DANIELS v. SEARS et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 2/10/16. 2/10/16 ENTERED AND COPIES EMAILED.(rf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SEARS AND SEARS ROEBUCKS AND
FEBRUARY 10 , 2016
Bettie Daniels (“Plaintiff”) filed this negligence action after she sustained injuries in a slipand-fall at a store operated by Sears and Sears Roebuck and Company (“Defendant”). Presently
before the Court is Defendant’s Motion for Summary Judgment. (ECF No. 17.) For the following
reasons, the Motion will be granted.
Factual Background 1
On February 21, 2014, Plaintiff—who was then 75 years old—went to a Sears retail store in
Philadelphia, Pennsylvania to purchase several items of clothing. (Daniels Dep. 13-15, Def.’s SJ
Mot. Ex. A, ECF No. 17.) After shopping for thirty minutes, Plaintiff walked into a women’s fitting
room with three items, which she hung on a rack. (Id. at 15.) As Plaintiff was removing her own
clothes, she fell to the fitting room’s floor. (Id. at 20.) There were no witnesses. (Pl.’s SJ Resp. 10,
ECF No. 18.) Plaintiff injured her left arm, shoulder, and hip as a result. (Daniels Dep. 43.) At her
deposition, Plaintiff testified that she did not observe anything on the floor of the fitting room before
or after she fell. (Id. at 17.) Plaintiff did not look around the fitting room to discover whether
anything caused her to fall. (Id. at 28.) Immediately following the incident, Plaintiff reported what
We view of all of the facts and draw all reasonable inferences therefrom in the light
most favorable to Plaintiff, the non-moving party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848,
852 (3d Cir. 2006).
had occurred in the dressing room to several Sears employees. (Id. at 32-33.) Sears personnel then
went to see whether there was anything on the floor that she tripped on or slipped on. (Turner Dep.
at 24, Def.’s SJ Mot. Ex. C.) The employees did not observe anything on the fitting room floor. (Id.
at 31-32.) They then took photographs. (Id.) Plaintiff does not know what caused her fall. (Daniels
Dep. at 28.)
After speaking with Sears personnel, Plaintiff purchased the items she took into the fitting
room and left the store. (Id. at 37-38.) Plaintiff felt pain in her arm and sought medical attention
immediately after leaving the Sears store. (Id. at 38-40.) Plaintiff later developed hip and shoulder
pain. (Id. at 43-44.)
On August 4, 2015, Plaintiff filed a Complaint against Defendant in the Philadelphia County
Court of Common Pleas, alleging negligence. (Compl., Not. of Removal Ex. A, ECF No. 1.) On
August 25, 2015, Defendant removed the action to this Court. (Not. of Removal.) On
September 23, 2015, Defendant filed an Answer to the Complaint, asserting affirmative defenses.
(Answer, ECF No. 7.) An arbitration trial was scheduled for February 23, 2016. On January 18,
2016, Defendant filed the instant Motion for Summary Judgment. (Def.’s SJ Mot.) On January
27, 2016, Plaintiff filed a Response in opposition to Defendant’s Motion for Summary Judgment.
(Pl.’s SJ Resp.)
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” A dispute is “genuine” if there is a sufficient evidentiary basis on
which a reasonable jury could return a verdict for the non-moving party. Kaucher v. Cty. of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). “[A] factual dispute is material only if it might affect the outcome of the suit under
governing law.” Id. The court must view the evidence in the light most favorable to the nonmoving party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011). However, “unsupported
assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for
summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F. Supp. 2d 490, 493 (E.D.
Pa. 2010) (citing Williams v. Borough of W. Chester, 891 F.2d 458, 461 (3d Cir. 1989)).
Where the nonmoving party bears the burden of proof at trial, the moving party may
identify an absence of a genuine issue of material fact by showing the court that there is no
evidence in the record supporting the nonmoving party’s case. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir.
