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Home My WebLink About2012-4433 JANET RHODES, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : 12-4433 CIVIL : GIANT FOOD STORES, INC., : CIVIL ACTION - LAW Defendant. : IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J., OLER, S.J., and PLACEY, J. OPINION and ORDER At issue before this Court is Defendant Giant Food’s Motion for Summary Judgment. On August 14, 2010, at approximately 2:00 p.m., Plaintiff Janet Rhodes entered Defendant’s Giant Food Store #150 located at 325 West Freedom Avenue, Burnham, Mifflin County, Pennsylvania. (Plaintiff’s Deposition at 11). While in the Defendant’s store, Plaintiff slipped and fell in a puddle of laundry detergent which she failed to notice because she was looking at the upper shelves of the aisle. (Plaintiff’s Deposition at 15-16). EMS was dispatched at 2:26 p.m., shortly after Plaintiff was discovered. (Overdorff Deposition at 12-13). Plaintiff is unsure when the detergent got on the floor, how the detergent got on the floor, and does not believe an employee of 1 Defendant put the detergent on the floor. (Plaintiff’s Deposition at 22). Plaintiff alleges that Defendant knew or should have known and warned of the dangerous condition that existed as a result of the puddle of detergent. Conversely, Defendant argues Plaintiff has failed to establish facts in the record necessary to determine the exact length of time the dangerous condition existed and, therefore, that Defendant had constructive 1 Defendant utilizes a program known as “Clean Sweep” to ensure the premises are orderly and free of hazards. (Overdorff Deposition at 8-10). According to the Defendant, the last Clean Sweep check of the aisle at issue, the detergent aisle, prior to the incident involving Plaintiff was at 2:05 p.m. (Clean Sweep report). Because there are factual questions concerning the integrity of the program, the Defendant’s allegations are not dispositive of or even relevant to the instant motion. notice of the condition. For the following reasons, we find Plaintiff has failed to meet her burden in establishing Defendant had constructive notice of the dangerous condition and that Defendant is entitled to judgment as a matter of law. Summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2. The Restatement (Second) of Torts § 343 defines the duty that a possessor of property owes to a business invitee as follows: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, if but only if, he: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk 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 the danger. It does not follow from § 343, however, that the proprietor of a store is an insurer of its patrons. Neither the mere existence of a harmful condition in a store nor the mere happening of an accident due to such a condition evidences a breach of the proprietor's duty of care or raises a presumption of negligence. Rather, an invitee must present evidence proving that the proprietor deviated from the duty of reasonable care that it owed in the circumstances, i.e., that the proprietor knew or in the exercise of reasonable care should have known of the harmful condition. The invitee can satisfy this burden by establishing, inter alia, that the proprietor had constructive notice of the harmful condition. Neve v. Insalaco's, 771 A.2d 786, 790-91 (Pa. Super. Ct. 2001) (internal citations omitted). “What constitutes constructive notice must depend on the circumstances of each case, but one of the most important factors to be taken into consideration is the time elapsing between the origin of the defect or hazardous condition and the accident." Id. at 791. Further, “to charge a defendant store with constructive notice of a harmful condition a 2 plaintiff need not produce positive testimony as to how long the defect existed if: (1) the defect is of a type with an inherently sustained duration, as opposed to a transitory spill which could have occurred an instant before the accident; and (2) a witness saw the defect immediately before or after the accident.” Id. Here, Plaintiff was a business invitee, as her purpose for being present in Defendant’s store was to purchase groceries. Plaintiff has alleged that Defendant had constructive notice of the dangerous condition. However, it is uncontested that the substance on which Plaintiff slipped was a puddle of laundry detergent. A puddle or spill is transitory in nature and therefore needs to be proven by positive evidence as to the time in which the dangerous condition existed. See Neve, at 791. Plaintiff has failed to present evidence establishing the actual time in which the spill occurred, as well as the length of time the puddle existed. Plaintiff additionally has not established how the puddle formed on the floor, only noting that a bottle had its cap removed and had leaked its contents onto the floor. Without evidence to establish the length of time in which the detergent was present as a dangerous condition or how the detergent became present on the floor, Defendant cannot be deemed to have constructive notice. See Estate of Swift by Swift v. Ne. Hosp., 690 A.2d 719, 723 (Pa. Super. Ct. 1997) (water on the floor from unexplained source for unknown period of time not sufficient to establish constructive notice); Moultrey v. Great A & P Tea Co., 422 A.2d 593 (Pa. Super. Ct. 1980) (presence of a cherry on the floor of the produce section due to unknown cause for unknown period of time insufficient to establish constructive notice); Myers v. Penn Traffic Co., 606 A.2d 926 (Pa. Super. Ct. 1992) (presence of a grape on 3 the floor of the produce section due to unknown cause for an unknown period of time not sufficient to establish constructive notice). ORDER th AND NOW, this 24 day of June, 2015, upon consideration of Defendant’s Motion for Summary Judgment, briefs by the parties, and after oral argument on the GRANTED matter, Defendant’s Motion for Summary Judgment is , and summary judgment is entered in favor of Defendant Giant Food Stores, LLC, incorrectly captioned Giant Food Stores, Inc. BY THE COURT: ________________________ Kevin A. Hess, P.J. 4 JANET RHODES, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : 12-4433 CIVIL : GIANT FOOD STORES, INC., : CIVIL ACTION - LAW Defendant. : IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J., OLER, S.J., and PLACEY, J. ORDER th AND NOW, this 24 day of June, 2015, upon consideration of Defendant’s Motion for Summary Judgment, briefs by the parties, and after oral argument on the GRANTED matter, Defendant’s Motion for Summary Judgment is , and summary judgment is entered in favor of Defendant Giant Food Stores, LLC, incorrectly captioned Giant Food Stores, Inc. BY THE COURT: ________________________ Kevin A. Hess, P.J. Christina L. Bradley, Esquire 2040 Linglestown Road, Suite 300 Harrisburg, PA 17110 For the Plaintiff George B. Faller, Jr., Esquire Seth T. Mosebey, Esquire 10 East High Street Carlisle, PA 17013 For the Defendant :rlm