Gumby, J. v. Karns Prime and Fancy Food, LTD. ( 2019 )

J-S65031-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JEANNETTE GUMBY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KARNS PRIME AND FANCY FOOD, : No. 1030 MDA 2019
LTD. :
Appeal from the Order Entered June 4, 2019
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2017-CV-7013-CV
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED DECEMBER 30, 2019
Appellant, Jeannette Gumby, challenges the order granting summary
judgment in favor of Appellee Karns Prime and Fancy Food, Ltd. After
careful review, we reverse.
In its opinion, the trial court set forth the facts of this case as follows:
The within negligence action arises out of a slip-and-fall which
occurred on October 11, 2015 at [Appellee]’s supermarket.
[Appellant] alleges that she “slipped on a liquid that had leaked
or spilled onto the floor” causing injury to her right shoulder,
neck, and back.[1] Complaint, [2/23/2018, at 2, 4-5 ¶¶] 5, 14.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 In her complaint, Appellant alleged, inter alia, that she --
[s]ustained bodily injuries, both new and/or aggravation of
existing conditions, including but not limited to injuries to her
right shoulder, including but not limited to focal partial -
(Footnote Continued Next Page)
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In her deposition, [Appellant] testified that she was walking at a
normal pace, looking straight ahead, when she suddenly fell to
the floor. [Appellee]’s Motion for Summary Judgment, Exhibit A,
at 22-23. [Appellee] did not see anything on the floor prior to
her fall. Id. at 23. She did not know, when she landed on the
floor, what, if anything, caused her to fall. Id. [Appellant]
believes that she slipped on liquid from smashed grapes based
upon the statement of [Appellee]’s Assistant Manager,
Noah Match, who assisted [Appellant] shortly after her fall, that
he observed liquid in the area. Id. at 29-30.
Trial Court Opinion, filed June 4, 2019, at 1 (some formatting). Appellant
“concedes that she does not know how the grape or grape liquid got to the
floor” nor precisely “how long it was there[. Appellee]’s Motion for Summary
Judgment, Exhibit A, at 35.” Id. at 3, 5 (some formatting).
On February 23, 2018, Appellant commenced this action by complaint.
On November 8, 2018, Appellee moved for summary judgment solely on the
basis that Appellant “cannot sustain her burden of proving that [Appellee]
either had a hand in the creation of the alleged dangerous condition or that
thickness tear of the supraspinatus tendon at its intersection
onto the humerous, supraspinatus tendinosis with interstitial
tear; synovitis and advanced cartilage injury of the
patellofemoral joint; disc protrusion at L5-S1 in close contact
with the traversing left S1 nerve root; disc protrusion at L2-L3
resulting in right neuroforaminal narrowing and bulging of the
disc at the left neuroforamen at L3-L4 resulting in left
neuroforaminal narrowing; as well as other injuries to her person
for which Plaintiff has sought treatment or which have not yet
been discovered[.]
Complaint, 2/23/2018, at 4 ¶ 14.a. In its motion for summary judgment,
Appellee does not challenge the element of negligence that Appellant
incurred actual damage. See Kovacevich v. Regional Produce
Cooperative Corp., 172 A.3d 80, 85 (Pa. Super. 2017).
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[Appellee] had actual or constructive notice of the alleged dangerous
condition.” Appellant’s Motion for Summary Judgment, 11/8/2018, at 2
(unnecessary capitalization omitted).
On December 10, 2018, Appellant filed an answer thereto, in which
she presented the following facts in support of her argument that Appellee
had notice of the hazardous condition that caused her slip and fall:
30. . . . The area of moisture and grape remnants was spread
across at least four tiles. Deposition Transcript of
Anna Collins,[ ] Exhibit “B,” [at] 15 . . .
2
31. . . . [Appellee] was aware that grapes, which caused
[Appellant]’s fall, are packaged in bags that are susceptible to
opening and having their contents fall to the floor; that grapes
did fall upon the floors as a result; and that this present[ed a]
falling hazard for customers. Deposition Transcript of [General
Manager] Greg Martin, Exhibit “C,” [at] 23[-]25[3] . . .
