RODNEY MCCLURE, et al., Plaintiffs v. LOVE‘S TRAVEL STOPS & COUNTRY STORES, d/b/a LOVE‘S, Defendant
No. 1:21-cv-00334
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
May 23, 2023
(Judge Kane)
In the above-captioned action, Plaintiff Rodney McClure (“Plaintiff McClure“) asserts a negligence claim against Defendant Love‘s Travel Stops & Country Stores, Inc., d/b/a Love‘s (“Defendant” or “Loves“) stemming from a slip and fall accident on October 18, 2019. (Doc. No. 1-2.) Plaintiff McClure‘s spouse, Dorothy Swint (“Plaintiff Swint,” and, with Plaintiff McClure, “Plaintiffs“) also asserts a derivative claim of loss of consortium against Defendant. (Id.) Before the Court is Defendant‘s motion for summary judgment. (Doc. No. 25.) For the reasons that follow, the Court will grant Defendant‘s motion.
On October 18, 2019, Plaintiff McClure pulled his tractor trailer into the parking lot of the Love‘s store located in Middletown, Pennsylvania, to purchase fuel and food. (Doc. No. 26 ¶ 1; Doc. No. 31 ¶ 1.) Plaintiff McClure testified in his deposition that it was not raining. (Doc. No. 26 ¶ 2; Doc. No. 31 ¶ 2.) Plaintiff McClure entered and exited Love‘s without any problem before the accident. (Doc. No. 26 ¶ 3; Doc. No. 31 ¶ 3.) Plaintiff McClure did not see any type of liquid on the ground where he fell while entering and exiting the store before the accident. (Doc. No. 26 ¶ 4; Doc. No. 31 ¶ 4.)
After fueling his tractor trailer, Plaintiff McClure retrieved an empty cup from his truck and returned to the store. (Doc. No. 26 ¶ 5; Doc. No. 31 ¶ 5.) Using the same entrance that he had previously used to enter and exit the store, Plaintiff McClure entered the store and fell. (Doc. No. 26 ¶ 6; Doc. No. 31 ¶ 6.) Defendant asserts that Plaintiff McClure testified that he did not know what caused him to fall. (Doc. No. 26 ¶¶ 7-8.) Plaintiff McClure clarifies that he only does not know the identity of the particular substance that caused him to fall, and maintains that Jeffrey Rovenolt, Love‘s Operations Manager, wiped a black, foreign substance from the ground
After Plaintiff McClure fell, he felt the floor with his hands but does not recall seeing anything in the area where he fell. (Doc. No. 26 ¶ 9; Doc. No. 31 ¶ 9.) After falling, Plaintiff McClure also pointed to the entryway he used to enter Love‘s, although he cannot explain why he pointed there. (Doc. No. 26 ¶ 10; Doc. No. 31 ¶ 10.) Plaintiff McClure testified that he went to the bathroom after he fell, and that upon returning to the location of his fall, did not recall seeing anything there. (Doc. No. 26 ¶ 11; Doc. No. 31 ¶ 11.) Mr. Rovenolt testified that he examined the area where Plaintiff McClure fell and found that the floor was not slippery in this location. (Doc. No. 26 ¶ 12; Doc. No. 31 ¶ 12.)
Mr. Rovenolt testified that he did not clean up a black substance off the floor. (Doc. No. 26 ¶ 13; Doc. No. 31 ¶ 13.) By contrast, Plaintiff McClure testified that Mr. Rovenolt told him after he fell that there was something black on the floor. (Doc. No. 26 ¶ 14; Doc. No. 31 ¶ 14.) Plaintiff McClure admitted that he did not see any black substance in the piece of the napkin, towel, or paper that Mr. Rovenolt used to wipe the floor. (Doc. No. 26 ¶ 15; Doc. No. 31 ¶ 15.)
