DONAHUE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MICHELE DONAHUE, )

)

Plaintiff, )

)

vs ) Civil Action No. 2:24-68

)

WAL-MART STORES EAST, L.P., ) Magistrate Judge Dodge

)

Defendant. )

MEMORANDUM OPINION

Plaintiff Michele Donahue (“Donahue”) asserts a negligence claim against Wal-Mart

Stores East, L.P. (“Walmart”) for injuries sustained when she slipped and fell in a Walmart store.

Currently pending before the Court is Walmart’s motion for summary judgment (ECF No.

28). For the reasons that follow, its motion will be granted.1

I. Procedural History

Donahue originally commenced an action in the Court of Common Pleas of Indiana

County, Pennsylvania in October 2023. Walmart then removed the action to this Court on the basis

of diversity of citizenship, 28 U.S.C. § 1332(a). (ECF No. 1.) After other defendants and claims

were dismissed, the remaining claim is a single count of negligence against Walmart. (ECF No. 1

Ex. E at 5.)2

On March 3, 2025, Walmart filed a motion for summary judgment (ECF No. 28), which

has been fully briefed (ECF Nos. 29, 33, 39).

1 The parties have fully consented to jurisdiction by a magistrate judge pursuant to 28 U.S.C.

§ 636(c)(1). (ECF No. 7.)

2 The Complaint named five other defendants and included five counts of negligence, but by

stipulation of the parties (Compl. Ex. F) and an order of the state court filed on December 26, 2023

(Compl. Ex. G), those defendants (including two whose presence would have prevented removal)

were dismissed.

II. Relevant Facts

On September 4, 2021, Donahue went to a Walmart store in Indiana, Pennsylvania. After

entering the store, she first visited the hardware department and then proceeded to the section of

the store that sold domestic items such as decorations, pillows, and curtains. She alleges that at

approximately 10:37 p.m., she slipped and fell in an aisle as a result of water on the floor.3 Donahue

did not see any liquid on the floor before she fell, she could not specify the amount of liquid, and

she could not specify how long the liquid existed on the floor. (Defendant’s Concise Statement of

Facts (“DCSF”) ¶11) (ECF No. 30.) She did not see any Walmart employees in the aisle where

she fell before her fall. (Id. ¶¶ 1-3, 13.)

The source of any water on the floor was not conclusively determined. According to

Donahue, while she did not know where the water came from, it may have come from the ceiling.

She based this possibility on an employee’s statement after the incident to the effect that: “Oh, it

looks like it is coming from the ceiling.” (Plaintiff’s Response to Defendant’s Concise Statement

of Facts (“PRDCSF”) ¶¶ 1, 4) (ECF No. 37.)

According to Walmart, Donahue’s testimony about the alleged substance was limited to

indicating is that it appeared to be water and was clear and clean. It notes that she did not see any

water leaking from the ceiling, has no factual basis for her suggestion there was a leak in the roof,

and no one from the store mentioned possessing any knowledge about any leak. (DCSF ¶¶ 1, 4-5.)

Wanda Lorditch, a Walmart employee who was the first person to respond to Donahue’s fall,

testified that the roof was not leaking at the time of Donahue’s incident and she had no knowledge

regarding the existence of liquid on the floor where Donahue fell. She heard no one from Walmart

3 Donahue alleges that she sustained serious injuries as a result, including tearing of the meniscus

of her right knee which required a knee replacement, anxiety, post-traumatic stress disorder,

depression and stress. (Compl. ¶ 23.)

mention the presence of liquid on the floor where Donahue fell. (Id. ¶¶ 6-8.)

Donahue asserts that a friend took pictures after the incident which show the presence of

liquid on the floor that left a streak after she fell. (PRDCSF ¶¶ 6, 20-23.)

Dean Scott Harkins, a maintenance associate who responded to the incident scene, testified

that he saw nothing wet on the floor when he went over to clean the aisle post-incident, and has

no knowledge about a leak in the roof. He testified at his deposition as follows:

Q: What did you do to clean up the aisle?