Deposition Transcript of Anna Collins, Exhibit “B,” [at] 11[4] . . .
____________________________________________
2 Collins was an employee of Appellee, who cleaned up the spill immediately
after Appellant’s fall. The notes of testimony from her deposition were
attached to Appellant’s Answer to Appellee’s Motion for Summary Judgment
as Exhibit B. All exhibits referenced hereinafter are cited according to the
label used when they were attached to Appellant’s Answer to Appellee’s
Motion for Summary Judgment.
3 Martin’s deposition included the following exchange:
[Q. H]ow are the green grapes packaged, to your knowledge,
at that time?
A. They’re usually packed, okay, in like a cellophane – like
cellophane plastic bag that had like little holes, okay, through
them.
Q. And it was routinely that those bags are open; or they
come open easily, correct?
(Footnote Continued Next Page)
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33. . . . [Appellant] was not using a cart in the store. Deposition
Transcript of [Appellant], Exhibit “A,” [at] 50 . . . The grapes
were smashed and separate, “kind of splattered everywhere,”
and there were cart tracks evident in the grape liquid on the
tiles. Deposition Transcript of Anna Collins, Exhibit “B,” [at]
13[]-14 . . . Anna Collins went to go clean up the spill
immediately after [Appellant]’s fall and no other customers were
present in the aisle. Id. [at 12, 20. Appellee] had in place no
written policies or procedures for checking the produce section,
or any section for debris or hazards. Deposition Transcript of
Greg Martin, Exhibit “C,” [at] 18 . . . ; Deposition Transcript of
Noah Match, Exhibit “D,” [at] 16 . . . [Appellee] maintained
absolutely no written or other record of any floor maintenance at
the store. Deposition Transcript of Noah Match, Exhibit “D,” [at]
17[-]18 . . . [Appellee]’s sole procedure for addressing floor
spills and hazards was simply for employees to clean up if they
saw anything. [Deposition Transcript of Noah Match, Exhibit
“D,” at 19-20 (there was “[n]ot a specific person” “charged on
that day with going around and checking the floors for debris”).]
...
36. . . . Collins also testified that . . . she never received any
floor maintenance or safety training by [Appellee] of any kind.
Deposition Transcript of Anna Collins, Exhibit “B,” [at] 17 . . .
41. . . . Match and his supervisor, General Manager Greg Martin,
testified that [Appellee] conducted no floor maintenance or
safety training for employees. Deposition Transcript of
Noah March, Exhibit “D,” [at] 22[;] Deposition Transcript of
Greg Martin, Exhibit “C,” [at] 23[.]
A. Yep, yeah. . . .
Q. And is it fair to say that those things [in the produce aisle]
are more apt to separate from their display area or their
packaging than say other parts of the store?
A. Yes.
Deposition Transcript of Greg Martin, Exhibit “C,” at 24.
4 Collins’s deposition included the following exchange:
(Footnote Continued Next Page)
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Appellant’s Answer to Appellee’s Motion for Summary Judgment,
12/10/2018, at 2-4 ¶¶ 30-31, 33, 36, 41. Appellant maintained that her
cause of action for negligence was viable pursuant to Sections 343 and 344
of the Restatement (Second) of Torts.5 Appellant’s Brief in Opposition to
Appellees’ Motion for Summary Judgment, 1/17/2019, at 9, 13.
On June 4, 2019, the trial court entered an order granting the motion
for summary judgment on the basis that Appellant “did not know how the
grape or grape liquid got to the floor” and failed to establish that Appellee
had actual or constructive notice of the condition. Trial Court Opinion, filed
____________________________________________
Q. Did you ever notice that produce would fall on the floor in
the produce section?
A. Yes. . . .
[Q.] And were you familiar with how the grapes were
packaged?
A. Yes. They were put in bags, and the bags were placed on
the shelves.
Q. Okay. And sometimes those bags would pop open, right?
A. Yes.
Q. And grapes would fall down?
A. Yes.
Deposition Transcript of Anna Collins, Exhibit “B,” at 11.
5 Sections 343 and 344 of the Restatement (Second) of Torts are quoted in
their entirety below.
