Cole v. WALMART, INC. et al

Filing 19

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 7/1/21. 7/1/21 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHIRETHA COLE,

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Plaintiff,
v.
WALMART, INC., et al.,
Defendants.

CIVIL ACTION
NO. 20-3436

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

July 1, 2021

This is a premises liability negligence claim. Plaintiff
Shiretha Cole alleges she suffered severe and permanent bodily
injury after slipping and falling because of negligence
attributable to Defendants Walmart, Inc., Wal-Mart Stores East,
LP, and Wal-Mart Real Estate Business Trust (collectively,
“Walmart”).
Walmart now moves for summary judgment on the claim. Since
Cole has not pointed to evidence that enables a jury to find
that Walmart had actual or constructive notice of the spill, the
Court will grant Walmart’s motion.
I. BACKGROUND 1
On November 12, 2018, Plaintiff Shiretha Cole slipped and
fell on a “slime” substance while shopping in a Walmart in
As required at the summary judgment stage, the Court views the facts
“in the light most favorable” to the nonmoving party and draws “all

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Harrisburg, Pennsylvania. Pl.’s Dep. 33:14-16, ECF No. 17-6.
Cole testified that she did not see any substance on the ground
nor any Walmart employees in the vicinity prior to her fall.
Pl.’s Dep. 28:3-23. Cole testified that she slipped on
“purplish, pinkish glitter . . . like a slime ball split in
half.” Pl.’s Dep. 33:14-16. After falling, Cole observed several
Walmart employees gathered around a desk about thirty steps
away. Pl.’s Dep. 35:22–36:2. Cole testified that she immediately
felt sharp pain in her neck and ankle, and “jabbing pain” in her
back. Pl.’s Dep. 32:2-33:7.
Wayne Snyder, the store manager, testified that employees
are required to complete hourly safety sweeps to identify and
clean debris. Snyder Dep. 18:10-18, ECF No. 18, Ex. B. Walmart
does not formally document the completion of safety sweeps. See
Snyder Dep. 22:10-24. Jillian Coley, an employee who responded
to Cole’s fall, testified that a safety sweep was conducted
prior to Cole’s fall because a group of children were creating
“chaos” in the store. Coley Dep. 19:14-20:25, ECF No. 18, Ex. C.
Coley testified that there was a “substance” on the children’s
clothing as they exited the store. Coley Dep. 21:3-4.
Photographs of the slimy substance were taken after Cole
fell. See Defs.’ Mot. Summ. J. Ex. C, ECF No. 17-7. Cole argues

reasonable inferences” in that party’s favor. Young v. Martin, 801 F.3d 172,
174 n.2 (3d Cir. 2015).

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that photographs of the slime show “numerous track marks” which
demonstrates the spill was “not fresh” when she fell. Pl.’s
Opp’n Defs.’ Mot. Summ. J. 17, ECF No. 18. Conversely, Walmart
argues that the photographs show the slime was “fresh,
untracked, and free of dirt or debris.” Defs.’ Mot. Summ. J. 9,
ECF No. 17-3.
Cole brought suit in the Philadelphia Court of Common
Pleas. Walmart, invoking diversity jurisdiction, removed the
case to this Court and now moves for summary judgment.
II.

