Johnson, M. v. Gabriel Brothers, Inc. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MONIQUE JOHNSON IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GABRIEL BROTHERS, INC.
Appellee No. 476 MDA 2016
Appeal from the Judgment Entered March 2, 2016
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2015-CV-00692-CV
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 20, 2017
Monique Johnson appeals from the judgment entered on March 2,
2016 in the Dauphin County Court of Common Pleas in favor of Gabriel
Brothers, Inc. (“Gabriel”). We affirm.
This matter arises out of a slip-and-fall that occurred on October 18,
2012, at a store owned by Gabriel in Harrisburg. Specifically, Johnson
alleged that she “tripped and fell after stepping on a clothes hanger” that
was on the floor. Memorandum and Order (Summary Judgment), 3/2/16, at
1 (unpaginated) (“Trial Ct. Op.”). On January 29, 2015, Johnson filed a
complaint against Gabriel sounding in negligence. On March 5, 2015,
Gabriel filed an answer with new matter. On March 24, 2015, Johnson
replied to Gabriel’s new matter. Thereafter, on August 25, 2015, Gabriel
filed a motion for summary judgment. On September 24, 2015, Johnson
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responded to Gabriel’s motion, and on October 19, 2015, Gabriel filed a
reply. On March 2, 2016, the trial court entered a memorandum and order
granting Gabriel’s motion, entering judgment in Gabriel’s favor, and
dismissing any and all claims against Gabriel with prejudice. Johnson timely
filed a notice of appeal.
Johnson raises the following issue on appeal:
1. Whether the trial court abused its discretion and
otherwise committed an error of law when it improperly
granted [Gabriel]’s Motion for Summary Judgment when a
genuine issue of material fact exists as to [Gabriel]’s
negligent maintenance of its store property and whether
[Gabriel] had actual or constructive notice of the self-
created dangerous condition?
Johnson’s Br. at 5.
It is well-established that “summary judgment is appropriate only in
those cases where the record clearly demonstrates that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a
matter of law.” Truax v. Roulhac, 126 A.3d 991, 996 (Pa.Super.) (quoting
Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa.
2002)), app. denied, 129 A.3d 1244 (Pa. 2015). The moving party bears
the burden of proving that no genuine issue of material fact exists .
Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 159 (Pa. 2009). “[T]he
trial court must take all facts of record and reasonable inferences therefrom
in a light most favorable to the non-moving party. In so doing, the trial
court must resolve all doubts as to the existence of a genuine issue of
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material fact against the moving party.” Truax, 126 A.3d at 996 (internal
citation omitted).
We have explained our standard of review as follows:
[A]n appellate court may reverse a grant of summary
judgment if there has been an error of law or an abuse of
discretion. But the issue as to whether there are no
genuine issues as to any material fact presents a question
of law, and therefore, on that question our standard of
review is de novo. This means we need not defer to the
determinations made by the lower tribunals.
Id. (quoting Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 902–
03 (Pa. 2007)).
In a slip and fall case where, as here, the plaintiff is an invitee, she
must prove that the proprietor either had a hand in creating the harmful
condition or had actual or constructive notice of such condition. Moultrey
v. Great A & P Tea Co., 422 A.2d 593, 598 (Pa.Super. 1980). “[T]he mere
existence of a harmful condition in a public place of business, or the mere
happening of an accident due to such a condition is neither, in and of itself,
evidence of a breach of the proprietor’s duty of care to his invitees, nor
raises a presumption of negligence.” Zito v. Merit Outlet Stores, 647 A.2d
573, 575 (Pa.Super. 1994) (quoting Moultrey, 422 A.2d at 596). Where
the harmful condition is transitory and the evidence indicates that the
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
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condition existed for such a length of time that in the
exercise of reasonable care the owner should have known
of it.
Moultrey, 422 A.2d at 596. Furthermore, “[w]hat 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.” Neve v.
Insalaco’s, 771 A.2d 786, 791 (Pa.Super. 2001) (Rogers v. Horn &
Hardart Baking Co., 127 A.2d 762, 764 (Pa.Super. 1956)).
Here, Johnson argues that Gabriel had actual notice because it
“created the hazard” and otherwise had constructive notice because it
“would have known of the . . . condition if its inspection and maintenance
protocols were not substandard and negligent.” Johnson’s Br. at 18.
Johnson contends that Gabriel’s movement of merchandise around the store,
its knowledge that clothes hangers are commonly found on the floor, its lack
of adequate inspection training, policies, procedures, and documentation, a
history of slip-and-falls in its stores, and Gabriel’s failure to preserve video
footage create genuine issues of material fact as to Gabriel’s negligence and
actual or constructive notice.
We first examine whether there is a genuine issue of material fact that
Gabriel created the harmful condition. In Myers v. Penn Traffic Co., we
affirmed the grant of summary judgment in favor of the appellee
supermarket, where the appellant alleged, in part, that she slipped on a
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grape on the floor. 606 A.2d 926, 929 (Pa.Super. 1992). This Court
determined that “appellant . . . presented no evidence as to the cause of the
presence of the grape on the floor.” Id. at 931. Moreover, we concluded
that
negligence is not established by the fact that produce
frequently fell to the floor when employees filled the
produce cases. Furthermore, a lack of reasonable care is
not established merely because the employee working in
the produce department was on a break when appellant
fell. These facts do not lead to a reasonable inference that
appellee or its agents were negligent and that negligence
caused the grape to be on the floor. A jury would not
properly be able to reach a conclusion of negligence on
these facts as such a conclusion would be based on guess
or conjecture.