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June 4, 2019, at 2-3. On June 26, 2019, Appellant filed this timely direct
appeal.6
Appellant presents the following issue for our review:
Whether the trial court erred in finding that Appellee is entitled
to summary judgment where the record, when viewed most
favorably to Appellant, supports a finding that Appellee had
notice of the condition that caused Appellant’s fall and where the
trial court erred in failing to consider and properly apply material
facts of record, including the testimony of Appellant’s employees
concerning the nature of the spill, lack of floor maintenance
policy and inordinate occurrence of spills in the area of
Appellant’s fall?
Appellant’s Brief at 5.
Entry of summary judgment is governed by Rule 1035.2 of the Rules
of Civil Procedure:
After the relevant pleadings are closed, but within such time as
not to unreasonably delay trial, any party may move for
summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact
as to a necessary element of the cause of action or
defense which could be established by additional discovery
or expert report, or
(2) if, after the completion of discovery relevant to the
motion, including the production of expert reports, an
adverse party who will bear the burden of proof at trial has
failed to produce evidence of facts essential to the cause of
action or defense which in a jury trial would require the
issues to be submitted to a jury.
____________________________________________
6On July 22, 2019, Appellant filed her statement of errors complained of on
appeal. Two days later, the trial court entered an order stating that the
opinion accompanying its order of June 4, 2019, would serve as its opinion
pursuant to Pa.R.A.P. 1925(a).
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Pa.R.C.P. 1035.2.
Our standard of review of an appeal from an order
granting summary judgment is well settled: Summary
judgment may be granted only in the clearest of cases
where the record shows that there are no genuine issues
of material fact and also demonstrates that the moving
party is entitled to judgment as a matter of law. Whether
there is a genuine issue of material fact is a question of
law, and therefore our standard of review is de novo and
our scope of review is plenary. When reviewing a grant of
summary judgment, we must examine the record in a light
most favorable to the non-moving party.
Newell v. Montana West, Inc., 154 A.3d 819, 821–22 (Pa.
Super. 2017) (citations and internal quotation marks omitted).
Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96, 100 (Pa. Super.
2017).
To hold a defendant liable for negligence, the plaintiff must
prove that: (1) the defendant had a legally recognized duty to
conform to a standard of care; (2) the defendant breached that
duty; (3) the defendant’s conduct caused the resulting injury;
and (4) the plaintiff incurred actual damage. Newell v.
Montana West, Inc., 154 A.3d 819, 822 (Pa. Super. 2017).
...
Section 343 [of the Restatement (Second) of Torts] provides:
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 of harm 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
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(c) fails to exercise reasonable care to protect them
against the danger.
Comment a to Section 343 states that it “should be read
together with” Section 343A, which provides:
(1) A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or condition
on the land whose danger is known or obvious to them,
unless the possessor should anticipate the harm despite
such knowledge or obviousness.
(2) In determining whether the possessor should anticipate
harm from a known or obvious danger, the fact that the
invitee is entitled to make use of public land, or of the
facilities of a public utility, is a factor of importance
indicating that the harm should be anticipated.
Section 344 provides:
A possessor of land who holds it open to the public for
entry for his business purposes is subject to liability to
members of the public while they are upon the land for
such a purpose, for physical harm caused by the
accidental, negligent, or intentionally harmful acts of third
persons or animals, and by the failure of the possessor to
exercise reasonable care to
(a) discover that such acts are being done or are
likely to be done, or
(b) give a warning adequate to enable the visitors to
avoid the harm, or otherwise to protect them against
it.
Kovacevich v. Regional Produce Cooperative Corp., 172 A.3d 80, 85,
90-91 (Pa. Super. 2017).
In the current action, as Appellant was invited to enter and to remain
at Appellee’s premises for the purpose of doing business with the market,
she was a business invitee and thus had a special relationship with Appellee.
See Reason, 169 A.3d at 102 (“As Reason was invited to enter and to
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remain at Kathryn's Korner for the purpose of doing business with the thrift
shop, she was a business invitee and thus had a special relationship with
Kathryn’s Korner.”).
