GRAHAM v. MORAN FOODS, INC.

Filing 27

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 5/18/2012. 5/18/2012 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHEILA GRAHAM,
Plaintiff,
v.
MORAN FOODS, INC.,
Defendant.

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CIVIL ACTION
NO. 11-239

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

MAY 18, 2012

Sheila Graham (“Plaintiff”) brings this premisesliability action after she fell at a Save-A-Lot store operated
by Moran Foods, Inc. (“Defendant”). Defendant moved for summary
judgment. For the reasons that follow, the Court will grant the
motion because, as a matter of law, Defendant did not owe
Plaintiff a duty to prevent harm from an obvious condition.

I.

BACKGROUND1
On August 15, 2009, at approximately 10:39 a.m.,

Plaintiff tripped over a pallet and fell while grocery shopping
with her family at a Save-A-Lot store in Philadelphia,
Pennsylvania. Compl. ¶ 6; Graham Dep. 18:6-7, July 11, 2011;
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The Court views the facts in the light most favorable
to the Plaintiff and draws all reasonable inferences in
Plaintiff’s favor.

Howard Dep. 40:7-9, May 25, 2011. Plaintiff walked toward a
freezer, while pushing a shopping cart, to view items that were
on sale. Graham Dep. 21:21-24, 23:2-4. Plaintiff heard the voice
of another customer behind her say, “excuse me.” Id. at 22:1-5,
24:21-24. Plaintiff glanced behind her and started to step
backwards with her shopping cart. Id. at 24:23-24, 25:1-13.
Before stepping backwards, Plaintiff did not look to see if
there were any obstructions in her way. Id. at 25:12-16.
Plaintiff took about four or five steps backwards and tripped on
a pallet on the floor. Id. at 22:11-16, 24:21-24, 26:5-8, 27:15. Plaintiff fell flat back onto the pallet and food items on
the pallet. Id. at 29:4-30:22.
Plaintiff walked past the pallet on her way to the
freezer but did not see the pallet before falling.2 Id. at 22:2024, 25:14-16. The pallet was stacked with cases of canned food
at different heights and spaced out over the pallet. Id. at
22:12-16. The stacks ranged from about two to five cases high.
Id. Defendant used the pallets either to display merchandise or
to load and unload merchandise. Howard Dep. 11:13-12:4. The
store manager on duty during the incident, Brittney Howard,
viewed a photograph of the pallet in question and testified

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Plaintiff testified that she “wasn’t paying [the
pallet] no attention. [She] saw a sale and that’s straight where
[she] was going.” Graham Dep. 22:23-24:1.
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that, based on the arrangement of the merchandise on the pallet,
an employee was using the pallet to stock merchandise on the
shelves. Id. at 12:11-13; id. Ex. 2; Mot. for Summ. J. Ex. B.
Furthermore, every two hours, employees at the store perform
“sweeps” to check for hazardous conditions throughout the store.
Howard Dep. 34:18-4. The last sweep was performed at 10:00 a.m.,
approximately thirty-nine minutes before Plaintiff’s fall. Id.
at 40:7-12; id. Ex. 3.
Following the incident, Plaintiff spoke to Howard.
Graham Dep. 32:15-34:19. Plaintiff and Howard signed a customer
statement form following the incident. Id. at 33:7-8; Howard
Dep. 21:3-11. Plaintiff experienced pain in her ankle and leg
shortly after the incident, and experienced worsening pain and
injury, particularly in her lower back, following her fall and
continuing to the present. Graham Dep. 32:19, 36:8-94:14.

II.

PROCEDURAL HISTORY
On January 13, 2011, Plaintiff filed a complaint

against Defendant3 alleging one count of negligence and seeking
damages in excess of $150,000. Compl. ¶¶ 7-12. On February 2,
2011, Defendant answered. Answer 1.
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The Complaint originally named “Supervalu, Inc. t/a
Save-A-Lot” as a defendant. The parties later stipulated, and
the Court approved, that the proper defendant is “Moran Foods,
Inc. d/b/a Save-A-Lot, Ltd.” Order 1, Mar. 4, 2011.
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Following discovery, Defendant moved for summary
judgment. Mot. for Summ. J. 1. Plaintiff responded. Pl.’s Resp.
1. And Defendant replied. Def.’s Reply 1. The matter is now ripe
for disposition.4

III. LEGAL STANDARD
Summary judgment is appropriate if there are no
genuine disputes of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
“A motion for summary judgment will not be defeated by ‘the mere
existence’ of some disputed facts, but will be denied when there
is a genuine issue of material fact.” Am. Eagle Outfitters v.
Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A
fact is “material” if proof of its existence or nonexistence
might affect the outcome of the litigation, and a dispute is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248.
The Court will view the facts in the light most
favorable to the nonmoving party. “After making all reasonable
inferences in the nonmoving party’s favor, there is a genuine
4

The Court has diversity jurisdiction over Plaintiff’s
claim. See 18 U.S.C. § 1332(a)(1) (2006).
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issue of material fact if a reasonable jury could find for the
nonmoving party.” Pignataro v. Port Auth. of N.Y. & N.J., 593
F.3d 265, 268 (3d Cir. 2010). While the moving party bears the
initial burden of showing the absence of a genuine issue of
material fact, meeting this obligation shifts the burden to the
nonmoving party, who must “set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 250.

