording to Defendant, Plaintiff’s complaint incorrectly alleged that Defendant Norfolk had its principal place of business in Harrisburg, Dauphin County, Pennsylvania. See Plaintiff’s Complaint, ¶2, filed June 29, 2006; but see Answer with New Matter of Defendant Norfolk Southern Corporation, ¶2, filed July 19, 2006. Zinn Dep. at 7-8, Feb. 12, 2007. Zinn testified that, as a driver, her duties included transporting a 19 train crew and “tak[ing] them wherever they had to be dispatched to.” Zinn Dep. at 8, Feb. 12, 2007. Zinn Dep. at 30, Feb. 12, 2007. Zinn testified that, according to her supervisors, Mary Orris and 20 Cynthia Schiovine, she was permitted to use the ladies’ room at Enola Yard. Zinn Dep at 25, Feb 12, 2007. Ms. Orris similarly testified that Plaintiff had permission to use the bathroom facilities at the Norfolk Southern facility in Enola. Deposition of Mary Orris, at 9, taken August 13, 2009, filed August 12, 2010 (hereinafter “Orris Dep. at _____, August 13, 2009). Deposition of Eleanor Zinn, at 74, taken September 10, 2007, filed August 12, 2010 (hereinafter 21 “Zinn Dep. at _____, Sept. 10, 2007”). 4 22 and shoulder, and other conditions. Plaintiff testified that the fall was caused by her 23 slipping on liquid on the floor. Plaintiff testified that she had not noticed any signs 24 posted indicating that there was a slippery condition. It did not appear that any other person had used the restroom between the time Plaintiff fell and when she left the restroom, nor was there evidence of the existence of any other witness as to the conditions in the restroom immediately prior to the alleged slip or to the alleged fall itself. At her deposition, Mary Orris testified that, on numerous occasions, she had complained to the Enola Yard supervisor, Randy Fannon, that the Enola Yard cleaning Plaintiff’s Complaint, ¶11 ; See Zinn Dep. at 80-115, Sept. 10, 2007; See Plaintiff’s Answer to 22 Defendant’s Request for Production of Documents, filed August 16, 2006. Zinn Dep. at 73, Sept. 10, 2007; but see Zinn Dep. at 74, Sept. 10, 2007. Although Plaintiff testified 23 that she slipped on water on the floor, she conceded that her testimony as to the identity of the liquid was based on assumption: Q: Well, when you say it was wet, does that make you think it had been—Was it wet like it had been cleaned wet? A: It had just been mopped recently. Q: How do you know that? A: Because I was sitting in water. It was damp. Q: . . . Do you know it was from mopping? A: No, I do not. I took it for granted that it had been the janitor that had mopped it. * * * A: It is the normal assumption that most people would make. Zinn Dep. at 73-74, Sept. 10, 2007. Zinn Dep. at 73, 120, Sept. 10, 2007. Plaintiff testified that 24 [t]he floor was wet all the way back at the commodes. It was not wet in the anteroom. It was not wet just inside the door. There were no signs posted inside the bathroom, outside the bathroom, in the anteroom, anywhere to state caution, wet floor. Id. at 73; See Orris-5, affixed to Orris Dep., taken August 13, 2009, filed August 12, 2010. 5 25 crew had not posted wet floor signs after mopping. Ms. Orris further testified that she had slid on the “crew room” floor a couple of times due to slippery conditions, but was 26 caught by other workers. Although Ms. Orris testified she could not recall their identities, she stated that other workers had complained to her regarding un-posted slippery conditions in the restroom, and that she had relayed this information to the Enola 27 Yard supervisor. DISCUSSION Summary judgment principles. 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 facts which would warrant submission of the issue to a jury. Pa. R.C.P. 1035.2; Toy v. Metro. 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 Orris Dep. at 13-14, 56, taken August 13, 2009. 25 Orris Dep. at 14, taken August 13, 2009. 26 See Orris Dep. at 60, taken August 13, 2009. Mary Orris testified that “there had been some 27 complaints from a lot of the guys,” indicating that the slippery conditions allegedly complained of were those found in the men’s restroom. Id. at 60. 6 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 a dispute as to 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.C.P. 1035.2; Rauch, 2001 PA Super at ¶5, 783 A.2d at 821. 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 Univ. v. Cnty. of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992). Summary judgment may be granted only in those cases when the facts are so clear that “reasonable minds cannot differ.” Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 586, 812 A.2d 1218, 1222 (2002). 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 7 certain standard of conduct; (2) the defendant breached that duty; (3) such breach had a casual connection to the resulting injury; and (4) the plaintiff incurred actual loss or damage. See Krentz v. Consol. Rail Corp. 589 Pa. 576, 588-89, 910 A.2d 20, 27-28 (2006); Atcovitz v. Gulph Mills Tennis Club, Inc., 517 Pa. 580, 586, 812 A.2d 1218, 1222 (2002). Therefore, before a plaintiff can establish a negligence claim, he or she must first establish that the defendant owed and breached a legal duty. See Krentz, 589 Pa. at 589, 910 A.2d at 28. A business invitee is a person who is invited to enter or remain upon 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 duty owed to a business invitee is the highest duty owed to any entrant upon land. Campisi v. ACME Markets, Inc., 2006 PA Super 368, ¶5 , 915 A.2d 117, 119. 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.” Id.; see Crotty v. Reading Indus., 237 Pa. Super. 1, 7-8, 345 A.2d 259, 262-63 (1975). The plaintiff must present evidence that proves that the proprietor deviated in some way from his or her duty of reasonable care owed under the circumstances. Campisi, 2006 PA Super 368 at ¶6, 915 A.2d at 119-20; see Zito v. Merit Outlet Stores, 436 Pa. Super. 213, 217, 647 A.2d 573, 575 (1994). A plaintiff must show that the defendant knew, or in the exercise of reasonable care should have known, of the existence of a harmful condition. Id., citing 8 Restatement (Second) of Torts §343. Therefore, Defendant’s failure to exercise reasonable care to discover conditions potentially hazardous to Plaintiff, as a business invitee, is a necessary element in this negligence case. 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, and accordingly was owed a high duty of care. She has also placed in the record evidence, in the form of testimony, of (a) wet clothing, (b) water on the floor in the ladies’ restroom where she had fallen, (c) lack of cautionary signage, and (d) notice provided regarding slippery conditions caused by a cleaning crew employed at the facility. Based on the foregoing, a jury might infer that the condition that allegedly caused harm to Plaintiff was not a minor and transitory hazard, and that it could have been prevented by Defendant had it taken reasonable actions in response to the notice allegedly provided by Mary Orris of unsafe conditions. 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 th AND NOW, this 7 day of September, 2010, upon consideration of Defendant Norfolk Southern Railway Company’s Motion for Summary Judgment, following oral argument held on August 18, 2010, and for the reasons stated in the accompanying opinion, Defendant’s Motion for Summary Judgment is denied. 9 BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Joseph J. Dixon, Esq. The Law Office of Joseph J. Dixon, Esquire 126 State Street Harrisburg, PA 17101 Attorney for Plaintiff Joshua D. Bonn, Esq. Craig J. Staudenmaier, Esq. Lucinda Glinn, Esq. Nauman Smith Shissler & Hall, LLP 200 North Third Street P.O. Box 840 Harrisburg, PA 17108 Attorneys for Defendant Philip Keidel, Esq. Law Offices of Ralph H. Touch 401 Penn Street, Suite 100 Reading, PA 19601 Attorney for Additional Defendant 10 ELEANOR E. ZINN, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : NORFOLK SOUTHERN : CORPORATION, : CIVIL ACTION Defendant : : v. : : RENZENBERGER, INC., : Additional Defendant : NO. 2006 – 2872 CIVIL TERM IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J., OLER and MASLAND, JJ. ORDER OF COURT th AND NOW, this 7 day of September, 2010, upon consideration of Defendant Norfolk Southern Railway Company’s Motion for Summary Judgment, following oral argument held on August 18, 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. Joseph J. Dixon, Esq. The Law Office of Joseph J. Dixon, Esquire 126 State Street Harrisburg, PA 17101 Attorney for Plaintiff 2 Joshua D. Bonn, Esq. Craig J. Staudenmaier, Esq. Lucinda Glinn, Esq. Nauman Smith Shissler & Hall, LLP 200 North Third Street P.O. Box 840 Harrisburg, PA 17108 Attorneys for Defendant Philip Keidel, Esq. Law Offices of Ralph H. Touch 401 Penn Street, Suite 100 Reading, PA 19601 Attorney for Additional Defendant