FALCONE v. HESS CORPORATION
MEMORANDUM. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 1/19/2017. 1/19/2017 ENTERED AND COPIES E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
January 19, 2017
This is a negligence action brought under Pennsylvania law. Defendant, Speedway
LLC filed a motion for summary judgment. Because there are genuine disputes of
material fact, I will deny the motion.
At about 9:00 p.m. on January 23, 2013, the plaintiff, Paul Falcone, pulled into the
parking lot of defendant Speedway LLC’s gas station in Orefield, Pennsylvania. Mr.
Falcone was working at the time, driving a box truck that belonged to his employer
Yocum Towing and Recovery, Inc. There to purchase diesel gasoline, Mr. Falcone
parked the truck at a diesel fuel pump. As he stepped out of the truck, Mr. Falcone’s foot
slipped on a puddle of gasoline and he fell to the ground, hitting the pavement. He was
knocked unconscious. A bystander eventually helped him to his feet. As a result of this
fall, Mr. Falcone fractured his elbow and his tooth. He had to undergo a procedure to
extract the damaged tooth and part of a surrounding facial bone. He has undergone
several back surgeries. Mr. Falcone also alleges that he now suffers from severe back
pain, whiplash, headaches, loss of vision, a sleep disorder, weakness, problems with
balance, and numbness and tingling in his extremities.
Defendant does not dispute that Mr. Falcone was at its store on the night in
question. Nor does it dispute that Mr. Falcone slipped and fell on diesel fuel in its parking
lot. (Doc. No. 44 ¶ 19). Instead, defendant argues that summary judgment should be
granted because it had no actual or constructive notice. Based on the record before me,
this is clearly a genuine dispute of material fact for a jury to resolve.
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.” Fed. R.
Civ. P. 56(a). A factual dispute is “material” only if it might affect the outcome of the
case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be
“genuine,” a reasonable fact-finder must be able to return a verdict in favor of the nonmoving party. Id.
A party seeking summary judgment initially bears responsibility for informing the
court of the basis for its motion and identifying those portions of the record that it
believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by citing relevant portions of the record, including
depositions, documents, affidavits, or declarations, or showing that the materials cited do
not establish the absence or presence of a genuine dispute, or showing that an adverse
party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c).
Summary judgment is therefore appropriate when the non-moving party fails to rebut the
moving party’s argument that there is no genuine issue of fact by pointing to evidence
that is “sufficient to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
Under Rule 56 of the Federal Rules of Civil Procedure, the court must draw “all
justifiable inferences” in favor of the non-moving party. Anderson, 477 U.S. at 255. The
Court must decide “not whether . . . the evidence unmistakably favors one side or the
other but whether a fair-minded jury could return a verdict for the plaintiff on the
evidence presented.” Id. at 252.
As this is an action based on diversity of citizenship jurisdiction, I must apply
Pennsylvania law. Hunt v. U.S. Tobacco Co., 538 F.3d 217, 220 (3d Cir. 2008).
Premises Liability Under Pennsylvania Law
Under Pennsylvania law, the duty a landowner owes to a person on its land
depends upon whether the person is a business invitee, licensee, or trespasser. Trude v.
Martin, 660 A.2d 626, 630 (Pa. Super. Ct. 1995). A business invitee is a “person who is
invited to enter or remain on land for a purpose directly or indirectly connected with the
business dealings with the possessor of the land.” Charlie v. Erie Ins. Exch., 100 A.3d
244, 253 (Pa. Super. Ct. 2014) (quoting Restatement (Second) of Torts § 332 (2016)).
The parties agree that Mr. Falcone was at defendant’s gas station as a business invitee
and thus the following principles of law apply.
“The duty owed to a business invitee is the highest duty owed to any entrant upon
land.” Truax v. Roulhac, 126 A.3d 991, 997 (Pa. Super. Ct. 2015). Under this duty of
care, a landowner cannot escape liability simply by protecting business invitees from
“known dangers.” Id. It must also protect business invitees from dangers that might be
discoverable with reasonable care. Id. Specifically, a landowner is liable for a business
invitee’s injuries if the landowner:
(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;
(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.
Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1193 (Pa. Super. Ct. 2015) (quoting
Restatement (Second) of Torts § 343 (2016)). In making out its prima facie case, a
business-invitee plaintiff must ultimately prove that the landowner “had a hand in
creating the harmful condition, or that he had actual or constructive notice of such
condition.” Moultrey v. Great A & P Tea Co., 422 A.2d 593, 535 (Pa. Super. Ct. 1980).