Our next question therefore is whether Appellee breached its duty to
conform to a standard of care. Kovacevich, 172 A.3d at 85.7
“The mere happening of an accident does not charge a defendant with
liability; res ipsa loquitur has no application. It was for plaintiff to prove
some specific default or, at least, existing conditions which raised an
inference of negligence as an indispensable basis of recovery.” Reay v.
Montgomery Ward & Co., 35 A.2d 558, 558 (Pa. Super. 1944). In order
to demonstrate that a defendant breached its duty to conform to a standard
of care --
a store must have notice of the harmful condition. In
determining whether this element is met, the following principles
apply:
[I]f the harmful transitory condition is traceable to the possessor
or his agent’s acts, (that is, a condition created by the possessor
or those under his authority), then the plaintiff need not prove
any notice in order to hold the possessor accountable for the
resulting harm. In a related context, where the condition is one
which the owner knows has frequently recurred, the jury may
properly find that the owner had actual notice of the condition,
thereby obviating additional proof by the invitee that the owner
____________________________________________
7Appellee motioned for summary judgment and the trial court granted said
motion exclusively on this element of negligence. Appellant’s Motion for
Summary Judgment, 11/8/2018, at 2; Trial Court Opinion, filed June 4,
2019, at 2-3. Hence, we need not address the remaining elements of
negligence. See Kovacevich, 172 A.3d at 85.
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had constructive notice of it. Where, however, the evidence
indicates that the transitory condition is traceable to persons
other than those for whom the owner is, strictly speaking,
ordinarily accountable, the jury may not consider the owner’s
ultimate liability in the absence of other evidence which tends to
prove that the owner had actual notice of the condition or that
the condition existed for such a length of time that in the
exercise of reasonable care the owner should have known of it.
Myers v. Penn Traffic Co., 606 A.2d 926, 929 (Pa. Super. 1992) (en banc)
(citation omitted) (some formatting).
Preliminarily, we note that, in the current action, there is no evidence
that Appellee’s employees or anybody associated with Appellee dropped the
grapes or liquid or were otherwise responsible for the presence of the
transitory dangerous condition. See id. There is also no evidence that they
had been told about the particular fallen grape(s) or liquid at issue prior to
Appellant’s slip and fall. See id.
Accordingly, we must determine whether there was any evidence to
create a genuine issue of material fact as to whether: the condition was one
which Appellee knew had frequently recurred and Appellee failed to exercise
reasonable care; or the condition existed for any period of time prior to
Appellant’s fall so as to impute that Appellee had constructive notice of its
existence. See Pa.R.C.P. 1035.2; Myers, 606 A.2d at 929.
We first consider whether there is a genuine issue of material fact as
to whether Appellant can establish that such spills were a recurring
occurrence; if so, Appellant must also present evidence that Appellee had
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not exercised due care to keep the aisle clean. In Markman v. Fred P. Bell
Stores Co., 132 A. 178, 180 (Pa. 1926), our Supreme Court stated:
The mere presence of such [vegetable] refuse . . . does not in
itself show negligence, for this condition may temporarily arise in
any store of this character, though the proprietor has exercised
due care; and, if it appears that proper efforts are made to keep
clean the passageways so they may be safely traversed, he is
not to be held responsible if some one accidently slips and falls.
Where, however, it is disclosed, as here, that the dangerous
condition, arising from the same cause, was not a mere chance
occurrence, but so often repeated as to call for frequent notices
to the owner, . . . and the same situation was shown to have
existed when the customer was hurt, we cannot say the jury was
not justified in finding defendant failed in his legal duty.
The Supreme Court repeated this principle in Morris v. Atlantic & Pacific
Tea Co., 121 A.2d 135, 138 (Pa. 1956):
With th[e] prescience of inevitable pedestrian danger in the area
under the defendant’s supervision and control, it was a question
of fact for the jury whether the defendant here did anything, or
enough, in an endeavor to prevent accidents which, in the very
sequence of inevitable phenomena, could easily occur.
This Court has also noted: “If the condition is one which the owner knows
has frequently recurred, then actual notice of the condition may properly be
found.” Borsa v. Great Atlantic & Pacific Tea Co., 215 A.2d 289, 292
(Pa. Super. 1965).