Plaintiff McClure does not have any information or facts showing how long the alleged slippery substance was on the floor in the area where he fell prior to the accident or how long the area was slippery. (Doc. No. 26 ¶ 16; Doc. No. 31 ¶ 16.) Plaintiff McClure admitted that he “wouldn‘t know” if the area where he fell was slippery at the time of his fall. (Doc. No. 26 ¶ 17; Doc. No. 31 ¶ 17.) According to Plaintiff McClure‘s AFC Urgent Care Cleveland Record from the day after the accident, October 19, 2019, Plaintiff McClure advised a doctor that he slipped
Plaintiffs initiated the above-captioned action in a Pennsylvania state court on January 29, 2021, asserting two tort claims: negligence, resulting in injuries to Plaintiff McClure (Count I), and loss of consortium, resulting in injuries to Plaintiff Swint (Count II). (Doc. Nos. 1 ¶ 1; 1-2 at 7-10.) Defendant removed this action to federal court on February 24, 2021, invoking this Court‘s diversity jurisdiction under
Defendant filed the pending motion for summary judgment on September 20, 2022 (Doc. No. 25), with a statement of material facts (Doc. No. 26). Defendant filed a brief in support of its motion on October 3, 2022. (Doc. No. 30.) On October 13, 2022, Plaintiffs filed a brief in
II. LEGAL STANDARD
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Where the moving party does not bear the burden of proof on a particular issue at trial, it may simply “poin[t] out to the district court [] that there is an absence of evidence to support the nonmoving party‘s case,” and need not “produce evidence showing the absence of a genuine issue of material fact.” See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has shown that there is an absence of evidence to support the non-moving party‘s claims, “the non-moving party must rebut the motion with facts in the record
III. DISCUSSION
Under Pennsylvania law,3 a plaintiff asserting a negligence claim must establish: (1) a duty requiring the defendant to conform to a certain standard of conduct; (2) failure by the defendant to observe that standard; (3) an injury which is proximately and actually caused by the defendant‘s failure to observe that standard; and (4) damages. See Brown v. Philadelphia Coll. of Osteopathic Med., 760 A.2d 863, 868 (Pa. Super. 2000). Defendant argues that it is entitled to summary judgment as to Plaintiff McClure‘s negligence claim because he cannot identify the cause of his fall and because he has failed to adduce sufficient evidence to establish that it owed
A. Applicable Legal Standard
The duty that a defendant owes to a plaintiff depends on the relationship of the parties. See Alumni Ass‘n, Delta Zeta Zeta of Lamdi Chi Alpha Fraternity v. Sullivan, 535 A.2d 1095, 1098 (Pa. Super. 1987). The parties agree that Defendant is a business owner and that Plaintiff McClure is an invitee. The Second Restatement of Torts describes the duty owed by a business owner to an invitee under Pennsylvania law. See Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1193 (Pa. Super. 2015) (quoting Restatement (Second) of Torts § 343 (1965)). Under the Second Restatement of Torts, a business owner owes a duty to warn invitees about hazardous conditions about which it has actual or constructive notice.4 See Felix v. GMS, Zallie Holdings, Inc., 827 F. Supp. 2d 430, 436 (E.D. Pa. 2011); Estate of Swift v. Ne. Hosp. of Phila., 690 A.2d 719, 723 (Pa. Super. 1997).