A: I mopped where I could really just mop. All of my managers were over there and I was

told to clean up the aisle, so I cleaned up the aisle.

Q: And did I hear your testimony saying you didn’t find anything?

A: I did not.

Q: Did you see any liquid on the floor?

A: I did not.

(DCSF ¶ 9.) Harkins inspects the store for debris and spills at least five to six times per night

beginning at 10:00 p.m. when he begins his shift. He has never had to clean a spill on the overnight

shift in the aisle where the incident occurred. (DCSF ¶ 10.) Harkins was unaware of the origin of

any liquid and did not know the length of time it may have been present on the floor. (DCSF ¶¶

11-12.)

Donahue asserts that Harkins’s denial of seeing any water is contradicted by the

surveillance video that shows him placing a yellow triangular caution sign in the aisle and mopping

the exact area where she fell. (PRDCSF ¶¶ 9, 39.) She adds that the store closes at 11:00 p.m., only

one hour into Harkins’s shift, and Walmart has produced no evidence of when the aisle was last

inspected. (Id. ¶ 10.) Harkins testified that he has been asked to clean up spills on the floor of the

Indiana Walmart “multiple times,” meaning more than ten. (Id. ¶ 38.)

The incident was captured on Walmart’s video surveillance, which depicts the area of

Donahue’s fall for the hour before it occurred. It also captures Donahue’s fall at 10:37 p.m.

According to Walmart, the video shows that a customer appears to walk through the aisle at

9:49:20 and a second customer is seen walking through the aisle at 9:54:18, both without issue. A

third set of customers is seen walking through the aisle at 10:23:06 until they eventually depart at

10:24:00. A fourth set of customers appears in the aisle at 10:24:57 and departs the aisle at

10:26:25, ten minutes before the incident. (ECF 31-8.)4 Walmart asserts that this is evidence that

it did not create any alleged dangerous condition and at any rate, no such condition is visible from

the video. (Id. ¶ 13.)

According to Donahue, the video does not establish when or how the liquid appeared. On

the contrary, she claims that it confirms that no Walmart employee inspected the aisle during the

hour before her accident. Thus, Donahue contends, the video supports her claim that Walmart

failed to conduct regular inspections of the floors. (PRDCSF ¶¶ 13, 24-25.)5 Moreover, Walmart

does not maintain written logs of aisle inspections and has no record of an inspection of the aisle

in question on the day of the incident. (PRDCSF ¶¶ 31-33.)

Joe Lechene, an Asset Protection Coach and Walmart’s designated corporative

representative, testified that he was unaware of any communications about a possible roof leak,

and a review of Walmart documents did not reveal any roof repairs that would suggest the

possibility of a leak in the area of the incident. (DCSF ¶ 15.)6

4 In its reply brief, Walmart contends that “a closer look at the video shows that what was initially

thought to be a customer at 9:49:10-9:49:29, really appears to be an associate pulling a shopping

cart and returning items to the shelves in the domestics’ section of the store, including the aisle

where this incident occurred.” (ECF No. 39 at 8.)

5 The Court has reviewed the video and finds it to be of limited value. It is grainy and taken from

a distance. It does show Donahue falling and someone (presumably Harkins) mopping the area

afterward. It does not definitively show a spill of any liquid onto the floor or anyone inspecting

the area for the hour before Donahue’s fall.

6Walmart searched for maintenance and repair records and found no reports of a leaking roof in

the housewares section of the store. (DCSF ¶ 16.)

Walmart has a strategic maintenance plan for specific areas of the store and for time periods

with a high traffic volume. The plan includes requiring employees to conduct safety sweeps

throughout the day and address any spills that are found. The plan does not apply to the entire store

at all times or to the drapery aisle where Plaintiff fell. Rather, Walmart relies on a “clean-as-you-

go” policy for the drapery aisle, which does not mandate timed or routine inspections of each aisle.

(PRDCSF ¶¶ 34-37.)