IV.

DISCUSSION
Defendant moves for summary judgment on Plaintiff’s

negligence claim because the pallet created an open and obvious
condition for which Defendant did not owe Plaintiff a duty. The
standard of care a possessor of land owes in a premisesliability action depends on whether the entrant is a trespasser,
licensee, or invitee. E.g., Carrender v. Fitterer, 469 A.2d 120,
123 (Pa. 1983). The parties do not dispute that Plaintiff was an
invitee. See Campisi v. Acme Mkts., 915 A.2d 117, 119 (Pa.
Super. Ct. 2006) (grocery store customer treated as invitee);
see also Wooley v. Great Atl. & Pac. Tea Co., 180 F. Supp. 529,
531 (W.D. Pa. 1960) (“The owner of a self-service [grocery]
store has a duty to stack 10-ounce cans of soup in such places
and in such manner that they will not create an unreasonable
risk of harm to business invitees and their children.”). As

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such, Defendant owed Plaintiff the highest duty of care owed to
any entrant. See, e.g., Carrender, 469 A.2d at 123-24.
A possessor of land owes a general duty to protect an
invitee from foreseeable harm. See id. at 123 (citing
Restatement (Second) of Torts §§ 341A, 343 & 343A (1965)). The
possessor owes a duty to invitees to protect against known
dangers and also those dangers that the possessor may discover
through the exercise of reasonable care.5 Id. But a possessor of
land is not liable to 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.’” Id. (quoting
Restatement (Second) of Torts § 343A).

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Specifically, a possessor of land is liable for harm
caused to an invitee by known or discoverable conditions only if
the possessor:
“(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 invitee,
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.”
Carrender, 469 A.2d at 123 (quoting Restatement (Second) of
Torts § 343).
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A danger is obvious when “‘both the condition and the
risk are apparent to and would be recognized by a reasonable
man, in the position of the visitor, exercising normal
perception, intelligence, and judgment.’” Id. at 123-24 (quoting
Restatement (Second) of Torts § 343A cmt. b). And a danger is
known when it is “‘known to exist’” and “‘recognized that it is
dangerous and the probability and gravity of the threatened harm
[is] appreciated.’” Id. at 124 (quoting Restatement (Second) of
Torts § 343A cmt. b). “Although the question of whether a danger
was known or obvious is usually a question of fact for the jury,
the question may be decided by the court where reasonable minds
could not differ as to the conclusion.” Id. (citing Restatement
(Second) of Torts § 328B cmts. c, d).
In Carrender, a patient of the defendant chiropractor
parked her vehicle next to another parked vehicle. Before
exiting her vehicle, the patient testified, she observed a
smooth sheet of ice covering the surface of the parking lot
between the vehicles. Despite the availability of other parking
spaces, the patient did not move her vehicle and chose instead
to traverse the slippery surface, successfully, to the
chiropractor’s entrance. On return to her vehicle after the
appointment, however, the patient slipped on the ice and fell
while reaching into her pocketbook for keys. The patient’s
testimony and lack of evidence that the patch of ice would go
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unnoticed by the patient or any other patients established that
the icy condition was known and obvious as a matter of law.
Carrender, 469 A.2d at 123-24.
And in Campisi, a grocery store customer tripped over
a blind employee’s guide cane as the customer rounded the corner
of a parallel aisle to the aisle the employee navigated. The
Pennsylvania Superior Court affirmed entry of judgment
notwithstanding the verdict in favor of the store because the
store did not owe a duty to warn of foreseeable risks posed by a
disabled employee. Campisi, 915 A.2d at 118, 121. With regard to
a grocery store customer’s duty of care, the court remarked:
A grocery store, with its aisles bordered by high
shelves stacked with merchandise, naturally presents
the danger of a large blind spot as customers exit an
aisle. Whether the hazard is a shopping cart that
suddenly juts out, a customer’s foot, or someone’s
cane, customers must constantly be on alert for
obstacles when exiting a grocery store aisle. The
likelihood of danger further increases when a customer
rounds the corner of an aisle directly toward the end
of the adjacent aisle, as [the customer] did here.
Thus, we would consider a customer’s duty of ordinary
care to include looking for obstacles before exiting
an aisle. See Restatement (Second) of Torts § 343A
(property owners have no duty to protect invitees from
known or obvious dangers avoidable by exercise of
ordinary care).
Id. at 121 (emphasis in original). Because there is a reasonable
likelihood that a grocery store customer could encounter a
disabled person while shopping, the hazard created by the blind