“Actual notice is ‘notice given directly to, or received personally by, a party,‘” meaning “the plaintiff must demonstrate that the defendant knew of the hazardous condition and not merely that the defendant should have known of the condition.” See Watson v. Bos. Mkt. Corp., No. 17-cv-05648, 2019 WL 1359739, at *3 (E.D. Pa. Mar. 26, 2019) (quoting Torres v. Control Bldg. Servs., No. 09-cv-00178, 2010 WL 571789, at *2-3 (E.D. Pa. Feb. 16, 2010)). Actual notice can be inferred “where the [hazardous] condition is one which the owner knows has frequently recurred.” See Porro v. Century III Assocs., 846 A.2d 1282, 1286 (Pa. Super. 2004);
Constructive notice, by contrast, can be inferred where the business owner should have known—but did not actually know—about the hazardous condition that resulted in the invitee‘s injury. See Aiello v. Chester Downs, LLC, No. 2:20-cv-06032, 2021 WL 3022438, at *4, *6 (E.D. Pa. July 15, 2021). “What will amount to constructive notice of a defective or dangerous condition existing upon a defendant‘s premises, necessarily varies under the circumstances of each case.” Bremer v. W. W. Smith, Inc., 191 A. 395, 397 (Pa. Super. 1937). Courts consider the following factors identified by the Pennsylvania Superior Court in Bremer v. W. W. Smith, Inc. (“Bremer factors“) when making this determination: “the size and physical condition of the premises, the nature of the business conducted thereon, the number of persons using the premises and the frequency of such use, the nature of the defect and its location on the premises, its probable cause and the opportunity which defendant, as a reasonably prudent person, had to remedy it.” See id. Although “[t]he evaluation of these factors” is normally “within the province of the jury,” see Felix, 827 F. Supp. 2d at 443 (quoting Hagan v. Caldor Dep‘t Stores, Inc., No. 89-cv-07810, 1991 WL 8429, at *4 (E.D. Pa. Jan. 28, 1991)), a jury cannot infer constructive notice “[w]ithout any evidence that the [hazardous condition] was observable for any significant period of time prior to the accident,” see Tameru v. W-Franklin, L.P., 350 F. App‘x 737, 740 (3d Cir. 2009) (unpublished) (citing Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001); see also Saldana, 260 F.3d at 232 (discussing the requirements for constructive
B. Arguments of the Parties
Defendant argues that it is entitled to summary judgment because Plaintiff McClure cannot establish that it had actual or constructive notice of any dangerous or hazardous condition on its premises. Plaintiff McClure, by contrast, argues that there is a genuine dispute of material fact as to these issues. Plaintiff McClure also asserts a third argument as to why Defendant‘s motion should be denied: it failed to affirmatively maintain its premises. These arguments are summarized below.
Defendant contends that Plaintiff McClure cannot establish actual notice because he “fails to establish a material fact of a slippery . . . substance‘s frequency” on its premises. (Doc. No. 33 at 10). Plaintiff McClure disagrees, arguing he has presented sufficient evidence, see infra, Section III.C.1, from which a reasonable jury could conclude that the slippery substance that caused his fall was a frequently recurring condition. (Doc. No. 31 at 12.) He also argues that this case is analogous to Falcone v. Speedyway, an unpublished decision from the Eastern District of Pennsylvania denying a motion for summary judgment on actual notice grounds. See 2017 WL 220326, at *3.
2. Constructive Notice
Defendant argues that Plaintiff McClure cannot “show a genuine dispute of material fact” on the issue of constructive notice because he has not offered any evidence that establishes how long the slippery condition resulting in his fall was present on its premises. (Id. at 11.) Plaintiff McClure disagrees, contending that Defendant should have known about the slippery condition on its premises because it is undisputed that the area where the foreign substance was found “wasn‘t inspected for at least 4 hours and 21 minutes prior to the incident.” (Doc. No. 32 at 13.) Plaintiff McClure also analogizes to Krick v. Giant Food Stores, LLC, No. 16-cv-01734, 2018 WL 1518804 (E.D. Pa. Mar. 28, 2018), in which a district court concluded that there was a genuine dispute of material fact on the issue of constructive notice based on its evaluation of the Bremer factors. (Id. at 12-13.)