According to discovery produced by Walmart, there were seven slip and fall claims in the

Indiana store due to water or wet areas on the floor in housewares, toys, small appliances,

electronics, automotive, paper goods and cereal in the five years preceding Donahue’s fall. (DCSF

¶ 17.) None occurred in the domestics area. (Id.) Walmart also produced discovery responses that

identified all “slip and falls” in various store departments, including domestics/housewares, at all

nine Walmart stores in the same market area as the Indiana store during the five-year period before

Donahue’s fall. This revealed eighteen prior slip-and-fall incidents involving water or clear liquid

in dry goods aisles at nine stores in the same market area. (Id.) There were none that listed the

source of the water as a roof leak and only two in five years that occurred in domestics. (Id.)

Walmart had an average of over 6,000 daily transactions at the Indiana store in the thirty

days preceding the fall and more than 7,200 transactions on the day before the incident. (PRDCSF

¶¶ 29-30.)

III. Standard of Review

The Federal Rules of Civil Procedure provide that: “The court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment may

be granted against a party who fails to adduce facts sufficient to establish any element essential to

that party’s case, and for which that party will bear the burden of proof at trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying

evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has

been met, the non-moving party must set forth “specific facts showing that there is a genuine issue

for trial” or the factual record will be taken as presented by the moving party and judgment will

be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

Court of Appeals has held that “where the movant bears the burden of proof at trial and the motion

does not establish the absence of a genuine factual issue, the district court should deny summary

judgment even if no opposing evidentiary matter is presented.” National State Bank v. Federal

Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992).

In following this directive, a court must take the facts in the light most favorable to the

non-moving party, and must draw all reasonable inferences and resolve all doubts in that party’s

favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005); Doe v. County of

Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).

IV. Discussion

Donahue alleges that Walmart was negligent in allowing a dangerous condition of water

on the floor to exist during her visit to the Indiana store.

Under Pennsylvania law,7 “[a] prima facie negligence claim requires the plaintiff to show

that: (1) the defendant had a duty to conform to a certain standard of conduct; (2) the defendant

7 Pennsylvania law applies in this diversity action. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 80

(1938).

breached that duty; (3) such breach caused the injury in question; and (4) the plaintiff incurred

actual loss or damage.” Krentz v. Consolidated. Rail Corp., 910 A.2d 20, 27 (Pa. 2006) (citation

omitted). If a plaintiff fails to establish any of these elements, the defendant is entitled to summary

judgment. Novak v. Kilby, 647 A.2d. 687, 690 (Pa. Commw. 1984).

When a negligence claim is based on a dangerous condition on another person’s land, the

landowner’s liability depends on whether the plaintiff is classified as a trespasser, licensee, or

invitee upon the land. Estate of Swift v. Ne. Hosp of Phila., 690 A.2d 719, 722 (Pa. Super. 1997).

“A business visitor is 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.” Id. (citation omitted).

“A landowner owes the highest duty of care to any invitee on the property.” Id. Here, it is

undisputed that Donahue was a business invitee.

Pennsylvania courts have adopted Section 343 of the Restatement (Second) of Torts for

determining liability when an invitee is injured on the premises. See Carrender v. Fitterer, 469

A.2d 120, 123 (Pa. 1983); see also Myers v. Penn Traffic Co., 606 A.2d 926, 928 (Pa. Super. 1992),

appeal denied, 620 A.2d 491 (Pa. 1993). Under Section 343, a possessor of land is subject to

liability for harm caused by a condition on the land if it:

(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.

Restatement (Second) Torts § 343 (1965). “An invitee is entitled to expect that the [business

owner] will take reasonable care to ascertain the actual condition of the premises and, having

discovered it, either to make it reasonably safe by repair or to give warning of the actual condition

and the risk involved therein.” Id. comment d.

At the same time, the mere existence of a harmful condition or the mere happening of an

accident is not evidence of a breach of a duty of care nor does it create a presumption of negligence.

Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1193 (Pa. Super. 2015). Rather, as the

Pennsylvania Superior Court noted:

In order to recover damages in a slip and fall case such as this, the invitee must

present evidence which proves that the store owner deviated in some way from his

duty of reasonable care under the existing circumstances. This evidence must show

that the proprietor knew, or in the exercise of reasonable care should have known,

of the existence of the harmful condition. Section 343 also requires the invitee to

prove either that the store owner helped to create the harmful condition, or that it

had actual or constructive notice of the condition.

