Loading...
HomeMy WebLinkAbout2009-1163 JANET G. CALDWELL, : IN THE COURT OF COMMON PLEAS PLAINTIFF : OF CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CONFIT ON MARKET, LLC, : DEFENDANT : 09-1163 CIVIL TERM IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J. AND MASLAND, J. OPINION AND ORDER OF COURT Masland, J., September 29, 2010:-- Before the court is the motion for summary judgment filed by Defendant, Confit on Market, LLC, against Plaintiff, Janet G. Caldwell. After briefing and argument by the parties, we now deny Defendant's motion for summary judgment. I. Background This personal injury case arises from Plaintiff's slip and fall while a business invitee at the Defendant restaurant. Plaintiff, the non-moving party, summarizes the relevant facts as follows. In December of 2007, Plaintiff was dining at the Defendant restaurant when she fell and fractured her hip on the dining room floor. Plaintiff and several of her dinner companions subsequently described the floor as very slippery, though none could identify any foreign substance that might have caused the floor's slipperiness. As Plaintiff testified, “I do not think there was any spillage on the floor. … I think the floor was innately slippery.” Pl.'s Dep. at 33. Plaintiff presents three other accounts of allegedly similar accidents to establish Defendant's slippery floor presented a dangerous condition. Summarized briefly, these include the fall of a waitress prior to Plaintiff's accident and the subsequent falls of two patrons three weeks and six months after Plaintiff's accident. Plaintiff also notes that roughly six months after her accident, the owner of the Defendant restaurant held a fashion show on the premises and warned the participating models that the floor was slippery and to be 09-1163 CIVIL TERM careful. Finally, Plaintiff asserts that written incident reports were taken by Defendant's employees contemporaneously with her accident. Defendant was unable to produce copies of some of these reports during discovery. As such, Plaintiff would have the jury infer the reports included material damaging to the defense. II. Discussion Defendant contends Plaintiff cannot establish a prima facie case because she has failed to show the existence of a dangerous condition in the Defendant restaurant. Specifically, Defendant maintains Plaintiff's assertion that the floor was innately slippery is not sufficient to prove a dangerous condition because a dry, substance-free floor is not a dangerous condition. Further, Defendant argues neither the alleged similar accidents nor the potential for an adverse inference drawn from missing incident reports is sufficient for Defendant to establish a prima facie case thus making summary judgment appropriate. For her part, Plaintiff argues whether Defendant's floor was unreasonably dangerous presents a question of material fact precluding summary judgment. In support of this position, she has introduced evidence of similar accidents at the Defendant restaurant. Plaintiff submits that these similarities, coupled with the possibility of an adverse inference instruction regarding the missing incident report, raise a question of fact for the jury, thus precluding summary judgment. A. Standard of Review Summary judgment is properly granted only where the pleadings, depositions, answers to interrogatories, and affidavits establish there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa. R.C.P. No. 1035.1. Relevant here, summary judgment is appropriate where there is no genuine issue of any material fact as to a -2- 09-1163 CIVIL TERM necessary element of the cause of action that could be established by additional discovery. See Pa. R.C.P. No. 1035.2(1); Wilson v. El-Daief, 600 Pa. 161, 170-71, 964 A.2d 354, 359 (2009). In considering the merits of a motion for summary judgment, we view the record in the light most favorable to the non-moving party and resolve all doubts as to the presence of a genuine issue of material fact against the moving party. Wilson, 600 Pa. at 171, 964 A.2d at 359. B. Dangerous Condition Defendant seeks summary judgment on the basis of Plaintiff's failure to offer sufficient evidence to establish the floor in question presented a dangerous condition. In support of this position, Defendant attacks Plaintiff's case for establishing a dangerous condition on three grounds: first, an innately slippery floor, absent other evidence is not a dangerous condition; second, other alleged accidents are not sufficiently similar to that suffered by Plaintiff to show a dangerous condition; and third, the possibility a jury may draw an adverse inference based on Defendant's inability to produce relevant incident reports is insufficient to show a dangerous condition. We disagree. 