2004). If the moving party carries this initial burden, the nonmoving party must set forth specific
facts showing that there is a genuine issue for trial. The nonmoving party must go beyond the
pleadings and present evidence through affidavits, depositions, or admissions on file to show that
there is a genuine issue for trial. Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c) (“A
party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record.”); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986) (noting that the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the material facts”). A mere scintilla of
evidence in support of the non-moving party’s position will not suffice. Liberty Lobby, 477 U.S.
at 252. “Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation
omitted). This requirement upholds the “underlying purpose of summary judgment [which] is to
avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense.”
Walden v. Saint Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) (citing Goodman v.
Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)).
Plaintiff asserts a negligence claim based on premises liability. 2 Under Pennsylvania
law, “[t]he mere occurrence of an accident does not establish negligent conduct.” Martin v.
Evans, 711 A.2d 458, 502 (Pa. 1998) (citation omitted). Rather, in any case sounding in
negligence, a plaintiff must demonstrate: (1) the existence of a duty or obligation recognized by
law; (2) a breach of the duty; (3) causal connection between the breach of duty and the resulting
injury; and (4) actual loss or damage. Krentz v. Consol. Rail Corp., 910 A.2d 20, 27-28 (Pa.
2006) (citation omitted). The nature of the duty turns upon the relationship between the parties
at the time of the plaintiff’s injury. See Pittsburgh Nat’l Bank v. Perr, 637 A.2d 334, 336 (Pa.
Super. Ct. 1994). In premises-liability actions, the duty of care that a possessor of land owes to
one who enters upon the land “depends upon whether [the latter] is a trespasser, licensee, or
invitee.” Carrender v. Citterer, 469 A.2d 120, 123 (Pa. 1983) (citation omitted); see also
Guttridge v. AP Green Serv., Inc., 804 A.2d 643, 655 (Pa. Super. Ct. 2002). The parties agree
that Plaintiff was an invitee in Defendant’s store. (See Def.’s SJ Mot.; Pl.’s Memo. in Support of
SJ Resp. at 1, ECF No. 18.)
“It is well settled that a business owner owes a duty to an invitee ‘to maintain its premises
in a reasonably safe condition for the contemplated uses thereof and the purposes for which the
invitation was extended.’” David by Berkeley v. Pueblo Supermarket of St. Thomas, 740 F.2d
230, 236 (3d Cir. 1984) (quoting Morris v. Gimbel Bros., Inc., 394 F.2d 143, 145 (3d Cir. 1968)).
“[A] federal court must apply the substantive laws of its forum state in diversity
actions,” such as this one. Lafferty v. St. Riel, 495 F.3d 72, 76 (3d Cir. 2007). Pennsylvania law
applies to this dispute.
“An invitee is entitled to expect that the [business owner] will take reasonable care to ascertain
the actual condition of the premises and, having discovered it, either to make it reasonably safe
by repair or to give warning of the actual condition and the risk involved therein.” Restatement
(Second) of Torts § 343 (1965), comment d. A possessor of land is “not an insurer of the
visitor’s safety.” Rabutino v. Freedom State Realty Co., 809 A.2d 933, 939 (Pa. Super. Ct. 2002)
(citation omitted). Rather, a possessor of land is subject to liability for physical harm caused to
invitees by a condition on the land if, but 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 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.
Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983) (adopting Restatement (Second) of Torts §
343 (1965)); see also Zito v. Merit Outlet Stores, 647 A.2d 573, 574-75 (Pa. Super. Ct. 1994).
A plaintiff’s ability to produce evidence of a dangerous or hazardous condition is the crux
of a premises liability action involving a slip-and-fall. See Restatement (Second) of Torts § 343.
Pennsylvania courts require complainants to prove the existence of a harmful condition in
addition to the defendant’s notice of such a condition. See, e.g., Zito, 647 A.2d at 575
(“[E]vidence must show that the proprietor knew, or in the exercise of reasonable care should
have known, of the existence of the harmful condition.”); see also Canton v. Kmart Corp., 470 F.