Id. (quoting Zito v. Merit Outlet Stores, 647 A.2d 573, 575 (Pa. Super. 1994)).

A plaintiff can establish liability by showing “either that the proprietor had a hand in

creating the harmful condition, or that he had actual or constructive notice of such condition.”

Moultrey v. Great A & P Tea Co., 422 A.2d 593, 598 (Pa. Super. 1980). “A plaintiff’s burden of

proving knowledge or notice of the dangerous condition is a heavy one.” Marshall v. Brown’s IA,

LLC, 213 A.3d 263, 270 (Pa. Super. 2019).

The parties agree that whether Walmart can be liable in this case turns on whether it had

either actual or constructive notice of a dangerous condition in the store.8 The Court turns thus to

the issue of notice.

8 Donahue’s Complaint alleged that Walmart may have “had a hand” in creating the condition in

that the water came in through a leak in the roof. But as Walmart accurately observes, she has

abandoned this theory.

A. Actual Notice

A plaintiff may prove actual notice by showing that the store owner was warned about the

condition, or that the condition is one which the owner knows has recurred frequently. Myers, 606

A.2d at 929 (citing Moultrey, 422 A.2d at 596). “Pennsylvania law requires that a plaintiff

demonstrate (1) that the dangerous condition occurred frequently and (2) that plaintiff’s injury was

caused by the frequently recurring condition.” Sheil v. Regal Ent. Grp., 563 F. App’x 216, 219 (3d

Cir. 2014) (citations omitted).9

It is uncontroverted that Walmart did not know and was not warned about any liquid on

the floor before Donahue’s fall. Instead, Donahue argues that because this condition occurred

frequently, actual notice may be imputed. Walmart disputes that actual notice can be imputed to it

based on the undisputed facts of record.

In support its theory related to actual notice, Donahue points to seven slip and fall incidents

at the Indiana Walmart over the past five years. In doing so, Donahue relies heavily on Dominiak

v. Petsmart, Inc., 2023 WL 8810791, at *1 (E.D. Pa. Dec. 20, 2023), a case in which the plaintiff

sustained serious bodily injury after falling on a puddle of dog urine in the main aisle of a pet store.

InPetsmark, there was evidence that dogs urinated on the floor several times every day, the store

maintained “oops stations” to deal with frequent cleanups, the floor was monitored for slipping

hazards and the store maintained a written procedure for performing periodic visual inspections of

the floors throughout the day. Based on this evidence, the court concluded that this was a recurring

condition at the store. Id. at *4.

9 Donahue’s statement that constructive notice may be imputed when a dangerous condition is

recurring and foreseeable (ECF No. 33 at 4) is incorrect. In addition, her citations to Bowman v.

Wal-Mart Stores E., LP, 2015 WL 568570 (E.D. Pa. Feb. 10, 2015), and Cox v. Wal-Mart Stores

E., L.P., 2008 WL 4072804 (E.D. Pa. Aug. 26, 2008) (discussed below) are not on point, as neither

case involved “repeated incidents of the same hazardous condition.”

Unlike the situation in Petsmart, however, none of the seven incidents over five years

occurred in the section of the store in which Donahue fell, an area where there are no sources of

water or other liquids. Even assuming there was water on the floor on the day of Donahue’s fall,

there is no evidence in the record from which an inference could be drawn that it was a recurring

and frequent condition in this part of the store, or indeed, in the store itself.

As Walmart notes, “for actual notice to be imputed to a defendant on the basis of a recurring

condition, however, such a condition must have recurred in a ‘pervasive or obvious’ manner.”