In the instant appeal, both Appellee’s General Manager Greg Martin
and its employee, Anna Collins, testified at their respective depositions, that
bags of grapes would “routinely” come open and their contents would spill to
the floor, causing a falling hazard for customers. Deposition Transcript of
Greg Martin, Exhibit “C,” at 23-25; Deposition Transcript of Anna Collins,
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Exhibit “B,” at 11. Martin additionally testified that produce, in general, was
“more apt to separate” from its “display area” or “packaging” than other
products found in the store, and Collins agreed that “produce would fall on
the floor in the produce section[.]” Deposition Transcript of Greg Martin,
Exhibit “C,” at 24; Deposition Transcript of Anna Collins, Exhibit “B,” at 11.
Ergo, assuming the jury were to find Martin’s and Collins’s testimony
to be credible, it could conclude that the dangerous condition at issue in the
instant case – grapes and their juice on the floor of the produce aisle – was
one that Appellee knew frequently recurred; if so, actual notice of the
condition may properly be found. Borsa, 215 A.2d at 292.
Thus, the next question must be whether Appellee’s “conduct or failure
to act meets the standard of reasonable care and diligence[,]” which “is
normally a matter for the jury to determine unless the evidence clearly
establishes as a matter of law that [it] is not chargeable with fault.” Blasi
v. Bonnert, 142 A.2d 752, 755 (Pa. Super. 1958); see also Greco v. 7-Up
Bottling Co. of Pittsburgh, 165 A.2d 5, 10 (Pa. 1960) (whether
defendant’s “conduct or failure to inspect met the standard of reasonable
care and diligence was a matter for the jury”).
In the instant matter, Collins testified that she never received any floor
maintenance or safety training, and Martin and March corroborated that
none of Appellee’s employees received such training. Deposition Transcript
of Anna Collins, Exhibit “B,” at 17; Deposition Transcript of Greg Martin,
Exhibit “C,” at 23; Deposition Transcript of Noah March, Exhibit “D,” at 22.
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Martin and March also both testified that Appellee had no written policies or
procedures for checking the produce section or any aisle for debris or
hazards. Deposition Transcript of Greg Martin, Exhibit “C,” at 18; Deposition
Transcript of Noah Match, Exhibit “D,” at 16. Match further testified that
Appellee did not require its employees to keep a written record or any log of
floor maintenance at the store. Deposition Transcript of Noah Match, Exhibit
“D,” at 17-18. According to Match, Appellee’s sole procedure for addressing
floor spills and hazards was simply for employees to clean up if they saw
anything; there was no specific person charged with going around and
checking floors. Id. at 19-20.
Given this evidence, we find that there was a genuine issue of material
fact as to whether Appellee exercised reasonable care to discover and to
protect against the dangerous condition of fallen grapes and their juice, and
this genuine issue should have been submitted to the jury, as fact-finder.
See Pa.R.C.P. 1035.2; Kovacevich, 172 A.3d at 90-91.
We note that, in reaching the opposite conclusion, the trial court had
relied heavily upon Myers, 606 A.2d 926. Trial Court Opinion, filed June 4,
2019, at 2-4. However, Myers can be distinguished from the current action,
because, in Myers, the “appellant ha[d] presented no evidence that appellee
failed to exercise reasonable care.” 606 A.2d at 930. Similar to the current
appeal, the appellee in Myers owned a supermarket, and the appellant
slipped on a grape in the produce aisle. Id. at 927-28. Nevertheless, in
Myers, unlike in the current case, the market “had assigned two employees
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to watch over” the produce section, who had to “clean the entire time that
they are on duty[,]” and, accordingly, the appellant could not establish that
the appellee failed to exercise reasonable care and thus was negligent in
maintaining the produce aisle. Id. at 929-31.
Myers, id. at 930-31, relies heavily on Martino v. Great Atlantic &
Pacific Tea Company, 213 A.2d 608 (Pa. 1965). In Martino, as in the
current matter and in Myers, the plaintiff had slipped on a grape on the
floor of the defendant’s store. Id. at 609. Also like the instant action, the
plaintiff in Martino presented testimony that produce frequently fell to the
floor. Id. Nonetheless, contrary to the instant appeal, the store in Martino
had an employee who was required to keep the produce area, including the
floor, clear of debris. Id. at 610. The Supreme Court of Pennsylvania
concluded that the store’s actions did not “constitute[] negligence . . . , since
every reasonable effort was made to keep the passageway clean.” Id.
