MEMORANDUM
Plaintiff, Helen Galullo (“Galullo”), has filed the instant action seeking to recover for injuries she sustained after she allegedly slipped and fell on a letterpack
1
which she
1. BACKGROUND
The incident which led to the present action occurred on November 16,1994. At that time, Galullo, who is now 86 years of age, resided with her daughter, son-in-law, and granddaughter in Collegeville, Pennsylvania. On the morning in question, Galullo was home alone and sitting at her kitchen table drinking coffee. At approximately 10:00 a.m. she heard a single loud knock on the side door which separated the kitchen from a two-car garage. The door was located approximately ten (10) to fifteen (15) feet from where she was seated. Galullo immediately went to the door and opened it to see who had knocked. When nobody was present аnd she heard nothing to indicate who had knocked, she stepped down into the garage and fell when her right foot slipped out from under her. Galullo sustained serious injuries from her fall and was unable to move until approximately 4:00 p.m. when her daughter returned home from work. Galullo subsequently filed the instant action claiming that Federal Express was negligent in delivering the letterpack to her home. 3
II.STANDARD
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “if there is no genuine issue as to any material fact and the moving pаrty is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party has the initial burden of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett,
III.DISCUSSION
In order to establish a prima facie claim for negligence under Pennsylvania law,
4
a plaintiff must show (1) a duty or obligation, recognized by law, requiring the defendant to conform to a certain standard of conduct; (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 to the interests of another.
Morena v. South Hills Health Sys.,
Under Pennsylvania law, causation involves
both
cause in fact (or physical cause) and proximate (or legal) cause. There is much confusion regarding the concept of causation because the term “proximate cause” is often used to embody both cause in fact and legal cause.
5
However, cause in fact and
Proximate cause, on the other hand, assumes the presence of cause in fact and serves as a means by which courts are able to place practical limits on liability as a matter of policy.
Wisniewski v. Great Atl. & Pac. Tea Co.,
As discussed above, the plaintiff bears the burden of establishing causation and must do so by a preponderance of the evidence:
The quantum of proof necessary to warrant a jury verdict for the plaintiff is, as we have stated earlier, ... a preponderance of the evidence. This is made clear in Comment (a) to Section 433B of the Restatement [ (Second) of Torts]:
a. Subsection (1) states the general rule (that the burden of proof as to causation is on the plaintiff). As on other issues in civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance of the evidence. This means that he must make it appear that it is more likely than not that the conduct ofthe defendant was a substantial factor in bringing about the harm.
Hamil,
A. Plaintiffs Evidence of Causation
During her deposition, Galullo initially testified that she slipped on a “slippery envelope” as indicated below:
Q. When you got to the garage door, what happened next?
A. Well, I opened the door and I thought I was going to see the man there. There was nobody there, so when I put my foot down here, I put my foot down on this slippery envelope — I didn’t think about the envelope. It didn’t bother me. The enveloрe went under the tractor and I just laid there and tried to get up and tried to get up and I couldn’t budge.
(Galullo Dep. at 38). However, after further questioning, Galullo conceded that she had no personal knowledge of what caused her to fall:
Q: At what point did you first see the package?
A: I didn’t see it, I felt it. I told my daughter, I says, look I stepped on something, I told her. I told her I said, look for it. I guess it was after when I was in the hospital — I don’t know how it was, I asked her and she said it was an envelope, remember. She said it was an envelope. I said that’s what I stepped on, I says, because I could feel it, it was wet.
Q: So as you laid there that morning, you never did actually see the package?
A: No. I knew I felt it though under my foot.
Q: What did it feel like?
A: Something wet.
Q: Can you describe it in any more detail than that?
A: No.
Q: So it felt like something wet?
A: That’s right.
Q: Did you feel any size or width to whatever it was you stepped on?
A: The only thing was when I was laying there that day all that dampness coming in on me, the water coming, dampness coming. The house was wide open. What a mess.
Q: But going back to when you stepped out with your right foot, you said it felt wet. Did it feel any—
A: I couldn’t move it.
Q: Let me rephrase my question. As you stepped out with your right foot, you said you could feel something wet. Whatever you stepped on, did it have a size to it that you could feel?
A: No, it was just plain.
Q: Did yоu ever see the package? Did anybody ever show it to you?
A: No.
Q: So you’ve never seen the package?
A: No.
(Galullo Dep. at 43-46) (emphasis added). As indicated above, Galullo has no personal knowledge of what she slipped on other that it “felt” like “something wet.” In addition, Galullo stated that the reason she believed that she slipped on the letterpack was because that is what her daughter had told her. Id. at 43.
In an attempt to establish that the letter-pack caused her fall, Plaintiffs counsel relies on a statement Galullo allegedly made to her daughter, Carol Saydah (“Saydah”). In describing what she encountered upon arriving home from work, Saydah testified as follows:
A. I first noticed my mother and I went over to her and I started to put my arm around her neck and she said — and I said what happened? What happened? She said can’t you see what happened, I slipped on that envelope and I broke my leg. I said what envelope? She said the one out in the garage and I went out and I looked and I found it under the tractor.