A jury may infer a landowner had actual notice of a condition where “the
condition is one which the owner knows has frequently recurred.” Porro v. Century III
Assocs., 846 A.2d 1282, 1286 (Pa. Super. Ct. 2004). This obviates the need for the
plaintiff to prove constructive notice. Id. If a plaintiff is unable to demonstrate actual
notice, he or she may still meet its burden by establishing constructive notice. What
amounts to constructive notice of a condition depends upon several factors. Hagan v.
Caldor Dep’t Stores, Inc., Civ. A. No. 89–7810, 1991 WL 8429, at *4 (E.D. Pa. Jan. 28,
1991) (citing Stais v. Sears Roebuck & Co., 102 A.2d 204, 206 (Pa. Super. Ct. 1954)).
These factors include: (1) the number of persons using the premises; (2) the frequency of
such use; (3) the nature of the defect; (4) location of the premises; (5) the condition’s
probable cause; and (6) the opportunity that the defendant, as a reasonably prudent
person, has to remedy the condition. Id.
Based on a review of the evidence, whether defendant had actual notice is a
disputed question of fact for the jury to resolve.
Mr. Falcone has come forth with ample evidence sufficient to raise a triable issue
on this point. One of defendant’s employees, who was working at the gas station the
night Mr. Falcone was injured, testified she was aware that, over the years, there were
recurring gasoline spills in the parking lot. (Doc. No. 44-8, Soldridge Dep. 24–25). These
spills would occur both because customers would overflow their tanks while pumping gas
and also because “sometimes the pump would malfunction.” (Id.) These fuel spills would
occur a few times every month. (Id.) Defendant’s employees were required to fill out a
“Monthly Site Safety Checklist.” (Doc. No. 47-1, Ex. 3). This checklist explicitly states
that there should be “[n]o gasoline or oil spills” in the parking lot. (Id.) It also requires
employees to check a box labeled either “acceptable” or “unacceptable,” depending on
the presence—or lack thereof—of gas or oil spills. (Id.)
In light of this evidence, the defendant undoubtedly had some knowledge of the
danger and frequency of fuel spills if it affirmatively included fuel spills as a dangerous
condition on its safety checklist. This is especially true given that defendant’s employees
were aware the gas pumps would randomly malfunction and customers would cause
spills. There is further testimony that defendant required all its employees to check the
fuel pumps and parking lot for spills at the beginning of, and throughout, their shifts.
(Doc. No. 44-9, Kleitches Dep. 39–40; Doc. No. 44-13, Worman Dep. 51, 59). A jury
could reasonably infer, based on the above evidence alone, that the defendant knew gas
and oil spills frequently occurred at its gas station.
Defendant relies heavily on Marchante v. Auto Zone, Inc., Civ. Action No. 12-cv00691, 2013 WL 1389758 (E.D. Pa. Apr. 4, 2013). In that case, the district judge granted
summary judgment for the defendant where the plaintiff slipped on oil and fell in
defendant’s parking lot. Id. The court found that, although there were a few oil spills per
week at defendant’s store, there was no evidence that oil spills were not “immediately
cleaned up” by defendant’s employees any time they occurred. Id. at *7.
Unlike in Marchante, here, Mr. Falcone has pointed to evidence sufficient for a
jury to infer that defendant’s employees failed to clean up spills. Ms. Kleitches, a gas
station employee, testified that she was required to check the parking lot for anything that
was wrong at the very beginning of her shift. (Doc. No. 44-9, Kleitches Dep. 39–40). Ms.
Kleitches worked the day Mr. Falcone was injured. (Doc. No. 44-6). Mr. Falcone slipped
on the diesel fuel spill at approximately 9:00 p.m. (Doc. No 44 ¶ 1; Doc. No. 47 ¶ 1).
Kleitches had begun her shift less than ten minutes earlier at 8:52 p.m. (Doc. No. 44-6).
Thus, based on defendant’s policies, Kleitches was required to inspect the parking lot at
8:52 p.m. the day Mr. Falcone was injured. Given that Mr. Falcone slipped on a diesel
spill several minutes after Kleitches was supposed to check the parking lot, a jury could
obviously infer that Kleitches failed to inspect the parking lot as she was required to. 1
This type of evidence was absent from the Marchante case. See Marchante, 2013 WL
1389758, at *7 (noting that there was no evidence the defendant’s employees did not
immediately clean up spills). The instant case is also unlike Marchante because, here,
Mr. Falcone indicated that he noticed a large wet spot in the parking lot as he pulled into
the store, necessarily suggesting the spill was present for some time before he arrived.