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employee’s guide cane was a known or obvious condition. Id. at
121.
Here, reasonable minds could not differ in the
conclusion that the pallet was a known or obvious condition.
Plaintiff walked by the pallet before she tripped over it in an
attempt to back out of the way of another customer. Although
Plaintiff did not have the subjective knowledge of the dangerous
condition prior to her fall as did the patient in Carrender, a
reasonable person in Plaintiff’s position, exercising normal
perception, would have observed the pallet and merchandise and
the potential tripping hazard they created. Furthermore,
Plaintiff testified that she was not paying attention to the
pallets and did not look to the floor space behind her before
taking steps backwards. The Pennsylvania Superior Court in
Campisi noted that grocery store customers must constantly be on
alert when exiting a grocery store aisle because of the blind
spots the aisle and stacked merchandise create. In a similar
respect, grocery store customers should exercise similar or,
perhaps, more caution, when taking steps backwards with a
shopping cart.
Plaintiff contends that she was distracted from the
pallet because of sale signs in the store.6 This argument is

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Plaintiff proffers an expert report finding that the
pallet created a dangerous condition and that Defendant should
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unavailing. Even if sale signs and displays distracted Plaintiff
from the pallet when she passed it on her way to the freezer,
Plaintiff would have seen the pallet had she looked behind her
to ensure that the path was clear to take steps backwards. “It
is hornbook law in Pennsylvania that a person must look where he
is going.” Villano v. Sec. Sav. Ass’n, 407 A.2d 440, 441 (Pa.
Super. Ct. 1979). Moreover, sale signs and displays do not
alleviate Plaintiff’s obligation to watch for obstacles and
hazards. See Campisi, 915 A.2d at 121 (“[J]ust as drivers are
not relieved of responsibility for accidents if they are
distracted by billboards, customers are not relieved of the
responsibility of watching for obstacles while they walk, even
if they are distracted by sales displays.”).
In Rogers v. Max Azen, Inc., 16 A.2d 529 (Pa. 1940), a
customer shopping at the defendant fur store tripped over the
base of a staircase banister and fell. The customer testified
that, although it was plainly visible, she never looked down at
the base before she fell and that she first saw the base on
which she tripped after she fell. The Pennsylvania Supreme Court
characterized the customer’s testimony as follows:
Disclosing, as it does, thoughtless inattention to her
surroundings and a complete failure to be duly
observant of where she was stepping, this testimony
have foreseen that sale and merchandise displays would distract
a customer in Plaintiff’s position. See Pl.’s Resp. Ex. C.
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leaves no room for speculation as to the sole cause of
[the customer’s] injuries. It brings the case within
the rule that where one is injured as the result of a
failure on his part to observe and avoid an obvious
condition which ordinary care for his own safety would
have disclosed, he will not be heard to complain.
Rogers, 16 A.2d at 531. The court noted that, although in
certain circumstances customers are required to pay less
attention to the placement of their feet when distracted by
goods on display,7 such circumstances were not present because
the customer’s testimony indicated that she did not look where
she placed her foot while climbing the stairs. Id. Thus, Rogers
teaches that while the existence of potentially distracting
store displays sometimes enters the inquiry of whether a hazard
is obvious, it does not excuse a customer’s complete failure to
look where she is going when placing her feet. This teaching is
especially poignant where, as here, a customer takes steps
backwards without looking.

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See, e.g., Zito v. Merit Outlet Stores, 647 A.2d 573,
575 (Pa. Super. Ct. 1994) (holding that jury could find store
owner liable in slip-and-fall case when customer presented
evidence that “defendants created an environment which was
designed to attract shoppers [sic] attention to various
displays”); Lissner v. Wal-Mart Stores E., L.P., No. 07-414,
2009 WL 499462, at *3 (W.D. Pa. Feb. 27, 2009) (denying summary
judgment because reasonable minds could differ as to obviousness
of hazard on floor of store based on size and location of hazard
and expert testimony that condition is beyond reasonable
person’s gaze where surrounding environment designed to divert
attention toward merchandise).
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Like the customer in Rogers, who testified that she
did not look at the base of the banister before placing her
foot, Plaintiff, here, testified that she was not paying
attention to the pallet when she walked by it on her way to the
freezer. Plaintiff now asserts the displays distracted her
attention from the floor. But, under the facts of record in this
case, Plaintiff is not relieved from her burden of exercising
ordinary care because she failed to observe and avoid an obvious
condition by not looking behind her before taking steps
backwards. Whether she was distracted by the displays on her way
to the freezer is immaterial to Plaintiff’s failure to look
behind her before taking steps backwards.
As a matter of law, the pallet was an obvious
condition that Plaintiff failed to avoid by exercising ordinary
care. Therefore, Defendant did not owe Plaintiff a duty under
the facts of this case. See Carrender, 469 A.2d at 124.

V.

CONCLUSION
For the foregoing reasons, the Court will grant

Defendant’s Motion for Summary Judgment. An appropriate order
will follow.

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