MEMORANDUM
1. INTRODUCTION
Plaintiff Marion Felix (“Plaintiff’) brings this slip and fall negligence action against (1) GMS, Zallie Holdings, Inc., 1 and (2) Canada Dry Delaware Valley Bottling Company (collectively, “Defendants”). Plaintiff alleges an injury following a fall in the frozen food section of a grocery store. Defendants asserted cross-claims against each other for contribution and/or indemnity. On September 1, 2011, Defendant-Canada Dry moved for summary judgment, and on September 2, 2011, Defendant-GMS did the same. Plaintiff opposed both, and the motions are now fully briefed and ripe for disposition.
II. BACKGROUND 2
This suit relates to Plaintiffs slip and fall at the ShopRite supermarket on Knorr *434 Street in Philadelphia, Pennsylvania. Pl.’s Compl. ¶ 10, ECF No. 1. Plaintiff arrived at ShopRite for the purpose of grocery shopping. She entered a store aisle, which contained a freezer section, and without noticing a puddle of liquid on the floor, slipped and fell onto her back allegedly sustaining injuries to her neck, back, arms, legs, buttocks, heels, and surrounding body parts. Id. ¶ 17. After this fall, and while still on the ground, Plaintiff observed that the substance she slipped on was a puddle of clear liquid, approximately one-quarter to one-half inch deep with several dust particles floating on its surface. Pl.’s Br. in Resp. to Def.-GMS’s Mot. for Summ. J. 15, ECF 23. Plaintiff did not know how long the liquid had been on the floor, nor could she identify the source of the liquid. Felix Dep. 44:19-23, May 3, 2011.
ShopRite’s manager, Mike Roth, responded to Plaintiffs fall. Pl.’s Br. in Resp. to Def.-GMS’s Mot. for Summ. J., Ex. I. Mr. Roth stated that there was a Canada Dry pallet ten to twenty minutes before Plaintiffs fall in the same aisle and approximate location as Plaintiffs fall. Roth Dep. 40:4-11, July 12, 2011. And, because of the pallet’s previous location, he assumed that the liquid Plaintiff fell on came from this pallet. Roth Dep. 39:1-4. Nonetheless, Mr. Roth did not see any liquid leak from the pallet or see any liquid on the floor at all before responding to Plaintiffs fall. Roth Dep. 38:20-24; 39:5-10.
Also present at the ShopRite was Plaintiffs boyfriend, Anthony Sofía. Pl.’s Br. in Resp. to Def.-GMS’s Mot. for Summ. J. ¶ 11. He was in the check-out line during the time of the incident and did not witness Plaintiffs fall. Id. ¶ 12. A store employee alerted Mr. Sofía to Plaintiffs fall, and he went to her aid. Id. ¶ 13. Mr. Sofia testified that he noticed the puddle of clear liquid when he arrived at Plaintiffs side and that there was at least one footprint in this puddle. Sofia Dep. 51:21-52:1, July 7, 2011. He could not testify as to when this footprint was made, however. Sofia Dep. 52:2-5, 9-13. Similar to Plaintiff, Mr. Sofia could not identify the cause of the liquid accumulation nor provide evidence of how long the liquid was on the floor. Sofia Dep. 23:1-5.
Also in the store that day was an employee of Defendant-Canada Dry, Sean Early. Pl.’s Br. in Resp. to Def.-GMS’s Mot. for Summ. J. 23. Mr. Early was in charge of stocking Canada Dry products at the ShopRite on the day of the incident. 3 Mr. Early states that during the course of his time at ShopRite that day he spilled a can of Sunkist soda and cleaned up this spill. Early Dep. 49:21-50:14.
Defendants separately moved for summary judgment arguing that they had no constructive notice of the hazardous condition in the aisle. And, because they had no constructive notice, they owed no duty to Plaintiff.
For the following reasons, the Court will grant Defendants’ motions for summary judgment.
III. DISCUSSION
A. Legal Standard
Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to
*435
judgment as a matter of law. Fed. R. Civ.P. 56(a). “A motion for summary judgment will not be defeated by ‘the mere existence’ of some disputed facts, but will be denied when there is a genuine issue of material fact.”
Am Eagle Outfitters v. Lyle & Scott Ltd.,
In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. “After making all reasonable inferences in the nonmoving party’s favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.”
Pignataro v. Port Auth. of N.Y. & N.J.,
B. Application
Defendants move for summary judgment. Both argue that the record is insufficient to show constructive notice of the hazardous condition 4 that caused Plaintiffs fall, as required under Pennsylvania law.