(Doc. No. 44-4, Falcone Dep. 139:8–144:16); cf. Marchante, 2013 WL 1389758, at *9
(“Plaintiff’s testimony was that he did not notice any spill on the sidewalk when he
entered the store.”). Thus, defendant’s reliance on Marchante is unavailing.
Defendant continually argues that its parking-lot inspection procedures were
adequate. It cites various employees’ deposition testimony, arguing that these employees
would “check the condition of the pumps when they took cigarette breaks.” (Doc. No. 51
at 11 n.2). One employee, who was on duty the day Mr. Falcone was injured, testified she
would check the pumps “whenever she went outside of the store, whether it be to smoke
a cigarette” or to empty the trash cans. (Id.) Another employee testified that the
employees, as a whole, would frequently check for spills in the parking lot. (Id.)
This inference necessarily implies that, if Kleitches had inspected the fuel pump as required, then she
would have discovered the oil spill Mr. Falcone slipped on.
Defendant’s emphasis on these inspection procedures hurts—not helps—its
argument. This is because defendant has conceded that Mr. Falcone slipped and fell on
diesel fuel in its parking lot. (Doc. No. 44 ¶ 19). Therefore, a jury is entitled to decide
whether or not defendant’s parking-lot inspection procedures were properly followed the
day of Mr. Falcone’s incident. One could fairly conclude they were not since—if they
had been followed—then Mr. Falcone would not have slipped and fallen on a diesel fuel
spill. This too is a genuine issue of material fact.
Defendant persists that summary judgment must be granted based on its premise
that fuel spills twice a month are not frequently recurring. Defendant appears to set forth
an absolute time-limit rule: “courts . . . do not characterize a frequent occurrence as
something that only happens once or twice a month.” (Doc. No. 51 at 2). However, none
of the cases cited by defendant in support of this proposition take such a hardline
approach. Nor are the factual situations in nearly all those cases analogous to this case.
For instance, in Read v. Sam’s Club, the frequency of the spills was once every
2.5 months—not several times each month. No. 2:05-cv-00170, 2005 WL 2346112, at *5
(E.D. Pa. Sept. 23, 2005). In Myers v. Penn Traffic Co., the court did not enter judgment
for the defendant because of the lack of frequency of the spills. 606 A.2d 926, 931 (Pa.
Super. Ct. 1992). Rather, it found for the defendant because there was no evidence from
which a jury could infer that the defendant contributed to the presence of the spill on the
floor. Id. Myers is unlike this case because Mr. Falcone has adduced evidence that one of
the defendant’s employees should have inspected the parking lot before he slipped on the
diesel fuel spill. Mr. Falcone has also pointed to evidence that he was the nineteenth user
of the fuel pump the day he was injured, as well as the specific times that other people
used that fuel pump throughout the day. (Doc. No. 47-1, Ex. 1). From this, a jury could
conclude that the fuel spill was there for some time (if caused by a prior customer who
used the same pump as Mr. Falcone) and that the defendant failed to discover it. Finally,
the portion of Moultrey cited by defendant has nothing to do with the lack of frequency
with which spills occurred at the defendant’s store. 422 A.2d at 596.
Above all, the seminal case regarding frequently recurring conditions makes no
statement about the specific amount of time needed to constitute a frequent recurrence.
Morris v. Atlantic & Pac. Tea Co., 121 A.2d 135, 137–38 (Pa. Super. Ct. 1956). It merely
states that a condition that is “often repeated” and is not a “mere chance occurrence” may
be considered by the jury in finding notice. Id. A jury could reasonably conclude that the
gas spills were “often repeated” and not “mere chance occurrences” based on the safety
checklists and defendant’s policy requiring its employees to continuously inspect the
parking lot for gas spills multiple times every day.
Aside from the foregoing, common sense dictates that a gas station should
reasonably anticipate there will frequently be gasoline spills in its parking lot. The
evidence discussed above is sufficient to create a genuine dispute of fact as to whether a
gas or diesel spill is a condition “which [defendant] knows has frequently recurred.”
Porro, 846 A.2d at 1286. There is thus a genuine dispute of material fact regarding
whether the defendant “had actual notice of the condition.” Id. Accordingly, summary
judgment is not proper.