Id.Similarly here, that Gabriel employees move merchandise around the
store during store hours and that clothes hangers are commonly found on
the floor of the store do not lead to a reasonable inference that Gabriel was
negligent or that its or its employees’ negligence caused the hanger to be on
the floor. As in Myers, supra, “[a] jury would not properly be able to reach
a conclusion of negligence on these facts as such a conclusion would be
based on guess or conjecture.” Thus, we conclude that there is no genuine
issue of material fact as to whether Gabriel created the harmful condition.
In addition, because Johnson’s claim regarding Gabriel’s actual notice
depends on Gabriel having created the harmful condition, we conclude that
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there is no genuine issue of material fact that Gabriel did not have actual
notice of the condition.
We next examine whether there is a genuine issue of material fact
regarding Gabriel’s constructive notice of the clothes hanger on the floor.
First, Johnson contends that Gabriel would have had constructive
notice of the hanger if its “inspection and maintenance protocols were not
substandard and negligent.” Johnson’s Br. at 18. Johnson argues that
Gabriel failed to: properly train its employees for floor inspections; assign
specific employees to conduct floor inspections; set specific floor inspection
routes; set specific times for floor inspections; and keep logs or records of
floor inspections.
Gabriel’s corporate designee, Robin Virbickis, testified at her
deposition that floor inspections were “part of the manager on duty’s
program as they tour the store to monitor” the store’s conditions, that
managers switched on and off in three-hour shifts, that during their shifts,
managers completed “figure eights” throughout the building, and that asset
protection employees also helped inspect the floor as part of their daily tours
through the store. Virbickis Dep. at 67-68, 70, 72-73. In support of her
claim that Gabriel’s inspection policies were deficient, Johnson relies on
Virbickis’ testimony that floor inspections were not scheduled, were not
documented, did not have specifically defined routes, were not required to
be performed a set amount of times during a shift, and that Virbickis could
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not say how often floors were inspected. Johnson’s Br. at 9-11. Virbickis
further testified that there was no section in the training document for
managers dealing specifically with inspection of the floor for hazards. Id. at
11. In addition, Virbickis testified that she did not know if there was any
way to tell when the last floor inspection of the area in which Johnson fell
occurred, whether the last floor inspection would have been documented, or
who would know the answers to those questions. See id. at 80-81.
However, Gabriel’s policy was to conduct inspections, and Johnson did not
present sufficient evidence to create a genuine issue of material fact that
those inspections did not occur or were insufficient such that Gabriel would
otherwise have had constructive notice of the hanger.
Next, we examine whether there is a genuine issue of material fact
regarding the length of time the clothes hanger was on the floor before
Johnson’s fall. The trial court found:
According to [Johnson], she fell after slipping on a
“clear hanger”, which she never saw prior to her fall.
(Deposition of Monique Johnson at pp. 34-35). [Johnson]
was alone at the time, and has presented no witnesses or
any other evidence that would establish how long the
clothes hanger had been on the floor. (Id. at pp. 30-32).
Trial Ct. Op. at 3 (unpaginated). Thus, Johnson, by her own admission,
failed to demonstrate how much time elapsed between the origin of the
hazardous condition and her fall.
Johnson claims that Gabriel’s failure to preserve video footage of the
accident could support a future motion in limine based on spoliation.
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Presumably, Johnson believes that Gabriel’s failure to preserve video footage
could permit an adverse inference against Gabriel as to timing. Parr v.
Ford Motor Co., 109 A.3d 682, 701 (Pa.Super. 2014) (finding that
spoliation sanctions “arise out of the common sense observation that a party
who has notice that evidence is relevant to litigation and who proceeds to
destroy evidence is more likely to have been threatened by that evidence
than is a party in the same position who does not destroy the evidence” and
that one “remedy for the loss or destruction of evidence by the party
controlling it is to allow the jury to apply its common sense and draw an
‘adverse inference’ against that party”). Johnson’s counsel stated that he
never received copies of any surveillance footage. Virbickis Dep. at 109.
However, a review of Virbickis’s testimony – the sole evidence to support a
spoliation claim – reveals only that she did not know whether the accident
had been recorded. Id. at 107:3-8. This testimony does not prove that
Gabriel destroyed or otherwise failed to preserve video footage – it proves
only that Johnson did not receive video footage. Further, in her brief,
Johnson does not specifically allege that Gabriel failed to comply with
discovery requests for video footage, nor does the record contain a motion
to compel production of video footage.
Finally, in support of her claim, Johnson relies on a history of prior
slip-and-falls in Gabriel’s stores. However, while Virbickis testified that she
was aware of other slip-and-falls in the five years prior to the accident, she
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did not know how many occurred nor whether any had occurred as a result
of fallen clothes hangers. See Virbickis Dep. at 88-89. Johnson presented
no other evidence of a history of slip-and-falls to support a finding of
Gabriel’s constructive notice of the hanger.
Accordingly, we conclude that there is no genuine issue of material
fact regarding Gabriel’s constructive notice of the harmful condition.
Therefore, because no genuine issues of material fact exist as to
Gabriel’s actual or constructive notice, and Gabriel is entitled to judgment as
a matter of law, we conclude that the trial court properly granted summary
judgment in Gabriel’s favor.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2017
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