App’x 79, 83 (3d Cir. 2012) (“The major issues [involving a slip-and-fall claim] ordinarily
involve the following: (1) Was there a foreign substance on the floor? . . .”); Felix v. GMS,
Zallie Holdings, Inc., 827 F. Supp. 2d 430, 436 (E.D. Pa. 2011), aff’d, 501 F. App’x 131 (3d Cir.
2012) (affirming summary judgment where there was “insufficient evidence that Defendants
either caused the dangerous condition or had actual notice of the dangerous condition”).
Defendant argues that summary judgment is appropriate here because there is no evidence to
prove the existence of a hazardous condition that caused Plaintiff to fall. (Memo. in Support of
Def.’s SJ Mot 7.) In response, Plaintiff contends that a juror could reasonably infer that the floor
in question was slippery and dangerous based on evidence that it was “unusually shiny.” (Pl.’s
Memo. in Support of SJ Resp. 2.)
Our analysis begins with the evidentiary record, drawing all reasonable inferences against
the moving party. Anderson, 477 U.S. at 255 (“The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in [her] favor.”). At her deposition,
Plaintiff testified that she did not observe any “foreign substances” on the floor where she fell.
(Daniels Dep. 17, 30, 32.) Plaintiff further testified that she does not know what caused her to
fall. (Id. at 28.) Her testimony included the following:
Q: When you walked into the fitting room itself where the incident occurred, did
you see anything on the floor?
A: No. . . .
Q: Did you look around on the floor to see if anything caused you to fall?
Q: Do you know what caused you to fall?
A: No. . . .
Q: After you fell and after you got up to your feet, did you notice anything on the
floor? Any foreign substance on the floor?
A: No. . . .
Q: Did you see, at any point in time, anything on the floor in that fitting room or
in the hallway outside the fitting room: debris, a cup, trash, anything like that?
(Id. at 17, 28, 32.) Plaintiff also testified that she did not notice any moisture on her clothes or
her shoes after she fell, and that the floor where she fell did not have any visible footprints or
streaks. (Id. at 30.) Plaintiff argues that this testimony is not fatal to her lawsuit. She asserts
that her testimony regarding the floor’s shininess creates an issue of material fact that must be
resolved by a jury. (Pl.’s Memo. in Support of SJ Resp. 2.) Plaintiff references the following
Q: Did you ever figure out what was on the floor, if anything, that was involved in
A: All I know, it was shiny.
Q: It was shiny?
A: Yeah. It was shiny.
Q: Okay. I think I asked you this. It was a tile floor. Correct?
Q: Was it shiny in some different way from all the other tile floors? Let me ask
you a better question. As you’re walking through the store that day, were all the
floors shiny or was it just that one area in the fitting room that was shiny?
A: I don’t remember. . . .
Q: Okay. When you fell and you were sitting on the floor, from touching the
floor either with your hand or with your body, could you detect any substance or
anything different about the floor?
A: It was just shiny, really shiny.
Q: Did it feel different to you?
A: I don’t remember.
(Daniels Dep. 71, 99-100.)
The evidence—even when viewed in a light most favorable to Plaintiff—does not
establish the existence of a hazardous condition. The parties agree that no one witnessed
Plaintiff’s fall. (Pl.’s SJ Resp. 10.) Plaintiff has not herself established that the floor was in a
hazardous condition, and she cannot identify any third party who observed that the fitting room
floor was in a hazardous condition before or after the incident. (Id.) The absence of any
supporting evidence in conjunction with Plaintiff’s testimony that she did not observe any
foreign substances on the floor before or after her fall sufficiently demonstrates “that there are no
facts supporting the nonmoving party’s legal position.” Celotex, 477 U.S. at 323.
Plaintiff testified only that the floor was shiny. She did not testify that the floor was
slippery, and she did not testify as to what caused her to fall. Although elements of a cause of
action may be established by drawing inferences from circumstantial evidence, these inferences
must be reasonable and logical. Fedorczyk v. Caribbean Cruise Lines, 82 F.3d 69, 75 (3d Cir.
