Charles McDowell v. Moran Foods LLC
680 F. App'x 72
3rd Cir.2017Background
- McDowell slipped on a ~3.5-inch yellow banana piece in aisle six of a Save‑a‑Lot store on Jan 13, 2014 and alleges serious injuries.
- Surveillance recorded the fall; the banana piece was partly "smushed," clean, and its peel was not found. McDowell did not know how long it had been on the floor.
- Save‑a‑Lot’s assistant manager (Weisbrod) and staff had done a “Commitment to Win” walkthrough and a four‑hour “clean sweep” earlier (between ~1:00–1:30 p.m.); they testified no banana was present then.
- Weisbrod recalled an employee noted two issues in aisle six during the sweep (restocking milk and another possible restock issue); he did not recall that the second issue was a hazard like a banana.
- McDowell sued in state court for negligence; Save‑a‑Lot removed, moved for summary judgment, and the district court granted it for lack of actual or constructive notice. McDowell appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Save‑a‑Lot had actual notice of the banana | McDowell: employee notes in aisle six show store had notice; banana could have been observed | Save‑a‑Lot: no evidence store observed or created the banana; testimony denies banana present during sweep | No actual notice — summary judgment affirmed |
| Whether Save‑a‑Lot had constructive notice (was banana on floor long enough to impute notice) | McDowell: ambiguity about the employee’s note creates a factual dispute permitting inference banana was present during sweep | Save‑a‑Lot: no timing evidence; banana was clean/yellow and not trampled; would require speculation | No constructive notice — plaintiff failed to show condition existed long enough |
| Whether Restatement § 344 (liability for third‑party acts) applies | McDowell: existence of regular clean sweeps implies hazards are regular, supporting § 344 claim | Save‑a‑Lot: no evidence a third‑party routinely created such hazards or that store knew of recurring risk | § 344 claim fails — no evidence of regular third‑party hazard or notice |
| Whether summary judgment was appropriate overall | McDowell: testimony and sweep notes create triable issues | Save‑a‑Lot: absence of evidence on duration or store knowledge precludes reasonable jury inference | Summary judgment appropriate; conjecture cannot defeat summary judgment |
Key Cases Cited
- Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000) (summary judgment review standard and viewing facts in plaintiff’s favor)
- Kirschbaum v. WRGSB Assocs., 243 F.3d 145 (3d Cir. 2001) (land possessor liability elements for invitees)
- Moultrey v. Great A&P Tea Co., 422 A.2d 593 (Pa. Super. Ct. 1980) (constructive notice requires condition to have existed long enough that owner should have known)
- Lanni v. Pa. R.R. Co., 88 A.2d 887 (Pa. 1952) (jury may not base verdict on speculation regarding constructive notice)
- Swift v. Northeast Hosp. of Philadelphia, 690 A.2d 719 (Pa. Super. Ct. 1997) (summary judgment where plaintiff failed to show how or how long condition existed)
- Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014) (speculation or conjecture cannot create a genuine issue to defeat summary judgment)