Mack v. Pilot Travel Centers, LLC, 2015 WL 9946411, at *8 (citation omitted) (M.D. Pa. Dec. 22,

2015), report and recommendation adopted, 2016 WL 374436 (M.D. Pa. Feb. 1, 2016). See also

Derito v. Walmart Stores E., L.P., 2020 WL 7059551, at *4 (W.D. Pa. Dec. 2, 2020) (customer’s

slip on snow which blew into store from malfunctioning door did not provide actual notice as it

was not a recurring condition)10; Farina v. Miggys Corp. Five & Six, 2010 WL 3024757, at *6-7

(M.D. Pa. July 29, 2010) (rejecting argument that actual notice of a piece of pineapple on the floor

could be imputed based on the fact that fruit was dropped on the floor on multiple occasions).

Donahue has identified no evidence that Walmart knew about the presence of water on the

floor in the domestics department of Walmart or that water was present on a recurring and frequent

basis that would allow a conclusion that actual notice could be imputed to Walmart. As a result,

Donahue has failed to demonstrate the existence of a genuine issue of material fact as to actual

notice.

10 The customer also could not establish constructive notice, because the door was only open for

30 seconds before he entered. Id. at *5.

B. Constructive Notice

Alternatively, a plaintiff who is asserting a negligence claim may establish constructive

notice by showing that a hazard or dangerous condition was present for a sufficient enough period

of time that, in the exercise of reasonable care, the defendant should have discovered and remedied

it. Moultrey, 422 A.2d at 596. There is no absolute threshold duration under Pennsylvania law for

constructive notice. See Branch v. Philadelphia Transp. Co., 96 A.2d 860, 862 (Pa. 1953). “The

duration of the hazard is important because if a hazard only existed for a very short period of time

before causing any injury, then the possessor of the land, even ‘by the exercise of reasonable care,’

would not discover the hazard, and thus would owe no duty to protect invitees from such a hazard.”

Felix v. GMS, Zallie Holdings, Inc., 827 F. Supp. 2d 430, 437 (E.D. Pa. 2011) (quoting

Restatement (Second) of Torts § 343), aff’d, 501 F. App’x 131 (3d Cir. 2012).

“Normally, the evaluation of these factors is within the province of the jury. However,

where the evidence adduced requires the jury to resort to ‘conjecture, guess or suspicion,’ the

determination must be made by the Court.” Craig v. Franklin Mills Assocs., L.P., 555 F. Supp. 2d

547, 550 (E.D. Pa. 2008) (citing Lanni v. Pa. R.R. Co., 88 A.2d 887, 889 (Pa. 1952)), aff’d sub

nom. Craig v. Mills Corp., 350 F. App’x 714 (3d Cir. 2009).

In connection with constructive notice, courts have held that “one 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, 771 A.2d 786, 791 (Pa. Super. 2001)

“State and federal courts applying Pennsylvania law in this area have consistently required a

plaintiff ‘to provide some proof as to the length of time a spill existed on the floor to establish

constructive notice.’” Cox v. Wal-Mart Stores E., L.P., 2008 WL 4072804, at *4 (E.D. Pa. Aug.

26, 2008) (citation omitted), aff’d, 350 F. App’x 741 (3d Cir. 2009).

A number of factors can be considered in order to determine whether a party had

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., 1991 WL 8429, at *4 (E.D. Pa. Jan. 28, 1991) (citing Stais v. Sears, Roebuck & Co., 102 A.2d

204, 206 (Pa. Super), aff’d mem., 106 A.2d 216 (Pa. 1954)).

Donahue asserts that Walmart had constructive notice of the presence of water on the floor.

She argues that based on the absence of activity in the aisle, the surveillance footage, and the

testimony in the record, a reasonable jury could conclude that the liquid had been present for more

than one hour and Walmart had constructive notice of the hazard. (PRDCSF ¶ 40.) She also argues

that Walmart was on constructive notice of the dangers associated with frequent customer traffic

and recurring spills, and its failure to adopt a timed inspection protocol in light of known hazards

constitutes a breach of its duty of care.