1. Negligence and Premises Liability
Under Pennsylvania law, 5 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.
Nw. Mut. Life Ins. Co. v. Babayan,
a. Duty of care: possessor of land
Defendant-GMS, as owner and operator of the ShopRite, was the possessor of the land on which Plaintiff allegedly sustained injuries. Pennsylvania courts have adopted the Restatement (Second) approach to determining the duty owed by a possessor of land to a person on its land.
See Kirschbaum v. WRGSB Assocs.,
*436
During the time that Plaintiff was shopping at ShopRite, she was an “invitee.”
See
Restatement (Second) of Torts § 382 (defining an “invitee” to include “a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land”). “Possessors of land owe a duty to protect invitees from foreseeable harm.”
Carrender,
b. Duty of care: independent contractor
Neither party presents argument as to what duty Defendant-Canada Dry owed to Plaintiff while its employee worked at ShopRite. To be sure, to the extent Defendant-Canada Dry caused the hazardous condition, it would owe a duty of reasonable care.
See Estate of Swift,
In sum, Defendants owed a duty of care to Plaintiff, who was a business invitee on Defendant-GMS’s land. Defendants only owed such a duty to Plaintiff, however, to the extent that they had “actual or constructive notice” of a dangerous condition on the land.
c. Notice
In this case, there is insufficient evidence that Defendants either caused the dangerous condition or had actual notice of the dangerous condition.
8
Summary judgment thus turns on the issue of construc
*437
tive notice. Courts rely on a multitude 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.”
Hagan v. Caldor Dep’t Stores, Inc.,
No. 89-7810,
“[0]ne of the most important factors to be taken into consideration is the time elapsing between the origin of the defect or hazardous condition and the accident.”
Neve v. Insalaco’s,
Normally, the “evaluation of these factors is within the province of the jury.”
Hagan,
2. Constructive Notice: Sufficiency of the Evidence
Plaintiff here presented evidence of the location of the spill, the duration of the liquid on the floor, and Defendant-GMS’s hazard monitoring procedures.
a. Location of the spill
It is undisputed that the spill occurred at the end of the freezer aisle. See Pl.’s Br. in Resp. to Def.-GMS’s Mot. for Summ. J., Ex. I (stating that spill occurred in front end of aisle). The location of the spill indicates that Defendants should have discovered the spill with reasonable diligence in a relatively short period of time; in other words, the duration of the spill required to put Defendants on constructive notice is more likely a matter of minutes than a matter of hours.
b. Duration of the spill
Under the facts of this case, the location of the spill alone does not create a genuine issue of material fact as to whether Defendants were on constructive notice. Sufficient evidence of the duration of the spill must also be offered.
Plaintiff points to several facts to support her assertion that the liquid Plaintiff slipped on was present for a duration sufficient to provide Defendants with constructive notice: (1) Defendant-Canada Dry’s pallet was in the area of Plaintiffs fall ten to twenty minutes before her fall; (2) Defendant-Canada Dry’s employee admitted to having spilled liquid, but cleaned the spill up in the same area as Plaintiffs fall; (3) dust was floating on the top of the liquid that caused Plaintiffs fall; and (4) *438 there were footprints in the liquid that caused Plaintiffs fall.
i. Defendant-Canada Dry’s pallet was in the same location as Plaintiffs fall
Plaintiff argues Defendants had constructive notice because there was a pallet in the same area as Plaintiffs fall ten to twenty minutes before her fall. See Pl.’s Br. in Resp. to Def.-GMS’s Mot. for Summ. J. 23. In this regard, Plaintiff relies upon the deposition testimony of store manager Mike Roth. Mr. Roth testified that Defendant-Canada Dry’s employee placed a pallet in about the same location as Plaintiffs fall and removed the pallet approximately ten to twenty minutes before Plaintiffs fall. Roth Dep. 40:4-11. Because of this fact, Mr. Roth testified that it was his assumption that the liquid on the floor came from this pallet. Roth Dep. 39:1-4. Mr. Roth, however, testified that he did not see any liquid when the pallet was in place. Roth Dep. 38:20-24, 39:5-10. Thus, Plaintiff argues that because the pallet and location of the spill were similar, and the time between the pallet’s removal and the fall was ten to twenty minutes, Defendants had sufficient notice of the liquid that caused Plaintiffs fall. Put another way, Plaintiff asks the Court to hold that the presence of a pallet in a similar location as a fall some time before Plaintiffs fall, without evidence that liquid could possibly come from the pallet, rises above the level of speculation that such pallet was the source of the spill. The Court finds this argument unconvincing.