Consequently, Myers and its controlling case, Martino, can be differentiated
from the instant appeal.
For these reasons, if the evidence is viewed in the light most favorable
to Appellant as the non-moving party, there are genuine questions of
material fact as to whether the hazardous condition at issue was one that
has frequently recurred and whether Appellee had exercised reasonable care
to discover and to cure such transitory hazardous conditions. Kovacevich,
172 A.3d at 90-91; Reason, 169 A.3d at 100; Myers, 606 A.2d at 929.
These questions thereby should have been submitted to a jury, as fact-
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finder, and the trial court’s grant of summary judgment thus was improper.
Pa.R.C.P. 1035.2.
In the alternative, even assuming there were no genuine issues of
material fact as to whether grape spills or grape juice spills in general were a
recurring occurrence in Appellee’s produce aisle, there may still be genuine
issues of material fact as to how long this particular grape spill or grape juice
spill was on Appellee’s floor prior to Appellant’s fall. See Pa.R.C.P. 1035.2;
Myers, 606 A.2d at 929.
The question whether a landowner had constructive notice of a
dangerous condition and thus should have known of the defect,
i.e., the defect was apparent upon reasonable inspection, is a
question of fact. As such, it is a question for the jury, and may
be decided by the court only when reasonable minds could not
differ as to the conclusion.
Commonwealth of Pennsylvania, Department of Transportation v.
Patton, 686 A.2d 1302, 1305 (Pa. 1997); see also Alderwoods
(Pennsylvania), Inc. v. Duquesne Light Co., 106 A.3d 27, 41 (Pa. 2014)
(“[t]he question of constructive notice was a major issue in this case, and
there was substantial conflicting evidence on the issue”; “[i]t was therefore
not a question to be decided by the court”).
“The length of time required to fasten constructive notice of a
dangerous condition on the owner of premises open to the public fluctuates
according to the nature of the establishment and the need for inspection.”
Davanti v. Hummell, 185 A.2d 554, 555 (Pa. 1962).
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In Lanni v. Pennsylvania Railroad Co., 88 A.2d 887, 889 (Pa.
1952), the Supreme Court of Pennsylvania concluded that the absence of
any “other footprints” on a grease or oil spill on which plaintiff slipped
“indicate[d] that it was of recent origin[.]” In Mack v. Pittsburgh
Railways Co., 93 A. 618, 619 (Pa. 1915), another slip-and-fall, the
Pennsylvania Supreme Court likewise found that, although “[t]he length of
time that [grease] remained in the [train] car was not shown by direct
evidence, . . . the jury would have been warranted in finding that it had
remained there for some time,” because it “had footmarks in it, and had
been tramped over by other persons on the car, manifestly before the
plaintiff attempted to alight, as no person immediately preceded her to the
front door.”
A long line of federal court cases8 have extrapolated from our Supreme
Court’s reliance on footprints through a slick condition to determine
____________________________________________
8 “[A]lthough we are not bound by decisions from . . . courts in
other jurisdictions, we may use them for guidance to the degree
we find them useful, persuasive, and . . . not incompatible with
Pennsylvania law.” Ferraro v. Temple University, 185 A.3d
396, 404 (Pa. Super. 2018) (citing Newell v. Montana West,
Inc., 154 A.3d 819, 823 & n.6 (Pa. Super. 2017)), reargument
denied (June 27, 2018); see also [Commonwealth v.]
Manivannan, 186 A.3d [472,] 483 [(Pa. Super. 2018),] (“When
confronted with a question heretofore unaddressed by the courts
of this Commonwealth, we may turn to the courts of other
jurisdictions.”).
Farese v. Robinson, 2019 Pa. Super. 336, *23 (filed November 8, 2019).
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constructive notice thereof to include reliance on “tracking” through the
condition – including shopping cart tracks – in order to show constructive
notice of the condition. Craig v. Franklin Mills Associates, L.P., 555 F.