1996). Conclusions based on such inferences must not be the result of speculation and
conjecture. Id. at 75. Plaintiff contends that a fact-finder may infer that the floor was in a
hazardous condition because it was shiny. The Pennsylvania Superior Court in Myers v. Penn
Traffic Co. discussed and rejected a similar argument. 606 A.2d 926, 931 (1992). In Myers, the
plaintiff allegedly slipped on wax that accumulated on the floor of a grocery store. See id. The
plaintiff testified that wax accumulated on the floor and that a store employee saw scuff marks in
the wax. Id. The superior court in affirming summary judgment observed that “[t]he real
question  is not whether there was an improper application of wax but whether such alleged
improper application created a condition so obviously dangerous as to amount to evidence from
which an inference of negligence would arise.” Id. (citation omitted). In this case, evidence of a
shiny floor alone does not constitute evidence from which a fact-finder could reasonably infer
the existence of a hazardous condition. Plaintiff does not offer evidence—testimonial or
otherwise—showing that the shine on the floor was dangerous or that it caused her fall. Instead,
she asserts that a jury could infer that the floor was in a hazardous condition based on her
observation regarding its shiny appearance. Such an inference would be sheer speculation. See,
e.g., Fedorczyk, 82 F.3d at 75 (“[W]hen the matter remains one of pure speculation and
conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to
direct a verdict for the defendant.” (citation and internal quotation omitted)).
Other courts have reached similar conclusions. For example, in Kazimer v. Methacton
School District, the 78-year-old plaintiff sustained physical injuries after he slipped on a
staircase. No. 760 C.D. 2015, 2016 WL 300072, at *1 (Pa. Commw. Ct. Jan. 22, 2016). Like
Daniels, the plaintiff in Kazimer “did not notice any liquid or debris on the steps or any defects
in the steps.” Id. at 2. The court concluded that the plaintiff’s testimony that the stairs had a
“shiny, glossy finish” did not sufficiently demonstrate “either a structural defect in the stairs or
the negligent maintenance of the stairs as a cause for [the p]laintiff’s injuries.” Id. at 6. As a
result, the court affirmed summary judgment. Id. at 7. Similarly, summary judgment was
affirmed in Yeiter v. Kmart Corp. Bergensons Prop. Servs., No. 1210 EDA 2013, 2014 WL
10896970, at *4 (Pa. Super. Ct. July 1, 2014). In that case, the plaintiff failed to offer evidence
of a defect that caused her to fall in a retail store. See id. at 1. The plaintiff merely testified that
the floor in question “was just like slippery and shiny.” See id. at 3. Like Daniels, the plaintiff
in Yeiter testified that she did not know what caused her to fall and that she did not observe
anything on the floor. Id. Again, summary judgment was affirmed. Id. at 4. The evidence
presented in this case exhibits the same weakness as the evidence in both Kazimer and Yeiter.
Plaintiff has merely described a floor as shiny, nothing more.
Plaintiff makes a passing reference to Reinoso v. Heritage Warminster SPE LLC, 108
A.3d 80, 81 (Pa. Super. Ct. 2015) to save her claim from dismissal. (See Pl.’s Memo. in Support
of SJ Resp. at 1.) In its broadest sense, Reinoso stands for the proposition that property owners
are not responsible for trivial defects. The excerpt cited by Plaintiff is included only in the
court’s recount of precedent involving sidewalk defects. It has no applicability here. In any
event, Plaintiff has failed to offer any evidence in this case tending to establish that a dangerous
or defective condition existed.
Since the evidentiary record in this matter does not contain any evidence that would
support a finding of negligence, summary judgment in favor of Defendant is required.
For these reasons, Defendant’s Motion for Summary Judgment will be granted.
An appropriate Order will follow.
BY THE COURT:
R. BARCLAY SURRICK, J.
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