LEGAL STANDARD
Summary judgment is proper when “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.” Fed. R. Civ.
P. 56(a). “A fact is material if it ‘might affect the outcome of
the suit under the governing law.’” Physicians Healthsource,
Inc. v. Cephalon, Inc., 954 F.3d 615, 618 (3d Cir. 2020)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). “A factual dispute is genuine if the ‘evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.’” Id. (quoting Anderson, 477 U.S. at 248).
The moving party bears the initial burden of showing the
absence of a genuine issue of material fact. If the movant meets
this obligation, the nonmoving party must “set forth specific
facts showing that there is a genuine issue for trial.”
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Anderson, 477 U.S. at 250. At the summary judgment stage, the
Court must view the facts “in the light most favorable to” the
nonmoving party and “draw all reasonable inferences in favor” of
that party. Young v. Martin, 801 F.3d 172, 174 n.2 (3d Cir.
2015).
III. DISCUSSION
Under Pennsylvania law, a claim for negligence requires
proof of four elements:
(1) a duty or obligation recognized by the law,
requiring the actor to conform to a certain standard
of conduct for the protection of others against
unreasonable risks; (2) a failure to conform to the
standard required; (3) a causal connection between the
conduct and the resulting injury; and (4) actual loss
or damage resulting in harm to the interests of
another.
Felix v. GMS, Zallie Holdings, Inc., 827 F. Supp. 2d 430, 435
(E.D. Pa. 2011) (Robreno, J.) (citing Nw. Mut. Life Ins. Co. v.
Babayan, 430 F.3d 121, 139 (3d Cir. 2005)).
While shopping at Walmart, Cole was an “invitee.” See
Restatement (Second) of Torts § 332 (defining “invitee” to
include a “person who is invited to enter or remain on land as a
member of the public for a purpose for which the land is held
open to the public”). “‘Possessors of land owe a duty to protect
invitees from foreseeable harm’ . . . only when the possessor
‘knows or by the exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable
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risk of harm to such invitee.’” Felix, 827 F. Supp. 2d at 436
(first quoting Carrender v. Fitterer, 469 A.2d 120, 123 (Pa.
1983); and then quoting Restatement (Second) of Torts § 343). A
possessor owes a duty to an invitee when the possessor has
“‘actual or constructive notice’ of the dangerous condition.”
Id. (quoting Est. of Swift v. Ne. Hosp. of Phila., 690 A.2d 719,
722 (Pa. Super. Ct. 1997)). Here, neither party points to record
evidence indicating Walmart had actual notice of the condition.
Accordingly, whether Walmart owes a duty to Cole depends on
whether Walmart had constructive notice of the hazardous
condition.
Courts rely on a variety of factors to determine
constructive notice, including: “the number of persons using the
premises, the frequency of such use, the nature of the defect,
its location on the premises, its probable cause, and the
opportunity which defendant, as a reasonably prudent person, had
to remedy it.’” Id. at 437 (quoting Hagan v. Caldor Dep’t
Stores, Inc., No. 89–7810, 1991 WL 8429, at *4 (E.D. Pa. Jan.
28, 1991)). The time elapsed between the start of the hazard and
the accident is “one of the most important factors to be taken
into consideration.” Neve v. Insalaco’s, 771 A.2d 786, 791 (Pa.
Super. Ct. 2001) (quoting Rogers v. Horn & Hardart Baking Co.,
127 A.2d 762, 764 (Pa. Super. Ct. 1956)). See generally Lanni v.
Pa. R.R. Co., 88 A.2d 887, 889 (Pa. 1952) (describing the
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circumstances that establish constructive notice). The duration
is critical because if a hazard “only existed for a very short
period of time before causing any injury, then the possessor of
land, even ‘by the exercise of reasonable care,’ would not
discover the hazard, and thus would owe no duty to protect
invitees from such a hazard.” Felix, 827 F. Supp. 2d at 437
(quoting Restatement (Second) of Torts § 343).
Typically, the determination of constructive notice is made
by the jury. Id. But, where the evidence “requires the jury to
resort to ‘conjecture, guess or suspicion,’ the determination
must be made by the Court.” Id. (quoting Lanni, 88 A.2d at 889).
Courts determine constructive notice when there is no evidence
of the duration of the hazard to “guide the jury.” Craig v.
Franklin Mills Assocs., L.P., 555 F. Supp. 2d 547, 553 (E.D. Pa.
2008) (Robreno, J.); see, e.g., Saldana v. Kmart Corp., 260 F.3d
228, 232 (3d Cir. 2001) (explaining that evidence must be
provided that would allow the jury to infer duration of the
condition). Here, the record evidence does not establish how
long the hazard was on the floor. The jury would have to
speculate as to the length of time that elapsed between the
spill and Cole’s fall. Therefore, the Court must determine
constructive notice.