(Saydah Dep. at 39). Defendant Federal Express argues that the statement by Galullo to her daughter is inadmissible hearsay falling within no exception and, therefore, can
First, Federal Express contends that the alleged statement cannot be considered an admission by a party opponent under F.R.E. 801(d)(2) because the statement is not being offered against Saydah, the party uttering the statement.
See United States v. Phelps,
Therefore, on the record before the Court, Galullo has offered no direct evidence that the letterpack at issue caused her injuries. Moreover, it is beyond question that the mere happening of an accident is not evidence or proof of negligence on the part of anyone.
See Markovich v. Bell Helicopter Textron, Inc.,
What is required is evidence, which means some form of proof; and it must be evidence from which reasonable persons may conclude that, upon the whole, it is more likely that the event was caused by negligence than it was not. As long as the conclusion is a matter of mere speculation or conjecture, or where the probabilities are at best evenly balanced between negligencе and its absence, it becomes the duty of the court to direct the jury that the burden of proof has not been sustained.
W.P. Keeton et al.,
Prosser and Keeton on Torts
§ 39, at 242 (5th ed. 1984);
see Farnese v. Southeastern Pennsylvania Transp. Auth.,
In the present action, Galullo seems to argue that she slipped on the letterpack because it was later found under a tractor in the garage, approximately ten feet (10') from where she fell. Galullo has presented no other circumstantial evidence that the letter-pack caused her injuries other than stating that what she slipped on “felt” like “something wet.” However, there is also evidence that she may have slipped on something other than the letterpack. For example, Galul-lo’s daughter testified that when she arrived home that afternoon, one of the garage doors was open, the wind was blowing and there were wet leaves in the area where her mother fell. (Saydah Dep. at 25). There was also testimony that on the floor below the door where Galullo fell there was a “worn down braided type of rug that was always there for many years” which was “not very thick.” Id. at 34. This rug was positioned so that when someone stepped out of the doorway they would have to step on the rug. Id. at 35.
Thus, the record presently before the Court indicates that there are several equally plausible possibilities as to what caused Gal-ullo’s fall: (1) she could have slipped on the letterpack; (2) shе could have slipped on wet leaves; or (3) she could have slipped on the rug. Galullo has no personal knowledge of
Pennsylvania сourts have long held that a jury is not permitted to speculate or guess since conjecture, guess or suspicion do not amount to proof.
Cuthbert,
In the ease of
Houston v. Republican Athletic Assoc.,
In the absence of any direct proof as to the manner in which the accident occurred, the burden was on appeUant to produce evidence of circumstances so strong as to preclude the possibility of injury in any other way and provide as the only reasonable inference the conclusion that her husband’s death was caused by the neghgence of appellees in the manner adeged.
While it may be that the appellant’s hypothesis as to the cause of this regrettable accident is a plausible one, for ad that appears from the evidence, the circumstances relied upon are at least equaEy consistent with theories of the case attributing the accident to a variety of causes, not excluded by the evidence, for none of which any of appeUees could conceivably be held hable, as the court below has pointed out, including the possibility that the deceased may simply have tripped or stumbled, without such tripping or stumbling having any connection whatever with the defects in the steps complained of. Under these circumstances, a finding that the fatal injuries of appellant’s husband resulted from the negligence adeged would, at most, represent nоthing but a mere guess or conjecture; hence, a verdict for appedant could not be sustained. Where a defendant is hable for only one of two or more equady probable causes and to say which is a mere guess, there can be no recovery.
Id.
Similarly, in the case of
Watkins v. Sharon Aerie No. 327 Fraternal Order of Eagles,
Mrs. Watkins was 73 years old and had suffered a stroke three years previously. She may have shpped or lost her balance through no fault of the defendant, or she may have tripped over her own foot, or she may have become dizzy. In any event, plaintiff failed to prove that her fad and injury was due to some particular negh-gence of the defendant — what caused herto fall could only be a guess, and that is not sufficient to take a case to the jury.
Id.
The Third Circuit Court of Appeals recently addressed the issue of a plaintiffs burden regarding causation in the ease of
Fedorczyk v. Caribbean Cruise Lines,
The expert’s opinion was stricken by the district court since it was based on pure speculation and not on any direct or circumstantial evidence of where plaintiff was standing when she fell. The district court granted defendant’s motion for summary judgment, holding that plaintiff failed to produce any evidence that defendant’s failure to provide adequate abrasive strips in its bathtub was the proximate cause of plaintiffs injuries. In affirming, the Third Circuit stated that, without any evidence tending to show where plaintiff was standing when she fell, a jury would be left to speculate as to whether defendant’s admitted failure to adequately strip the bathtub caused plaintiffs injuries. The Court concluded that: “[a] mere possibility of such causation is not enough; and when the matter remains one оf pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”
Fedorczyk,
Like the plaintiff in Fedorczyk, Galullo has presented no evidence tending to prove that it was the letterpack which caused her to fall. Galullo stated that she slipped on “something wet” and assumes that it must have been the letterpack which was later found under a tractor, approximately ten (10) to fifteen (15) feet from where she fell. This is nothing more than pure speculation and conjecture. Furthermore, it is just as likely that Galullo slipped on wet leaves or the rug at the foot of the door. Without any evidence as to what caused her fall, a jury would be left to speculate whether the letterpack was the cause in fact of her injuries and such speculation by a jury is not permitted.