3. Defendant‘s Duty to Maintain its Premises
Plaintiff McClure also asserts an independent reason for denying Defendant‘s motion: there is a genuine dispute of material fact “regarding whether Defendant made an affirmative
C. Analysis
1. Actual Notice
As discussed above, when the party moving for summary judgment does not bear the burden of proving a particular issue at trial, it can show that there is no material dispute of fact by “pointing out to the district court [] that there is an absence of evidence to support the nonmoving party‘s case.” See Celotex, 477 U.S. at 325. Plaintiff McClure, as an invitee, bears the burden of proving actual notice at trial. See Neve v. Insalaco‘s, 771 A.2d 786, 791 n.5 (Pa. Super. 2001) (explaining that “an invitee can satisfy th[e] burden” of showing that a “proprietor deviated from the duty of reasonable care” by “establishing . . . that the proprietor had actual notice of it“). Accordingly, Defendant‘s contention that Plaintiff McClure has failed to produce any evidence indicating that the slippery substance that caused his fall was a frequently recurring condition sufficiently “poin[ts] out” to this Court that there is no genuine issue for trial. See Celotex, 477 U.S. at 325. With this in mind, the Court turns to whether Plaintiff McClure, the non-moving party, has offered “specific facts to show that, to the contrary, a genuine issue of
Plaintiff McClure argues that the following testimony shows that Defendant “knew there was a frequent tendency for there to be slippery substances at the entrance to the store on the area of exposed tile, particularly oil and diesel fuel“:
- “Mr. Rovenolt testified that there was a concern that customers and employees could track diesel fuel or motor oil on the underneath of their shoes into the store [and that] there was probably a higher likelihood of oil on the ground outside of the entrance that [Plaintiff] used“;
- “Another manager, Chris Brown, testified that in his experience, it is more likely that the diesel section of the store would have oil or greasy substances on the floor from the shoes and boots of commercial vehicle drivers as opposed to the gas portion of the store“;
- “The manager of the tire shop, Donald Barkey, was asked whether it was common to find oil on the ground outside of the diesel entrance, and he testified, ‘Sometimes. I won‘t say really so much oil as diesel fuel, and I know diesel fuel can be slick, but at the same time, you know, you get 30 trucks running through 1 lane during the day. Some guys overfill their tanks, and then it‘s dripping off their tanks, but . . . [i]t‘s not something that we would have to keep running out to keep, you know, power washing those areas‘“;
- “The cashier on duty at the diesel desk at the time of this incident, Taysha Hernandez, was asked whether it was more likely for oil or grease to be on the floor in the diesel area of the store and she testified, ‘Yeah. Definitely.‘“; and
- “Ms. Hernandez also recalled two or three incidents of employees slipping and falling directly inside the door the Mr. McClure entered before his fall due to water on the floor.”
(Doc. No. 32 at 11-12.)5
In reaching this conclusion, the Court rejects Plaintiff McClure‘s argument that this case is analogous to Falcone v. Speedyway. See 2017 WL 220326, at *3. In Falcone, the plaintiff purportedly slipped and fell because of a fuel spill. See id. The Falcone court denied the defendant‘s motion for summary judgment on actual notice grounds because of evidence indicating that it “undoubtedly had some knowledge of the danger and frequency of fuel spills.” See id. To this end, the Falcone court found relevant an employee‘s testimony that she was aware that “there were recurring gasoline spills in the parking lot” at the rate of “a few times every month” as well as a safety checklist which instructed employees that “there should be ‘[n]o gasoline or oil spills‘” in the area where the plaintiff fell. See id. The safety checklist further required “employees to check a box labeled either ‘acceptable’ or ‘unacceptable,’ depending on the presence or lack thereof of gas or oil spills.” See id.
No comparable evidence has been adduced in this case. First, as discussed above, Plaintiff McClure does not offer any testimony describing the frequency with which the hazardous condition resulting on Defendant‘s premises recurred. Second, the evidence in Falcone suggested that the defendant took specific precautions to prevent the very hazard that
2. Constructive Notice
Because Defendant does not bear the burden at trial of proving constructive notice, see Neve, 771 A.2d at 791, its argument that Plaintiff McClure has failed to offer evidence establishing constructive notice sufficiently “poin[ts] out” to this Court “that there is an absence of evidence to support the nonmoving party‘s case,” see Celotex, 477 U.S. at 325. Accordingly, the Court turns to whether Plaintiff McClure has offered “specific facts to show that, to the contrary, a genuine issue of material fact exists for trial.” See Fado, 2016 WL 3912852, at *3.