Supp. 2d 547, 552 (E.D. Pa. 2008) (presence or absence of “footprints or
cart tracks” through puddle can be considered to show constructive notice of
condition); Watson v. Boston Market Corp., No. CV 17-5648, 2019 WL
1359739 at *3 (E.D. Pa. Mar. 26, 2019) (memorandum) (“[e]vidence
demonstrating that a substance has existed on the floor for some significant
period of time includes footprints or tracking through the substance”);
Rodgers v. Supervalu, Inc., No. CV 16-3641, 2017 WL 895590 at *4 (E.D.
Pa. March 6, 2017) (memorandum) (“evidence that the puddle was recent”
includes testimony that “it was clear and there were no footprints or trails
from shopping carts through it”), aff’d sub nom. Rodgers v. Moran Foods
LLC, 720 F. App’x 676 (3d Cir. 2018); Katz v. Genuardi’s Family
Markets, Inc., No. CIV.A. 09-645, 2010 WL 2720747 at *3 (E.D. Pa. July 8,
2010) (memorandum opinion) (“evidence of tracking in the spilled
substance, for instance, is evidence of temporal duration and can support a
finding of constructive notice, while the absence of tracking from the area of
a spill is evidence that the spill is one of recent origin”); Hower v. Wal-
Mart Stores, Inc., No. CIV.A.08-1736, 2009 WL 1688474 at *7 (E.D. Pa.
June 16, 2009) (memorandum) (“the spill here contained no footprints or
shopping cart tracks to suggest how long it was on the floor before the
accident”; “[u]nder these circumstances, a reasonable jury could not
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conclude that Defendant had constructive notice of the spill”); Evans v.
Canteen Corp., No. CIV. A. 94-2381, 1995 WL 355231 at *2 (E.D. Pa. June
13, 1995) (memorandum and order) (citing Gales v. United States, 617 F.
Supp. 42, 44 (W.D. Pa. 1985); Lanni, 88 A.2d 887) (“[a]n important factor
in actions where the plaintiff slips on a spilled substance is whether there are
footprints or ‘tracking’ through and around the area of spill. Tracking
indicates the spilled substance has been present long enough to give the
proprietor constructive knowledge of its presence.”).
In the current action, although there was no mention of footprints
through the spill, there was evidence of shopping cart tracks. Deposition
Transcript of Anna Collins, Exhibit “B,” at 13-14. Appellant had not been
using a shopping cart when she fell, so the tracks could not have been
caused by her. Deposition Transcript of Appellant, Exhibit “A,” at 50. No
other customers were present in the produce aisle at the time that Appellant
slipped and fell, Transcript of Anna Collins, Exhibit “B,” at 12, 20; as in
Mack, 93 A. at 619, a jury could infer from the fact that the spill was
tracked even though no one had immediately preceded the plaintiff that the
spilled substance had remained there for some time. Consequently, a jury,
if it found Appellant’s and Collins’s testimony to be credible, could infer from
this evidence of tracking not caused by Appellant that the spilled substance
had been present long enough to give Appellee constructive notice of its
presence. See Lanni, 88 A.2d at 889; Mack, 93 A. at 619; Craig, 555 F.
Supp. 2d at 552; Watson, No. CV 17-5648, 2019 WL 1359739 at *3;
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J-S65031-19
Rodgers, No. CV 16-3641, 2017 WL 895590 at *4; Katz, No. CIV.A. 09-
645, 2010 WL 2720747 at *3; Hower, No. CIV.A.08-1736, 2009 WL
1688474 at *7; Evans, No. CIV. A. 94-2381, 1995 WL 355231 at *2.
Accordingly, whether the grape or juice existed on Appellee’s floor for
any period of time prior to Appellant’s fall so as to impute that Appellee had
constructive notice of its existence is a fact essential to the cause of action
which in a jury trial would require the issue to be submitted to the jury. See
Pa.R.C.P. 1035.2.
For the reasons set forth above, we reverse the trial court’s order
granting summary judgment and reinstate Appellant’s cause of action for
negligence. We remand for further proceedings consistent with this
decision.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2019
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