LIVSHITZ et al v. DESIGNER BRANDS, INC et al

Filing 37

MEMORANDUM AND OPINION. SIGNED BY HONORABLE JOHN F MURPHY ON 11/14/23. 11/14/23 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARINA LIVSHITZ, MIKHAIL
LIVSHITZ
v.
DESIGNER BRANDS, INC., DSW, INC.

: CIVIL ACTION
:
:
: NO. 22-3355
:
:

MEMORANDUM
MURPHY, J.

November 14, 2023

Marina Livshitz sued DSW after slipping and falling in a DSW store bathroom. DSW
has moved for summary judgment, arguing that Ms. Livshitz cannot prove constructive notice of
the condition that caused her to slip. Because Ms. Livshitz fails to cite any evidence showing
DSW ought to have known about the slippery condition on the bathroom floor, we grant DSW’s
motion.
I.

Facts 1
On December 17, 2021, Ms. Livshitz — then 64 years old — went to a DSW 2 store in

Willow Grove, Pennsylvania. 3 At around 2:00 PM, she went to use the store’s restroom. 4 She

1

The factual background comes from Ms. Livshitz’s version of the statements of fact in
her opposition to DSW’s summary judgment motion. See DI 30. While Ms. Livshitz does not
directly respond to DSW’s statement of undisputed facts, see DI 28-1, she responded to the set of
numbered paragraphs that DSW included in its motion for summary judgment. See DI 27. The
paragraphs included in DSW’s motion overlap in large part with its separately filed statement of
undisputed facts. See DI 27.
2

Defendant Designer Brands, Inc. owns DSW. See DI 28-1 at 1 n.1. For simplicity, both
defendants are captured in our reference to DSW.
3

See DI 30 ¶ 3.

4

See id. ¶ 5 (referencing DI 27 Ex. C, DSW’s public incident report).

entered the handicapped stall of the women’s room, used the toilet, “stepped to the left,” slipped,
and fell on the left side of her body. 5 No one witnessed the fall. 6 Video footage from the store’s
showroom was not preserved on the day she fell. 7
Afterwards, Ms. Livshitz could not identify what caused her to slip. 8 She described the
substance as odorless and “clear because [she] didn’t notice it.” 9 She did not know “how long
that substance, whatever it was, was on the ground before [she] fell.” 10 Her entire left side pant
leg was damp after she slipped and crawled towards the bathroom door. 11
Jennifer Coyle, a former DSW employee, noted in a subsequent incident report that she
“inspected or observed” the women’s restroom at 1:30 PM — about thirty minutes before Ms.
Livshitz slipped. 12 Ms. Coyle testified that she “remember[ed] using” the restroom before Ms.

5

See id. ¶¶ 3, 4 (citing DI 27 Ex. B).

6

Id. ¶ 15.

7

See id. ¶¶ 12-13.

8

See id. ¶ 6 (quoting DI 27 Ex. B) (“Q: Do you have any belief being — well, do you
have any idea at all what the wet substance was that you fell on? A: I don’t know.”).
9

Id. (quoting DI 27 Ex. B).

10

Id. (quoting DI 27 Ex. B) (“Q: Do you know how long that substance, whatever it was,
was on the ground before you fell? A: No.”).
11

See id. (“Based upon the . . . testimony,” Ms. Livshitz “confirmed that . . . [t]here was
enough of the slippery substance on the bathroom floor at the time of her fall that her entire left
pant leg, and the side of her sleeve, got damp as she fell to the ground and then subsequently
crawled to the stall door.”).
12

Id. ¶ 12. Ms. Coyle also testified that took pictures and a video of the bathroom after
Ms. Livshitz slipped. See id. ¶ 14. Ms. Livshitz disputes whether she took the pictures and
video after she fell, or whether they were taken at some other time. See id. ¶¶ 13-14.
2

Livshitz left the store. 13 DSW’s store protocol requires employees like Ms. Coyle who use the
restrooms for personal use to also assess the restroom’s cleanliness upon entering. 14
Additionally, DSW stores have a morning and evening checklist that requires checking
store restrooms. 15 Don Dinkin, a DSW employee, testified that — around the time Ms.
Livshitz’s slipped — the Willow Grove store used its “own routine” and did not always abide by
the standard morning and evening protocol. 16 Failure to complete the prescribed checklists,
according to Mr. Dinkin, “could have been” a violation of DSW protocol. 17
II.

DSW’s Motion for Summary Judgment
Ms. Livshitz originally brought her negligence claim against DSW in Pennsylvania state
court. See DI 1 Ex. A. 18 DSW removed the action, and after initially setting a course for
arbitration, we granted Ms. Livshitz’s motion to remove the case from the arbitration track. See
DI 20, 21.
Now, DSW argues that, as a matter of law, Ms. Livshitz’s negligence claim fails. See
generally DI 27-2. DSW says that Ms. Livshitz has failed to provide any evidence that DSW

13

Id. ¶ 12 (quoting DI 27 Ex. E).

14

See id. ¶ 11.

15

See id. (quoting DI 27 Ex. D).