In Petsmart, a decision on which Donahue relies, the court concluded that the defendant

had constructive notice of the puddle that caused the plaintiff’s fall:

The central location of the puddle of urine that Plaintiff fell on indicates that

Petsmart should have discovered the hazard with reasonable diligence in a short

period of time. . . While Plaintiff cannot say how long the puddle of urine was

present on the floor, the record sets forth sufficient circumstantial evidence to allow

a jury to conclude that it was present for enough time to create constructive notice

to Defendant. Manager Reif testified that her general practice is to perform visual

inspections at 9:00 AM, 1:00 PM, and 5:00 PM, each of which last approximately

15-20 minutes. Given that Plaintiff’s fall occurred at around 5:50 PM, it would be

reasonable for a jury to find that the puddle was there for up to 30 minutes before

Plaintiff encountered it.

2023 WL 8810791, at *6.

According to Donahue, the fact that no evidence of a spill can be observed on the video for

an hour before her fall permits an inference, similar to the one in Petsmart, that water had been on

the floor for at least an hour and Walmart took no action to remove it.

In turn, Walmart contends that Donahue has produced no evidence as to how long there

may have been liquid on the floor. Donahue testified that she saw nothing on the floor before the

incident and several customers walked through the aisle without incident in the hour prior to the

fall without incident. Walmart also notes that there is no record evidence that shows when or if a

spill occurred or that anyone saw liquid on the floor before Donahue fell.

“Courts interpreting Pennsylvania law make clear that absent any evidence of the duration

of time the spill remained on the floor prior to the accident, constructive notice cannot be inferred.”

Cox, 2008 WL 4072804, at *8. See also Toro v. Fitness Int’l LLC, 150 A.3d 968, 977 (Pa. Super.

2016); Bowman v. Wal-Mart Stores E., LP, 2015 WL 568570, at *5 (E.D. Pa. Feb. 10, 2015); Felix,

827 F. Supp. 2d at 438.

Moreover, the Court of Appeals has rejected the attempt to demonstrate constructive notice

by negative inference. In Choi v. Costco Wholesale Corp., 2024 WL 658972 (3d Cir. Feb. 16,

2024), the plaintiff (Choi) slipped and fell on an “oily substance” in a Costco store. The fall was

captured on a video, which also showed that, for fifteen minutes prior to his fall, nineteen

individuals walked through the area, the last one walking through one minute before the incident.

None of these nineteen individuals slipped, fell, or gave any indication that they lost their footing.

A Costco employee was seen in the video unloading a pallet and stocking a shelf in the same aisle

where Choi fell.

Choi argued that he could establish constructive notice because the video demonstrated

that no one spilled anything for the fifteen minutes prior to his fall and thus the condition must

have existed for at least that long. Rejecting this argument, the Court of Appeals held that:

Choi’s argument fails, however, because he asks us to speculate as to how long the

oily substance was on the floor. As Choi acknowledges, the video does not reveal

a patron causing the condition, or the Costco employee taking notice of the

condition. Choi contends that the absence of these events suggests that the condition

could not have occurred in the fifteen minutes before Choi’s fall, but Choi’s

argument only highlights that he cannot establish when the condition began. Choi

assumes — rather than establishes — that the condition was on the floor prior to

the start of the surveillance video. See Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.

2014) (“[A]n inference based upon a speculation or conjecture does not create a

material factual dispute sufficient to defeat summary judgment.” (quoting

Robertson v. Allied Signal, Inc., 914 F.2d 360, 380 n.12 (3d Cir. 1990))). Moreover,

the fact that nineteen individuals safely walked through the aisle during the fifteen

minutes before Choi’s fall undermines Choi’s argument that the oily substance was

on the floor throughout this time period.

Id. at *3. See also Polit-Baquero v. Walmart Stores E., L.P., 2024 WL 469304, at *2 (3d Cir. Feb.

7, 2024) (Walmart had no constructive notice of water on the floor when the plaintiff “points to no

evidence showing how long the hazard existed.”); Hower v. Wal-Mart Stores, Inc., 2009 WL

1688474, at *5 (E.D. Pa. June 16, 2009) (no constructive notice because there was no evidence of

how long the spill had been on the floor prior to the accident); Read v. Sam’s Club, 2005 WL

2346112, at *2 (E.D. Pa. Sept. 23, 2005) (no constructive notice based on the facts that an

employee could not recall when she performed a safety sweep of the aisle and the store failed to

keep logs of safety sweeps and inspections); Estate of Swift, 690 A.2d at 722 (constructive notice

could not be inferred based on janitorial maintenance records which indicated that the person

charged with maintaining the area where the decedent fell had left the hospital property four hours

before the accident).