Plaintiff attempts to rely upon the transitory position of the pallet as circumstantial evidence that Defendants had prior notice of the spill. In this regard, two slip and fall cases are instructive. In
Ryan v. Super Fresh Food Mkts., Inc.,
No. 99-1047,
In this case, there is no record evidence that anyone was present from the time the pallet was in the aisle to when the fall occurred. Therefore, there is no evidence to show that a spill could not have occurred mere seconds before Plaintiffs fall. The fact that Defendant-Canada Dry’s pallet was present some time before Plaintiffs fall, without more, is insufficient to rise above mere speculation that such pallet was the cause of the spill. Unlike, Ryan and Winters, were the courts could find enough circumstantial evidence from the presence of witnesses in the same location as the falls for many minutes, no such evidence exists here. All that is known is that at time X, a Canada Dry pallet was present in a similar location to Plaintiffs fall, and then at time Y, approximately ten to twenty minutes later, there was a puddle of liquid upon the floor and Plaintiff slipped and fell. There is no accounting for the interim between the pallet’s placement and Plaintiffs fall to allow the Court to infer that the spill was caused by the pallet. It is just as likely that the spill came from another source, mere seconds *439 before Plaintiffs fall. Therefore, the presence of Defendant-Canada Dry’s pallet some time before Plaintiffs fall is insufficient to show constructive notice.
ii. Defendant-Canada Dry’s spill of Sunkist soda
Plaintiff next argues that Defendant-Canada Dry’s employee spilled liquid near the location of her fall and that this evidence is sufficient to defeat summary judgment. Pl.’s Br. in Resp. to Def.GMS’s Mot. for Summ. J. 24. It is not. Defendant-Canada Dry’s employee stocking the ShopRite that day was Sean Early. Id. at 23. Mr. Early did stock the freezer aisle where Plaintiffs fall occurred. Early Dep. 40:22-41:1-5. Mr. Early stated in his deposition that a can of Sunkist soda spilled in that aisle, and he cleaned up this spill with Windex and paper towels. 49:21-50:14. Plaintiff contends that this is sufficient evidence, when coupled together with her other evidence, to defeat Defendants’ summary judgment motions. Pl.’s Br. in Resp. to Def.-GMS’s Mot. for Summ. J. 24. What Plaintiff fails to acknowledge is the uncontroverted evidence that Sunkist soda is orange in color while the liquid that caused Plaintiffs fall was clear. Early Dep. 47:21-22; Felix Dep. 40:2-20. The Court cannot comprehend how Mr. Early’s testimony should indicate that Defendants had notice of the clear liquid on the floor. Thus, Plaintiffs argument is without merit.
in. Presence of dust on liquid surface
Next, Plaintiff seems to argue that the presence of dust on the surface of the liquid is sufficient to show constructive notice. The Third Circuit in
Saldana v. Kmart Corp.,
In this case, Plaintiff testified that there were at most seven “dust balls” the size of half a pencil eraser present on the surface of the liquid. Felix Dep. 41:16-42:8. Similar to Saldana, Plaintiff offers no evidence of how long it would take for such dust to accumulate. Also similar to Saldana, there is no evidence that the dust balls were not the result of the fall itself. While Plaintiff here did offer some evidence of the amount of dust, the presence of at most seven small dust balls is insufficient to give rise to more than speculation that the liquid was present for sufficient time to put Defendants on notice. 9 Thus, the presence of dust here is insufficient to show constructive notice.
iv. Evidence of tracking
Finally, there is some indication that tracking in the spill occurred. Indeed, Plaintiffs boyfriend Anthony Sofia testified that when he arrived at the scene
*440
of the incident he noticed a footprint in the liquid. Sofia Dep. 51:21-52:1. Mr. Sofia could not provide any evidence as to when this footprint was made, however. Sofia Dep. 52:2-5, 9-18. While tracking evidence may be used in conjunction with other evidence to show duration, here, there is no indication as to when this footprint was made. Without some indication that the tracking occurred before Plaintiff fell, the jury could not discern whether this footprint was caused by another person before Plaintiffs fall, someone responding to Plaintiffs fall, or Plaintiffs fall itself.