Even if defendant were able to establish it had no actual notice, summary
judgment would still be improper because there is a genuine dispute of fact regarding
whether defendant had constructive notice. Defendant argues that it could not have had
constructive notice because Mr. Falcone has not adduced any evidence as to the length of
time the diesel fuel was on the blacktop before he fell. This argument is unpersuasive for
First, plaintiff has in fact adduced evidence tending to show how long the diesel
fuel was on the pavement. Specifically, plaintiff points to a record of purchases that
occurred at the gas pump Mr. Falcone used the day he was injured. Defendant does not
dispute that this transaction record shows Mr. Falcone was the nineteenth user of that
specific gas pump the day he was injured. This record shows the exact times that gas was
purchased on that pump throughout the day. 2 Mr. Falcone has also pointed to evidence of
the specific times that defendant’s employees clocked in the day of his injury. Some of
the employees clocked in in the early afternoon, while Ms. Kleitches clocked in at 8:52
p.m. Defendant stresses that its employees were required to check for gas spills
frequently throughout the day, including at the beginning of their shifts. (Doc. No. 51 at
11 n.2). This record of gas purchases, the specific times of those gas purchases, the
specific times the employees began their shifts, and the employees’ duties to check the
parking lot, certainly presents a coherent timeline from which both parties could argue
how long the spill was on the ground. Confronted with this evidence—especially in light
From this, a jury could reasonably infer that one of the previous eighteen customers spilled the fuel and
that, depending on what time that happened, one of defendant’s employees should have discovered the spill before
Mr. Falcone arrived.
of defendant’s insistence that its employees frequently checked the parking lot—a jury
could fairly conclude the spill was on the ground for some time but that the defendant’s
employees either (i) failed to discover it, or (ii) knew about it but did not clean it up. Of
course, based on the same evidence, the jury could also find that the spill was not on the
ground for very long. Either way, it is clear that this is a factual question for the jury to
decide. The point is, at this stage, I cannot conclude there is no evidence of the duration
of time that the fuel spill was on the ground.
Second, recent Pennsylvania case law closes the door on defendant’s argument.
Defendant claims that the adequacy of its inspection of the parking lot the night Mr.
Falcone was injured is irrelevant to the instant motion. According to defendant, its
inspection—or lack thereof—can only be considered after there has been a showing of
actual or constructive notice. I disagree.
In Rodriguez v. Kravco Simon Co., the Pennsylvania Superior Court reversed a
trial court’s granting of summary judgment in a slip-and-fall case. 111 A.3d 1191, 1197
(Pa. Super. Ct. 2015). The trial court granted summary judgment on the basis that the
plaintiff failed to point to any evidence that would allow a jury to find that the defendants
had actual or constructive notice. Rodriguez, 111 A.3d at 1192. On appeal, the Superior
Court agreed with the trial court that there was no evidence from which a jury could
conclude the defendant had constructive notice. Id. at 1194. The Superior Court
nonetheless reversed the trial court. Id. at 1197.
In doing so, it referenced deposition testimony from the defendants’ employees
that they were required to sweep and mop the floors daily and then fill out sheets
indicating the same. Id. at 1196. However, during discovery, the defendants failed to
produce any of these sheets. Id. Therefore, the Superior Court held:
“With the open possibility that the [Defendants’] employees failed to check the floors as
scheduled prior to [plaintiff]’s fall, it is not clear that Defendants’ [sic] are entitled to
judgment as a matter of law.” Id. The court based its decision on language from
Comment b to § 343 of the Restatement regarding the duty owed invitees: “To the invitee
the possessor owes not only [the duty to disclose known dangers], but also the additional
duty to exercise reasonable affirmative care to see that the premises are safe for the
reception of the visitor, or at least to ascertain the condition of the land.” Id. at 1196–97
(alteration in original). 3
In other words, the Rodriguez court held that even without actual or constructive
notice, there was still a disputed question as to whether the defendant acted affirmatively
to inspect the premises to ensure invitees’ safety. This question alone precludes summary
judgment. Rodriguez’s holding parallels § 343’s statement that a landowner must
exercise reasonable care to discover a condition, even if the landowner does not in fact
know about it. See Restatement (Second) of Torts § 343(a) (making landowners liable if
they actually know of the condition “or by the exercise of reasonable care would discover
the condition”) (emphasis added).
This runs counter to defendant’s position that there is only a duty if the plaintiff can establish constructive
or actual notice. See Moultrey, 422 A.2d at 596 (“Pennsylvania courts have uniformly held that if the harmful
transitory condition is traceable to the possessor or his agent’s acts, (that is, a condition created by the possessor or
those under his authority), then the plaintiff need not prove any notice in order to hold the possessor accountable for
the resulting harm.”).