Donahue assumes that water was on the floor for more than an hour because the video does

not clearly show the occurrence of any spills during the hour preceding her fall. However, she

cannot establish when the condition began.11 That is fatal to her claim of constructive notice. As

discussed in Choi, Donahue assumes that the spill occurred before the start of the surveillance

11 As noted above, because the video does not provide a definitive view of the aisle where Donahue

fell, it is possible that a spill was present but could not be seen.

video, but she cannot establish when it may have occurred. Speculation about how long the

condition may have existed before the start of the surveillance video is insufficient to create a

material issue of fact regarding constructive notice. In addition, there is a lack of any evidence in

the record about the probable cause of any liquid on the floor and any opportunity that Walmart

had to remedy it. And as reflected on the video, six customers walked through this aisle of the

store without incident in the hour preceding Donahue’s fall, the last two only ten minutes before

its occurrence.

Thus, Donahue has failed to demonstrate a genuine issue of material fact that Walmart had

constructive notice of the hazardous condition.

C. Walmart’s Inspection Protocols

Finally, Donahue seeks to establish liability based on Walmart’s lack of regular

inspections, which she argues could have provided notice of water on the floor prior to her fall.

She points to the absence of any formal inspection policy at this store and notes that Walmart relied

on an informal “clean-as-you-go” policy instead. Further, the area in which she fell was not

inspected for an hour before her fall.

In support of her position, Donahue cites Rodriguez v. Kravco Simon Co., 111 A.3d 1191,

1195 (Pa. Super. 2015), for the proposition that Walmart had a duty to conduct reasonable

inspections to discover and remedy hazardous conditions. But see Rivera v. CVS Pharmacy, 2024

WL 4680033, at *6 n.6 (E.D. Pa. Nov. 5, 2024) (distinguishing Rodriguez, which was based on an

“open question about spoliation” since the defendants failed to produce records that their

employees had followed a cleaning schedule, whereas in Rivera, there were no spoliation issues

or any indication that CVS employees failed to comply with a specific inspection policy); McClure

v. Love’s Travel Stops & Country Stores, 2023 WL 3609158, at *8 (M.D. Pa. May 23, 2023)

(same).12

At any rate, liability cannot be based on a store’s failure to adhere to its own inspection

policies or that in general, its inspection policies were inadequate. In fact, courts have rejected this

argument. See Hower, 2009 WL 1688474, at *6 (a store’s “policies are not the equivalent of its

duty of care.”). Such an argument “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.” Felix, 827 F. Supp. 2d at 440. See also Read, 2005 WL 2346112, at *3 (factual

disputes about how often the store inspected the area “are material in showing a breach of duty,

[but] they become relevant only after plaintiff makes an evidentiary showing of the existence of

such a duty (i.e., that the spill lingered for a sufficient period of time so that defendant should have

discovered the spill), which plaintiff has not done.”)

Because Donahue has failed to demonstrate that Walmart had actual or constructive notice

of the presence of water on the floor of the aisle, she has failed to demonstrate that it had any duty

to her. Without establishing such a duty, the Court cannot reach the issue of Walmart’s alleged

breach of a duty. Therefore, Donahue cannot predicate liability based on Walmart’s inspection

policies or their supposed inadequacy.

V. Conclusion

For the reasons explained above, Walmart’s motion for summary judgment will be granted.

An appropriate order follows.

Dated: November 13, 2025 /s/ Patricia L. Dodge

PATRICIA L. DODGE

UNITED STATES MAGISTRATE JUDGE

12 Donahue cites the Craig case for the proposition that the “absence of adequate and reasonable

inspection procedures may give rise to constructive notice.” (ECF No. 33 at 12.) Craig does not

include this statement.