See Craig v. Franklin Mills Assocs., L.P.,
c. Defendanb-GMS’s hazard monitoring procedures
Plaintiff also asserts that Defendant-GMS’s failure to monitor for spills is sufficient to defeat summary judgement. PL’s Br. in. Resp. to Def.-GMS’s Mot. for Summ. J. 21. Specifically, Plaintiff argues that Defendant-GMS did not have a policy in place to monitor for spills at set intervals. Id. Moreover, there was no evidence that anyone monitored for spills that day. Id. Such evidence, according to Plaintiff, is sufficient to defeat Defendants’ motions because it illustrates DefendanNGMS’s failure to use reasonable care with respect to its duty to business invitees. Id.
Initially, Plaintiff is incorrect that Defendants had no procedures for hazard monitoring. Mr. Roth testified that while ShopRite did not have a regimented monitoring system, it had several maintenance workers on the floors. See Roth Dep. 11:1-24. The duties of those workers included monitoring for spills and cleaning up any hazards. Roth Dep. 11:3-8. Therefore, while Mr. Roth could not testify as to whether, for certain, an employee had inspected the store at a certain time or even anytime that day, he did testify that continuous monitoring occurred within the store. Regardless, Plaintiffs argument as to whether Defendant-GMS’s actions were reasonable does not concern the Court at present.
Indeed, Plaintiffs argument as to Defendant-GMS’s lack of hazard monitoring skips a step within the negligence framework. In order for Defendants to fail to exercise reasonable care with respect to a duty, Defendants must owe a duty in the first place.
See Read v. Sam’s Club,
No. 05-170,
In contrast to this reasoning, Plaintiff relies on Thakrar v. Wegman’s Food Mkt., 75 Pa. D. & C.4th 437 (Pa.Ct.C.P.2004). In that case, the plaintiff slipped on a substance in the aisle of a supermarket. Id. at 438. The court there denied summary judgement and held that the defendant failed to abide by its policy of performing hourly sweeps of the aisles to look for spills. Id. at 442-43. More importantly, however, was the evidence that the liquid on the floor had begun to solidify, and that the substance that the plaintiff fell on was from an earlier spill that the defendant’s employees had already cleaned up. Id. at 441-42. Indeed, these employees testified that they had noticed drops of the substance on the floor several hours before the plaintiffs fall, but failed to clean them up. Id. at 442.
The facts in this case stand in contrast to Thakrar. Unlike the supermarket in Thakrar, Defendant-GMS did not have a regimented hourly sweep system. Roth. Dep. 11:1-24. Defendant-GMS had a more flexible system where employees would look for hazardous conditions while they went about their duties. Thus, there is inconclusive evidence that Defendant GMS did not monitor on that day. While it is true that the court in Thakrar considered the lack of sweeps as evidence that the defendant “should have known of the existence of the harmful condition,” the court took this evidence along with the evidence that the spill had existed for several hours before the plaintiffs fall. Thakrar, 75 Pa. D. & C.4th at 442-43. Here, more importantly than Defendant-GMS’s hazard monitoring procedures, there is no evidence that any employee saw the spill, knew the spill was there, or that the spill lasted for any duration. Accordingly, the Court finds that Defendant-GMS’s alleged lack of hazard monitoring procedures do not show constructive notice.
d. Spoliation inference
Last, Plaintiff attempts to overcome Defendants’ summary judgment motions by arguing for a spoliation inference. Pl.’s Br. in Resp. to Def.-GMS’s Mot. for Summ. J. 22-23. Specifically, Plaintiff argues that Defendant-GMS had surveillance camera evidence of the incident, but this footage was only after the incident occurred while Plaintiff was laying on the ground.
Id.
at 22. Therefore, Plaintiff argues, because there was evidence after the incident occurred, but no evidence before the incident to show, for example, the duration of the spill on the floor, Defendant-GMS must have destroyed or otherwise made this evidence unavailable.
Id.
A party may be entitled to a sanction if its adversary destroys or withholds evidence.
See Schmid v. Milwaukee Elec. Tool Corp.,
In this case, Plaintiffs argument fails to get off the starting line. For the Court to even entertain sanctions or some adverse inference due to spoliation there must be evidence that Defendant-GMS actually destroyed, suppressed, or withheld evidence from Plaintiff.
See Brewer v. Quaker State Oil Refining Corp.,
Plaintiff argues that because there was video of the incident after she fell, there must have been video of the same location before the fall. Therefore, as no such video was produced, Defendan1>-GMS must have destroyed, altered, or withheld this evidence. Plaintiffs argument is unavailing. There is no evidence that footage before Plaintiffs fall existed. As Mr. Roth’s testimony explains, while ShopRite does have video cameras in the store, some are stationary and some are not. Roth Dep. 53:3-15. Plaintiff has not provided evidence that the camera that captured Plaintiff after she fell was stationary and thus even capable of showing the floor before Plaintiffs fall. What is more, Mr. Roth indicated that the best person to contact would be a representative from the ShopRite loss prevention department. Roth Dep. 59:15-20; 63:8-16. There is no evidence that Plaintiff attempted to contact such person.
