This matter is before the court for disposition of plaintiffs’ motion for post-trial relief. Specifically, plaintiffs have requested a new trial in this case, alleging that the court erred in entering a compulsory nonsuit for the defendants, and in precluding certain expert testimony during trial. For the reasons set forth below, plaintiffs’ motion for post-trial relief is denied.
Plaintiffs Susan and Victor Szapowalo instituted this personal injury action against the defendants in Philadelphia County in May of 1991. Venue was transferred
It is axiomatic for purposes of this motion that all evidence presented by the plaintiffs must be taken as true. A nonsuit can only be granted in cases where it is clear that the plaintiff has failed to establish a cause of action. Coatesville Contractors & Engineers Inc. v. Ridley Park, 509 Pa. 553, 506 A.2d 862 (1986). Plaintiff must be given the benefit of all the favorable
The issues before the court in disposing of plaintiffs’ motion for post-trial relief are: (1) whether the court properly precluded the plaintiffs’ expert testimony of Mr. Gray Smith regarding the conditions of the tile floor on which plaintiff fell; and (2) whether the court properly entered a compulsory nonsuit in favor of the defendants and against the plaintiffs based upon the evidence presented during the trial of this case.
While the law is clear that a store owner does owe a duty of care to the patrons of his store, that owner is not, however, an insurer of the safety of his customers. Myers v. Penn Traffic Co., 414 Pa. Super. 181, 184-85, 606 A.2d 926, 928 (1992), allocatur denied, 533 Pa. 625, 620 A.2d 491 (1993). “[T]he mere existence of a harmful condition in a public place of business or the mere happening of an accident due to such a condition is neither, in and of itself, evidence of a breach of the proprietor’s duty of care to his invitees, nor raises a presumption of negligence.” Moultrey v. Great A & P Tea Company, 281 Pa. Super. 525, 530, 422 A.2d 593, 596 (1980); see also, Calhoun v. Jersey Shore Hospital, 250 Pa. Super. 567, 378 A.2d 1294 (1977).
Under Pennsylvania law, the duty of care owed by store owners or other possessors of land is set forth by the Restatement (Second) of Torts §343, which provides that:
“(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, and
“(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.”
In this case, the record established that plaintiffs’ claim in support of a breach of the duty of care owed by defendants was not based upon facts, but rather upon mere speculation. As such, the court determined that the defendants were appropriately entitled to a compulsory nonsuit. More specifically, plaintiff Susan Szapowalo conceded in this case that there were two floor mats inside the store entrance at the time of hen accident. Plaintiff testifies that she came into the store on a rainy afternoon, presumably wearing wet shoes, and chose to step off of the floor mats provided at the entrance and onto the tile floor, where she fell. Plaintiffs have attempted to argue, without success, that defendant Hechinger’s was negligent by apparently not doing more than putting down floor mats. The record, however, does not support such a theory. To the contrary, plaintiff acknowledged that there was no wetness nor debris in the area where she fell. She also believed that her sneakers may have been wet after walking through a wet parking lot. Additionally, plaintiffs pre
The next issue presented by plaintiffs’ motion for post-trial relief concerns the court’s preclusion of plaintiffs’ expert testimony, which was to be offered by Mr. Gray Smith. Mr. Smith was to testify about the findings of his report dated January 17, 1994, concerning the conditions on the floor area where plaintiff had fallen. However, a reading of Mr. Smith’s report revealed that the majority of his opinions were based upon assumptions which contradicted actual trial testimony. In particular, Mr. Smith concluded that the area where plaintiff fell had been wet before she approached it, essentially stating that plaintiff fell as a result of existing water accumulation on the store’s floor. Such circumstances, in Mr. Smith’s opinion, should have caused defendant to provide additional mats or barriers or warning signs. These conclusions, however, contradict the testimony heard by the court at trial. Specifically, plaintiff testified that there was no debris on the floor, nor any wet spots, as she approached the floor surface. Accordingly, the
Additionally, the court precluded the alternative proposed expert testimony of Mr. Smith regarding the product used by defendant A.A.A. Maintenance Company to coat or finish the tile floor in question. Plaintiffs sought to have Mr. Smith testify that the coefficient of friction for the product when used on the tile surface under normal conditions was satisfactory, but that with the introduction of water tracked onto the floor surface by wet shoes, the coefficient of friction was not sufficient. Firstly, counsel for the defendants properly argued that such testimony was still based on the assumption that the floor was wet, even though such was not the evidence presented at trial. More importantly, though, for Mr. Smith to have testified regarding the changes in the coefficient of friction depending on whether or not the floor was wet or dry, he would have had to have engaged in some type of testing of the surface. That is, the court could not accept these opinions without some form of testing to substantiate and provide foundation for these conclusions. Because there was no testing performed, however, plaintiffs’ expert had no foundation to support his conclusions. As such, the court precluded Mr. Smith’s proposed testimony on this issue.
For the foregoing reasons, the court denies plaintiffs’ motion for post-trial relief and enters the following order:
ORDER
And now, March 25, 1996, it is hereby ordered and directed that plaintiffs’ motion for post-trial relief be and is hereby denied.