16

See id. (quoting DI 27 Ex. D).

17

Id.

18

Mikhail Livshitz, Ms. Livshitz’s husband, also sued DSW for loss of consortium. See
DI 1 Ex. A ¶¶ 18-20. DSW does not move for summary judgment on Mr. Livshitz’s consortium
claim, but given the outcome of DSW’s motion, we presume that Ms. Livshitz will stipulate to
dismissal or the parties can otherwise bring the case to final judgment.
3

had constructive notice of the substance on the bathroom floor. Id. at 4. 19 DSW maintains that
there is no circumstantial evidence that could “lead to an inference” that DSW “could have been
aware of the presence of the substance.” Id.
Ms. Livshitz disagrees. See generally DI 30-1. Relying on Mr. Dinkin’s and
Ms. Coyle’s deposition testimony, Ms. Livshitz argues that genuine issues of material fact exist
as to whether DSW “ought to have known” about the substance that caused the slip. See id. at
14. 20 She calls out the Willow Grove store’s apparent failure to abide by DSW’s morning and
evening checklists as evidence that the handicapped stall “was not inspected for cleanliness or
fall risks for a minimum of four (4) to five (5) hours prior to [her] fall.” Id. And she argues that
Ms. Coyle’s deposition testimony shows a genuine dispute as to whether she actually inspected
the handicapped stall where Ms. Livshitz slipped. Id. at 16.
Further, Ms. Livshitz argues that DSW “either inadvertently or purposefully failed to
preserve video surveillance from the date” of the fall. Id. at 18. She cites to testimony from Ms.
Coyle stating that she would normally save video footage in situations like Ms. Livshitz’s —
where an accident happens in the store. Id. at 17-18. Without the footage — and absent a way to
confirm whether the pictures and video Ms. Coyle took occurred after the slip — Ms. Livshitz

19

Citations to DSW’s memorandum in support of its motion for summary judgment use
the CM/ECF pagination system.
DSW also argues that Ms. Livshitz does not have any evidence that it had actual notice of
the substance. In response, Ms. Livshitz does not contest DSW’s argument, so we will not
address it. See DI 30-1 at 7.
Citations to Ms. Livshitz’s memorandum in opposition to DSW’s motion use the
CM/ECF pagination system.
20

4

insists that her case must go to a jury. See id. at 18-22. 21
We have subject-matter jurisdiction over the action, see 28 U.S.C. § 1332(a); DI 1, and
held oral argument on DSW’s motion. See DI 35. The motion is ripe for disposition. For the
reasons explained below, we grant DSW’s motion.
III.

Standard of Review
Courts “shall grant summary judgment 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.” Fed.
R. Civ. P. 56(a). “The moving party is ‘entitled to judgment as a matter of law’ because the
nonmoving party has failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). To succeed, the moving party must “identify evidence that demonstrates an absence of a
genuine issue of material fact.” Budhan v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 251 (3d
Cir. 2014). And “[i]f the moving party meets this burden, then it falls to the non-moving party to
present evidence on which a jury could reasonably find for it.” Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)). The non-moving party “cannot rely on unsupported
allegations” to withstand summary judgment, “but must go beyond pleadings and provide some
evidence that would show that there exists a genuine issue for trial.” Jones v. United Parcel
Serv., 214 F.3d 402, 407 (3d Cir. 2000). We must view the facts in the light most favorable to

21

DSW replies that Ms. Livshitz’s spoliation argument “is irrelevant to the issue of
constructive notice.” DI 31 at 3 (using CM/ECF pagination system).
5

the non-moving party. Moore v. City of Philadelphia, 461 F.3d 331, 340 (3d Cir. 2000).
IV.

Analysis
A. Ms. Livshitz has failed to present evidence that would prevent a jury from
speculating as to whether DSW knew about the substance causing her to slip.
Under Pennsylvania law, 22 a business invitee 23 suing a property owner for negligence
“must prove either the proprietor of the land had a hand in creating the harmful condition, or he
had actual or constructive notice of such condition.” Est. of Swift v. Ne. Hosp. of Phila., 690
A.2d 719, 722 (Pa. Super. Ct. 1997). “[T]he issue of prior notice to the store, either actual or
constructive, of an unreasonable risk of harm is more difficult to establish” than “establishing the
presence of a foreign substance on the floor.” David by Berkley v. Pueblo Supermarket of St.
Thomas, 740 F.2d 230, 234 (3d Cir. 1984); see Canton v. Kmart Corp., 470 F. App’x 79, 83 (3d
Cir. 2012) (“It is difficult to prove slip and fall cases, involving foreign substances on grocery
market floors.”).
Establishing constructive notice requires circumstantial evidence. “[T]he nature of the
defect and its location on the premises” may inform whether someone has constructive notice.
Lanni v. Pa. R.R. Co., 88 A.2d 887, 889 (Pa. 1952). And “[a] party may show constructive
notice by ‘demonstrating that the floor condition had existed for such a length of time that the
storeowner, in the exercise of ordinary care, should have been aware of the condition.’” Felix v.
GMS, Zallie Holdings, Inc., 501 F. App’x 131, 135 (3d Cir. 2012) (quoting Pueblo Supermarket,
740 F.2d at 236). In fact, “Pennsylvania courts often treat a plaintiff’s failure to provide