Thus, Plaintiff asks the Court to simply infer from the fact that a video was not produced that Defendants must have been at fault for this non-production. The Court will not make such an inference. Indeed, in cases that have addressed a spoliation inference, there was at least some evidence of actual destruction or non-compliance with a Court order to produce evidence.
See, e.g., Schmid,
e. Cases where no evidence of the duration of the spill was offered
At bottom, Plaintiffs evidence has shown only that a liquid substance was spilled in ShopRite, and that the spill existed for some indeterminate time before she slipped on it. There is no evidence of the duration of time that the spill existed.
Courts regularly dismiss claims supported by such scant evidence at the summary judgment stage.
See, e.g., Craig,
Here as well, in the absence of evidence, the jury can only guess how long the hazardous condition existed before Plaintiff slipped on this condition. Under such circumstances, the jury cannot be permitted to render a verdict based on “conjecture, guess or suspicion,” and the determination must be made by the Court.
Lanni,
IY. CONCLUSION
For the foregoing reasons, Defendants’ motions for summary judgment will be granted. An appropriate Order will follow.
Notes
. Plaintiff's Complaint incorrectly captions GMS, Zallie Holdings, Inc. as (1) ShopRite of Knorr Street; (2) ShopRite # 440; and (3) Zallie Supermarkets, Inc.
. In accordance with the applicable standard of review, see infra, the facts set forth in this section are viewed in the light most favorable to Plaintiff.
. Mr. Early’s testimony is somewhat contradictory. At first he states that he could not recall if he was working for Canada Dry stocking that day, but then does state that he was stocking for Canada Dry. Early Dep. 25:9-13, July 12, 2011. Given his recollection of events before and after Plaintiff's fall, it seems clear that Mr. Early was stocking the ShopRite on the day of Plaintiff’s fall. Early Dep. 25:20-24.
. The Court shall refer to the hazardous condition here generally as a spill for simplicity sake, as it is unclear from the record whether the liquid accumulation was from a spill or some other source.
. Pennsylvania law applies in this diversity action.
Erie R.R. Co. v. Tompkins,
. Indeed, Defendant-Canada Dry in its motion for summary judgment seems to concede that it could owe a duty to Plaintiff if Plaintiff could show notice of a hazardous condition. Def.-Canada Dry's Mot. for Summ. J. ¶ 30, ECF 19.
. It seems Defendant-Canada Dry could be considered an independent contractor for purposes of imposing a duty. The Pennsylvania Supreme Court adopted section 383 of the Restatement (Second), which states:
One who does an act or carries on an activity upon land on behalf of the possessor is subject to the same liability ... for physical harm caused thereby to others upon and outside of the land as though he were the possessor of the land.
Restatement (Second) of Torts § 383;
see Felger v. Duquesne Light Co.,
. Plaintiff argues that Defendant-Canada Dry caused the dangerous condition. See PL’s Br. in Resp. to Def.-Canada Dry’s Mot. for Summ. J. 14-16, ECF 22. The evidence for this argument is two fold. First, Canada Dry was working in the aisle where Plaintiff fell and *437 had a pallet in that aisle. Id. at 15. Therefore, as Plaintiffs argument goes, it was the pallet that caused the liquid to be on the floor. Id. Second, Plaintiff attempts to bolster this argument with the deposition testimony of ShopRite manager Mike Roth. Mr. Roth testified that it was his belief that Defendant-Canada Dry caused the spill. Roth Dep. 37:7-12. Mr. Roth also testified, however, that this belief was an assumption based upon the fact that Defendant-Canada Dry had a pallet in the same aisle some ten to twenty minutes before Plaintiff's fall. Roth Dep. 39:1-4. The Court finds this scant evidence insufficient for a reasonable jury to conclude that Canada Dry caused the spill. There is no evidence that Defendant-Canada Dry’s pallet was leaking, or even capable of producing a clear liquid. Without more, the jury would be left to guesswork as to the cause of the spill.
. Indeed, in
Saldana,
the evidence was that a layer of dust was on the surface of the spilled wax.
See Saldana,
. The Pennsylvania Supreme Court adopted this three factor test in
Schroeder v. Commonwealth,