1. Innately Slippery Floor Pennsylvania courts have consistently held that a normally waxed or polished floor does not constitute a dangerous condition. “A smooth tile floor is not of itself a dangerous condition ….” Sheridan v. Horn & Hardart Baking Co., 77 A. 362, 362 (Pa. 1951). Further, “[e]vidence of a highly polished floor alone does not sustain the charge of negligence if a guest or invitee falls and is injured thereby. Cutro v. Scranton Medical Arts Bldg., 198 A. 141, 141-42 (Pa. 1938) (emphasis added). Instead, to establish a waxed or polished floor constituted a dangerous condition, plaintiff must show that “such alleged improper application [of wax or polish] created a condition so obviously dangerous to amount to evidence from -3- 09-1163 CIVIL TERM which an inference of negligence could arise.” Farrell v. Bonner, 227 A.2d 683, 685 (Pa. 1967). Thus, unless Plaintiff can present additional admissible evidence of negligence beyond the fact of her fall on an innately slippery floor, her claim cannot survive summary judgment. 2. Evidence of Similar Accidents Plaintiff distinguishes these cases on the grounds that her evidence of similar accidents at the Defendant restaurant provide evidence of a dangerous condition beyond waxing or polishing alone. Evidence of prior accidents is generally relevant to show the existence of a dangerous condition subject to the limitation that the prior incidents must have taken place under the same or similar circumstances. Vernon v. Stash, 532 A.2d 441, 446 (Pa. Super. 1987). In determining whether the other accidents and Plaintiff's accident were substantially similar, we weigh several factors, including: whether the same instrumentality was involved; whether the accidents occurred under the same or similar conditions or circumstances; and, whether the accidents occurred at substantially the same place. Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 983 (Pa. Super. 2005). Here, Plaintiff, as the proponent of the evidence, “bears the burden to establish the similarity between the other accidents and the accident at issue before the evidence is admitted.” Id. (emphasis in original). Finally, “admission of such evidence is tempered by judicial concern that the evidence may raise collateral issues which confuse both the real issue and the jury.” Mt. Olive Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263, 1274-75 (Pa. Super. 2001). Applying the factors enumerated in Hutchinson, we conclude Plaintiff has carried her burden to establish the substantial similarity of her accident with the other accidents such that the evidence of those accidents is admissible for the purpose of proving the existence of a -4- 09-1163 CIVIL TERM dangerous condition. First, all the accidents involved the same instrumentality: Defendant's dining room floor. Second, all the accidents occurred under largely similar circumstances: patrons or employees slipping on the dining room floor. Third, all the accidents occurred at substantially the same place: again, Defendant's dining room floor. Defendant notes that one of the patrons alleged to have fallen in a similar manner, Ms. Tan, stated that her fall was caused by slipping on a foreign substance on the floor, unlike the Plaintiff who claims she slipped on the floor itself. Ultimately, this does render Ms. Tan's description of her fall less probative for proving whether Defendant's floor presented a dangerous condition. However, the weight of the evidence is for the jury to determine. For the purposes of this motion, we find the evidence of Ms. Tan's fall and the evidence of the other falls are sufficiently similar to the Plaintiff's accident and, therefore, they are admissible to establish a dangerous condition. III. Conclusion Based on our determination that the evidence of similar accidents is admissible, we find there is a genuine issue of material fact regarding the existence of a dangerous condition, and therefore deny defendant's motion for summary judgment. Based on this conclusion, we need not reach the issue of spoliation. ORDER OF COURT AND NOW, this day of September, 2010, the Defendant’s motion for IS DENIED. summary judgment, By the Court, Albert H. Masland, J. -5- 09-1163 CIVIL TERM Ann M. Caldwell, Esquire For Plaintiff Jefferson J. Shipman, Esquire For Defendant :saa -6- JANET G. CALDWELL, : IN THE COURT OF COMMON PLEAS PLAINTIFF : OF CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CONFIT ON MARKET, LLC, : DEFENDANT : 09-1163 CIVIL TERM IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J. AND MASLAND, J. ORDER OF COURT AND NOW, this day of September, 2010, the Defendant’s motion for IS DENIED. summary judgment, By the Court, Albert H. Masland, J. Ann M. Caldwell, Esquire For Plaintiff Jefferson J. Shipman, Esquire For Defendant :saa