To meet this burden, Plaintiff McClure offers some evidence in support of the Bremer factors and argues that Defendant did not sweep the floor during a 4 hour and 21 minute period before he entered the store. (Doc. No. 32 at 12-13.) However, he fails to adduce evidence that describes how long the slippery substance that caused his fall was present on Defendant‘s premises. Nor can he—conceding that he does not have any information or facts showing (1)
3. Defendant‘s Duty to Maintain its Premises
Plaintiff McClure‘s argument that there is a genuine dispute of material fact “regarding
First, unlike the present case, Rodriguez and Falcone involved issues about the spoliation of evidence. Specifically, the Pennsylvania Superior Court‘s decision in Rodriguez—on which Falcone‘s analysis is based, see Falcone, 2017 WL 220326, at *6 & *6 n.4—concluded that there was an “open question about spoliation” because the defendants failed to produce records showing whether employees complied with internal cleaning schedules. See Rodriguez, 111 A.3d at 1196. The Rodriguez court held that the potential spoliation issue meant that there was an “open possibility that the [defendants‘] employees failed to check the floors as scheduled prior to [the plaintiff‘s] fall,” meaning the defendants were not entitled to judgment as a matter of law. See id. Here, by contrast, Plaintiff does not advance a spoliation argument. On the contrary, he concedes that “Love‘s has produced task lists which indicate that the entrance was inspected at some point between 8:00 a.m. and 4:00 p.m.,” consistent with its cleaning schedule. (Doc. No. 32 at 14.) And though Plaintiff McClure contends that “the video surveillance clearly demonstrates that [the store] was not inspected at any point between 12:00 p.m. and 4:21 p.m. when Mr. McClure fell” (id.), he does not present any grounds from which to conclude that Defendant failed to inspect its premises between 8:00 a.m. and 12:00 p.m. Accordingly, there is no “open possibility that [Defendant‘s] employees failed to check the floors as scheduled” in this case. See Rodriguez, 111 A.3d at 1196.
In reaching this conclusion, the Court recognizes that the plaintiff in Rodriguez survived the defendants’ motion for summary judgment—despite failing to present evidence about the duration of the hazardous condition that caused his fall—based on the issue of whether the defendants affirmatively maintained the store‘s premises. See Rodriguez, 111 A.3d at 1194, 1196. But as noted above, the Rodriguez court denied the defendants’ motion on affirmative-duty grounds because there was a dispute about the possible spoliation of evidence—an issue absent from the present case. See also Crawford v. Grocery Outlet Bargain Mkt., 283 A.3d 384 (Pa. Super. 2022) (unpublished table decision) (explaining that “[i]n Rodriguez, a panel of this
As Plaintiff McClure has failed to adduce sufficient evidence to establish that Defendant owed him a duty as a matter of Pennsylvania law, the Court need not address Defendant‘s argument that Plaintiff McClure cannot identify the cause of his fall.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Defendant‘s motion for summary judgment as to Plaintiff McClure‘s Count I negligence claim. Because Plaintiff McClure‘s negligence claim fails as a matter of law, the Court will also dismiss Plaintiff Swint‘s Count II loss of consortium claim, which “is derivative of, and thus rises and falls with, [her] injured spouse‘s underlying tort claim.” See Bixler v. Lamendola, No. 3:20-cv-01819, 2022 WL 2441567, at *5 (M.D. Pa. July 5, 2022); see, e.g., Pusey v. Becton Dickinson & Co., 794 F. Supp. 2d 551, 566 (E.D. Pa. 2011) (noting that “because we grant summary judgment with respect to plaintiffs’ primary claims, we will also dismiss . . . [plaintiff] Donald‘s [derivative] loss of consortium [claim]“); see also Bushman v. Halm, 798 F.2d 651, 656 (3d Cir. 1986) (explaining that because a loss of consortium claim was “wholly derivative from the underlying negligence cause of action, it was necessarily dismissed with the grant of summary judgment” (citing Murray v. Commercial Union Ins. Co., 782 F.2d 432, 437-38 (3d Cir.1986))).