Just like the incident sheets in Rodriguez, here, the defendant has failed to produce
any copies of its Monthly Safety Checklists that were filled out by its employees. The
defendant has also failed to produce video surveillance footage of the parking lot the day
Mr. Falcone was injured. 4 Mr. Falcone has pointed to evidence, confirmed by defendant,
that defendant’s employees were required to inspect the parking lot multiple times each
day. Thus, as in Rodriguez, there is the distinct possibility that defendant’s employees
failed to inspect the area where the plaintiff fell. Cf. Rodriguez, 111 A.3d at 1196 (“With
the open possibility that the ESC employees failed to check the floors as scheduled prior
to Rodriguez’s fall, it is not clear that Defendants’ are entitled to judgment as a matter of
None of defendant’s reasons for its failure to produce this evidence passes muster. Defendant claims that
it did not preserve the video footage of its parking lot the day Mr. Falcone was injured because the video camera
was on a loop whereby it would tape over itself every sixty (60) days. Defendant received a letter from Mr.
Falcone’s counsel on March 26, 2013, informing defendant that he was planning to file suit against defendant on
behalf of Mr. Falcone. (Doc. No. 44-14). Because this letter was received 62 days after the incident, defendant
argues that the video footage no longer existed. The problem with defendant’s position here is two-fold. For one, the
record is not clear that the video was on a 60-day loop. When asked how long the video loop was maintained for at
the time of plaintiff’s injury, defendant’s general manager Derek Worman testified: “I don’t know for sure.” (Doc.
No. 44-13, Worman Dep. 20:18). Mr. Worman thought it was approximately sixty days but he was not certain. (Id.
20:18–22). More importantly, though, defendant mistakenly assumes that its duty to preserve the video was not
triggered until the day it received a letter from Mr. Falcone’s counsel on March 23, 2013. As explained by courts,
“[a] duty to preserve is not triggered [ ] at the mere onset of a potential claim or litigation, but litigation need not be
imminent either. The obligation to preserve evidence arises when the party has notice that the evidence is relevant to
litigation . . . as for example when a party should have known that the evidence may be relevant to future litigation.”
Giuliani v. Springfield Twp., Civ. Action No. 10–7518, 2015 WL 3604343, at *6 (E.D. Pa. June 9, 2015) (emphasis
added). After Mr. Falcone fell in defendant’s parking lot, Worman received a call from Mr. Falcone’s employer
asking if defendant had video surveillance of the day Mr. Falcone was injured. (Doc. No. 44-13 at 17–19). When
Worman received this phone call asking about the surveillance footage of Mr. Falcone’s fall, defendant was clearly
put on notice that this evidence “may be relevant to future litigation.” Id. Because it is not clear that this phone call
did not come before the video footage looped back, it is a distinct possibility that defendant failed to preserve the
video surveillance footage.
Defendant’s excuse for not producing the safety checklists is even worse. Defendant admits that these
checklists exist and are kept for at least one year after each is filled out. (Doc. No. 51 at 13). Despite this, defendant
refused to produce any filled out checklists to Mr. Falcone based on its own self-judicial and cavalier conclusion that
these checklists have “no relevance to this lawsuit.” (Id. at 13–14). This is patently incorrect. The checklists are
directly relevant to the core issue of whether gas spills “frequently occurred” at defendant’s gas station. Porro, 846
A.2d at 1286.
I am not persuaded by defendant’s reasons for refusing to produce the above materials. The defendant
cannot withhold relevant evidence and then rely on its own spoliation in arguing that the plaintiff has not pointed to
sufficient evidence to withstand summary judgment.
law”). This, by itself, is sufficient to warrant denial of summary judgment because it
leaves open the question of whether the defendant exercised “affirmative care” to ensure
that its parking lot was safe. Id. at 1197 (quoting Restatement (Second) of Torts § 343
In sum, plaintiff has come forth with evidence sufficient to raise a genuine dispute
of material fact as to whether defendant had constructive notice. Even without this
evidence, summary judgment would be proper simply because there is a question as to
whether defendant exercised reasonable care to discover the gas spill.
Plaintiff has come forth with evidence sufficient to raise a genuine dispute of
material fact as to whether defendant had actual or constructive notice. Accordingly, I
will deny defendant’s motion for summary judgment.
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