22

Neither party disputes that Pennsylvania law applies to Ms. Livshitz’s negligence

23

Nor do the parties dispute that Ms. Livshitz was a business invitee at DSW.
6

claim.

evidence with respect to the timing of the dangerous condition as dispositive because ‘[a] jury is
not permitted . . . to speculate or guess; conjecture, guess or suspicion do not amount to proof.’”
McDowell v. Moran Foods, LLC, 680 F. App’x 72, 75 (3d Cir. 2017) (alteration in original)
(quoting Lanni, 88 A.2d at 889) (affirming grant of summary judgment where “jury would have
to speculate how long [a] banana” causing a slip and fall had been on the ground of a store).
Even on Ms. Livshitz’s record and affording her all reasonable inferences, this case
would require a jury to speculate about how long the odorless, clear substance was on the ground
in the handicapped stall. Her first argument — that the purported failure to abide by DSW’s
morning and evening checklists demonstrates the store ought to have known about the
substance — does nothing to make the “timing” of the substance any less speculative. The fact
that DSW may have failed to follow company procedure on the morning of the incident is an
argument focused more on breaching a duty, rather than establishing that a duty existed based on
constructive notice. See, e.g., Lal v. Target Corp., 2013 WL 1311130, at *4 (E.D. Pa. Apr. 2,
2013) (failure to patrol spill stations “might well relate to whether [a store] acted reasonably, but
does not show that [the store] knew or should have known of the spill”); Rodgers v. Supervalu,
Inc., 2017 WL 895590, at *4 (E.D. Pa. Mar. 6, 2017) (defendant’s “violation of its own policy
requiring employees to monitor the store every two hours is not evidence that defendant had a
legal duty to protect plaintiff from the spill” (emphasis added)); Read v. Sam’s Club, 2005 WL
2346112, at *3 (E.D. Pa. Sept. 23, 2005) (whether defendant conducted “hourly protective
sweeps” of the floor was “immaterial to a finding of constructive notice” because, “although
these factual disputes are material in showing a breach of duty, they become relevant only after
plaintiff makes an evidentiary showing of the existence of a duty”).
7

Ms. Livshitz’s second argument is equally unpersuasive. Even assuming that Ms. Coyle
did not inspect the handicapped stall prior to Ms. Livshitz slipping, a jury would still have to
guess how long the substance was on the floor. In other words, “[t]here is simply no way for
[us] or a jury to know whether the dangerous condition appeared five minutes before [Ms.
Livshitz’s] fall or an hour before her fall, yet went unnoticed by” Ms. Coyle. Slater v.
Genuardi’s Family Mkts., 2014 WL 4763336, at *3 (E.D. Pa. Sept. 24, 2014).
Therefore, Ms. Livshitz has failed to present evidence demonstrating that DSW had
constructive notice of the clear, odorless substance on the bathroom floor. Her negligence claim
fails as a matter of law.
B. Ms. Livshitz fails to demonstrate how the video footage she claims was spoliated
is relevant to her negligence claim.
“Spoliation occurs where: the evidence was in [a] party’s control; the evidence is
relevant to the claims or defenses in the case; there has been actual suppression or withholding of
evidence; and, the duty to preserve the evidence was reasonably foreseeable to the party.” Bull
v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012). “The party seeking a spoliation
sanction bears the burden of proving these factors.” Harrell v. Pathmark, 2015 WL 803076, at
*3 (E.D. Pa. Feb. 26, 2015). And “[w]hen the contents of a document [or video] are relevant to
an issue in a case, the trier of fact generally may receive the fact of the document’s
nonproduction or destruction as evidence that the party that has prevented production did so out
of the well-founded fear that the contents would harm him.” Brewer v. Quaker State Oil Ref.
Corp., 72 F.3d 326, 334 (3d Cir. 1995).
Here, Ms. Livshitz does not establish how the purportedly spoliated video footage is at all
relevant to her negligence claim. First and foremost, Ms. Livshitz admits that the video footage
8

from the DSW store would not have shown her fall anyway. See DI 30 ¶ 12 (“there were no
video cameras installed within the store’s women’s bathroom where [she] fell”); see also
Harrell, 2015 WL 803076, at *3 (“[T]here is no evidence that the video footage would have been
relevant” because “there is simply no evidence that any video footage captured [plaintiff’s] fall at
all.”).
Second, Ms. Livshitz’s argument that the video could show when she or Ms. Coyle
entered and exited the bathroom does nothing to help establish constructive notice. A jury would
still need to speculate about the length of time the slippery substance appeared on the bathroom
floor. Their entry and exit times do not overcome this dispositive issue.
Therefore, Ms. Livshitz’s spoliation argument fails.
V.

Conclusion
Ms. Livshitz has failed to overcome DSW’s summary judgment motion by putting forth
some evidence regarding DSW’s constructive notice of the condition in the handicapped stall.
We grant DSW’s motion.

9