Cole argues that three facts establish constructive notice:
(1) presence of employees, (2) failure to document safety
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sweeps, and (3) photographs of the slime. First, Cole argues
that if the employees located near the hazard exercised
reasonable care, then the employees would have discovered the
slime. Pl.’s Opp’n Defs.’ Mot. Summ. J. 16, ECF No. 18. Standing
alone, presence of an employee near the hazard does not
establish constructive notice; the plaintiff “must present
evidence that the spill was there long enough for an employee to
notice it.” Rodgers v. Supervalu, Inc., No. 16-3641, 2017 WL
895590, at *3 (E.D. Pa. Mar. 6, 2017) (citing Craig, 555 F.
Supp. 2d at 550), aff’d sub nom. Rodgers v. Moran Foods LLC, 720
F. App’x 676 (3d Cir. 2018). Additionally, presence of an
employee near the hazard does not establish a lack of reasonable
care. See D’Aprile v. Rolling Hill Hosp., 28 Pa. D. & C.4th 430,
435 (Pa. Ct. C.P. Montgomery Cnty. 1995) (citing Harclerode v.
G.C. Murphy Co., 217 A.2d 778, 780 (Pa. Super. Ct. 1966)
(holding that nearby presence of manager did not establish
constructive notice)).
Here, Cole has not provided evidence that the Walmart
employees approximately thirty feet away observed the hazard.
The record does not indicate that the employees could see the
slime from where they stood. Therefore, nearby presence of the
Walmart employees alone does not establish constructive notice.
Second, Cole argues that because there is no documentation
of the safety sweeps the jury should conduct a credibility
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analysis to determine whether the safety checks occurred.
Failure to follow store policy does not establish a breach of
the duty of care. Hower v. Wal-Mart Stores, Inc., No. 08-1736,
2009 U.S. Dist. LEXIS 51557, at *18 (E.D. Pa. June 16, 2009);
see, e.g., Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536,
543 (5th Cir. 2005) (applying Texas law) (“[A] company’s selfimposed policy with regard to inspection, taken alone, does not
establish the standard of care that a reasonably prudent
operator would follow.”). Further, the adequacy of store policy
is only considered after establishing that the defendant had
notice of the hazard. Felix, 827 F. Supp. 2d at 440 (citing
Craig, 555 F. Supp. 2d at 550); see also Est. of Swift v. Ne.
Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super. Ct. 1997)
(affirming trial court’s grant of defendant’s motion for summary
judgment where janitorial maintenance records indicated person
tasked with maintaining area left four hours prior). In Thakrar
v. Wegman’s Food Market, 75 Pa. D. & C.4th 437, 443 (Pa. Ct.
C.P. Northampton Cnty. 2004), the court denied the defendant’s
motion for summary judgment and noted that the defendant failed
to abide by its policy of hourly safety sweeps. In Thakrar, in
addition to the failure to complete and document safety sweeps,
the defendant’s employees testified that they saw “a trail of
drops of a similar substance” near the area where the spill was
cleaned. Id. at 442-43. This case is unlike Thakrar because Cole
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did not provide evidence that the employees observed any hazard
in the area before Cole’s fall. Without evidence that any
employee saw the spill or that the spill was on the ground for
any duration, the lack of safety sweep documentation should not
be considered by the Court.
Finally, Cole argues that the photographs of the slime show
“numerous track marks” indicating a spill that was present for
an extended period. Pl.’s Opp’n Defs.’ Mot. Summ. J. 17, ECF No.
18. “[T]racking evidence may be used in conjunction with other
evidence to show duration . . . .” Felix, 827 F. Supp. 2d at
440. However, if there is no evidence of tracking before the
fall, then “the jury could not discern whether [tracking] was
caused by another person before Plaintiff’s fall, someone
responding to Plaintiff’s fall, or Plaintiff’s fall itself.” Id.
(citing Craig, 555 F. Supp. 2d at 552).
Here, the photographs were taken after Cole fell. Although
the parties have different interpretations of what the photos
demonstrate, the disagreement is immaterial because the jury
would still have to speculate to determine what caused the
tracking. Without evidence of the spill prior to Cole’s fall,
the photographs do not establish constructive notice.
As set forth above, the record cannot support a finding
that Walmart had constructive notice of the conditions at issue
and therefore owed a duty to Cole. Because Cole cannot establish
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the first element of her negligence claim, Walmart is entitled
to summary judgment.
IV.

CONCLUSION
For the foregoing reasons, the Court will grant Walmart’s

motion for summary judgment. An order consistent with this
memorandum will issue.

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