B. Foreseeability
Even assuming that Galullo can establish that it was the letterpack on which she slipped, summary judgment is warranted because Federal Express’ courier exercised ordinary care as a matter of law.
In Pеnnsylvania, whether a defendant owes a duty of care to a plaintiff is a question of law.
See Kleinknecht v. Gettysburg College,
In
Schell v. United Parcel Serv.,
In granting defendant’s motion for summary judgment, the Ohio court concluded:
Our law does not deny reward to those people who increase productivity by more efficient operation that does not increase any known or present danger.
Viewing now the Ohio law of negligencе in the circumstances of this case, this court must conclude that defendants are entitled to summary judgment because plaintiffs have not shown facts from which reasonable minds might conclude that defendants failed to use ordinary care in delivering a gift package to plaintiffs’ doorstep. There is not the slightest showing that [defendant’s courier], in following his employer’s instructions, did any act or failed to do any act that a reasonably careful person would have foreseen as likely to injure, or even endanger, anyone; nor is thеre any showing that defendants did anything in violation of any statute or rule. Consequently, reasonable minds must conclude that defendants are free from any negligence, i.e., any failure to use ordinary care to avoid injury to plaintiff wife, and cannot be charged with liability to plaintiffs.
Schell,
Like the Schell case, the Federal Express courier left the letterpack without obtaining the recipient’s signature pursuant to the company’s “signature release” procedures. Furthermore, the court in Schell found no showing that such a policy was likely to endanger anyone. “No person can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.” W.P. Keeton et al., Prosser and Keeton on Torts § 31, at 170-71 (5th ed. 1984). The same is true in the present action — there has been no showing that in following Federal Express policy the courier did any act or failed to do any act that a reasonably careful person would have foreseen as likely to injure or even endanger anyone. Nevertheless, even if it was foreseeable that there was a risk of someone slipping on the letterpack at issue, I find such a risk to be slight and far outweighed by the social value of Defendant’s released-package procedures.
IV. CONCLUSION
Galullo has presented no evidence tending to prove what caused her fall and a jury would be left to speculate that she slipped on the letterpack at issue. As discussed above, a jury is not permitted to do so. In addition, the risk of someone slipping as a rеsult of Defendant’s released-package procedure is not an unreasonable risk as a matter of law. In viewing all reasonable inferences in favor of Galullo, I find that she is unable to create a material issue of fact as to causation — an essential element of her negligence claim. Accordingly, summary judgment will be entered in favor of Defendant.
Based on the foregoing, I shall enter the following Order:
AND NOW, this 24th day of June, 1996, upon consideration of Defendant Federal Express Corporation’s Motion for Summary Judgment, and the response thereto, it is hereby ORDERED that said Motiоn is GRANTED. Judgment is entered in favor of Defendant and against Plaintiff.
Notes
. A letterpack is a thin 9" by 12" envelope that Federal Express uses to transport documents.
. Oral argument on Federal Express’ Motion was heard by this Court on May 17, 1996.
. The letterpack at issue was addressed to Jane Saydah, Galullo's granddaughter.
. The parties agree that Pennsylvania law applies in this diversity action.
.The Pennsylvania Supreme Court has admitted difficulty in explaining the concept of causation:
One could wish that the pronouncement of this Court on the subject over the years had been somewhat more lucid, more consistent, more forthright; had distinguished between cause in a factual or "philosophic” sense andproximate or legal cause; had acknowledged that the concept, like that of negligence itself, was designed not only to permit recovery for a wrong, but to place such limits on liability as are deemed socially or economically desirable from time to time.
Whitner v. Lojeski,
. The Pennsylvania Supreme Court has explained:
Whether the issue is discussed in terms of “proximate cause” or “legal cause” the underlying considerаtions and the result are the same. Under the older and more traditional approach the issue was whether the defendant's conduct was a proximate cause or a remote cause. Under the Restatement approach the issue is whether the defendant's conduct was, on the one hand, a "substantial factor” or a "substantial cause” or, on the other hand, whether the defendant’s conduct was an "insignificant cause” or a "negligible cause.” See Section 431, Restatement of Torts, (Second). The determination of thе issue simply involves the making of a judgment as to whether the defendant's conduct, although a cause in the “but for” sense is so insignificant that no ordinary mind would think of it as a cause for which a defendant should be held responsible.
Ford v. Jeffries,
. This section provides that:
The actor's negligent conduct is a legal cause of harm to another if—
(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in harm.
See
Restatement (Second) of Torts § 431 (1965);
Whitner,
. The package was approximately ten inches (10") by twelve inches (12") by two inches (2") and contained two and one-half {2'/i) pounds of cheese.