holding that an open issue of spoliation based on the absence of a maintenance log for the date of the accident precluded entry of summary judgment in favor of the defendant, where the plaintiff presented evidence that maintenance contractors were responsible for sweeping and spot mopping the floors on an hourly basis
How later courts described this case
- holding that an open issue of spoliation based on the absence of a maintenance log for the date of the accident precluded entry of summary judgment in favor of the defendant, where the plaintiff presented evidence that maintenance contractors were responsible for sweeping and spot mopping the floors on an hourly basis
- explaining that “with the open possibility that . . . employees failed to check the floors as scheduled prior to [the plaintiff’s] fall, it is not clear that [the defendants’] are entitled to judgment as a matter of law” (emphasis added)
- explaining store owner owes duty of care to patrons; however, no action is necessary if store owner does not know about spill or spill did not exist long enough to impute store owner’s knowledge of it
- holding that an “open question about spoliation precludes the entry of summary judgment”
Written by the judges who cited it.
The opinion
J-S79044-14
2015 PA Super 41
MICHAEL RODRIGUEZ, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
KRAVCO SIMON COMPANY D/B/A LEHIGH :
VALLEY MALL and ENVIRONMENTAL :
SERVICE CONCEPTS, LLC, :
:
Appellees : No. 2291 EDA 2014
Appeal from the Order Entered July 10, 2014
in the Court of Common Pleas of Lehigh County,
Civil Division, at No(s): 2013-C-1195
BEFORE: ALLEN, OLSON, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED FEBRUARY 20, 2015
Michael Rodriguez (Rodriguez) appeals from the July 10, 2014 order
which entered summary judgment in favor of Kravco Simon Company, d/b/a
Lehigh Valley Mall (the Mall), and Environmental Service Concepts, LLC
(ESC) (Defendants, collectively). We reverse and remand for further
proceedings consistent with this opinion.
Succinctly, the facts of this case are as follows. On June 6, 2011,
Rodriguez was walking in the Lehigh Valley Mall when he slipped in a puddle
of brown liquid and fell, breaking his leg. In his subsequently-filed
negligence case, Defendants moved for summary judgment. The trial court
granted Defendants’ motion, determining that Rodriguez failed to come forth
*Retired Senior Judge assigned to the Superior Court.
J-S79044-14
with evidence that would allow a jury to conclude that Defendants had actual
or constructive notice of a dangerous condition.
Rodriguez timely filed a notice of appeal, and presents this Court with
the following questions, which we have reordered for ease of disposition.
1. Did the [trial] court err in finding that the dried nature of
the spill did not create the inference that a sufficient period
of time had passed for constructive notice to Defendants?
2. Did the [trial] court err in disregarding the Defendants’
written admission of failure to prevent the accident?
3. Did the [trial] court err in disregarding the Defendants’
loss of important evidence as a factor to be weighed in
[deciding] Defendants’ motion for summary judgment?
Rodriguez’s Brief at 4 (suggested answers and unnecessary capitalization
omitted).
We consider Rodriguez’s questions mindful of our standard of review.
Our standard of review of an order granting summary judgment
requires us to determine whether the trial court abused its
discretion or committed an error of law[,] and our scope of
review is plenary. We view the record in the light most
favorable to the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party. Only where there is no genuine issue
as to any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
judgment be entered.
***
… Where the non-moving party bears the burden of proof on an
issue, he may not merely rely on his pleadings or answers in
order to survive summary judgment. Further, failure of a non-
moving party to adduce sufficient evidence on an issue essential
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J-S79044-14
to his case and on which he bears the burden of proof
establishes the entitlement of the moving party to judgment as a
matter of law.
Sokolsky v. Eidelman, 93 A.3d 858, 861-62 (Pa. Super. 2014) (quotation
marks and citations omitted).
The parties agree that Rodriguez was at the Lehigh Valley Mall as an
invitee, and thus the following principles of law are applicable.
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but only if,
he
(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 (2d) OF TORTS § 343. This Court has explained the import of
this section as follows:
the 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. 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
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J-S79044-14
condition, or that it had actual or constructive notice of the
condition.
Zito v. Merit Outlet Stores, 647 A.2d 573, 575 (Pa. Super. 1994) (internal
citations and quotation marks omitted).1
Rodriguez first argues that the testimony regarding the characteristics
of the puddle in which he slipped satisfied his burden of coming forth with
evidence of Defendants’ constructive knowledge of the dangerous condition.
Rodriguez’s Brief at 14-17. The trial court rejected this argument as follows.
In this case, [Rodriguez] argues that the liquid substance
on the floor remained on the floor for a period of time long
enough for edges of the liquid to become dry and sticky.
[Rodriguez] further argues that such evidence establishes
constructive notice of the dangerous condition on behalf of
Defendants.
[Rodriguez] testified regarding the substance as follows:
And also, I want to say like, when I fell, I was like in
the main - in the puddle of the dark liquid. And
when I put my hands down, I seen like around the
edges of the puddle or whatever, it was like -- it was
like drying up. The liquid was like drying up,
basically, ‘cause my hand wasn’t wet or nothing.
1
The author of this opinion has for decades noted his disagreement with
Pennsylvania law in this area. See Goodman v. Chester Downs and
Marina, LLC, 39 A.3d 371, 372 (Pa. Super. 2012) (Strassburger, J.
concurring) (citing Landis v. Giant Eagle, Inc., 142 P.L.J. 263 (1994), and
Duff v. Wal-Mart Stores, Inc., 2002 WL 34098113 (Pa. Com. Pl. 2002)). I
write this specially concurring footnote to express my continued belief that,
“[b]etween these two [potentially] innocent parties, fairness should require
the store to pay as a cost of operating its business.” Id. at 372 (quoting
Duff). See also Commonwealth v. King, 57 A.3d 607, 633 n.1 (Pa.
2012) (Saylor, J. concurring) (“Special concurrences such as this are
somewhat unusual but not without precedent.”).
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J-S79044-14
That’s why I first, when I fell, I didn't understand
how I fell or why I fell. You understand what I’m
saying? And I looked, I seen I was in a puddle of the
-- the dark brown liquid.
[Rodriguez] further testified:
Q Was the substance sticky?
A Like I said, around the edges, it was. But like
the main puddle, it wasn’t, no, ‘cause there
was like -- say this is the puddle right here,
and like around here is like the edges of the
puddle. That was like dry with or -- or sticking
up or whatever. But this right here was liquid
(indicating).
Q Do you know how long the liquid was on the
floor --
A No, ma’am.
Q before you fell?
A No way -- no way I can know. I assumed
afterwards, like I said, when I’m on the floor,
and I have my hands, I don’t have no liquid on
my hands, and like I said around the edges
was dry. So that’s -- you know, if it’s dry, then
I assume it’s been there for a little while, you
know.
[Rodriguez] also offered the Affidavits of his fiancée and
her brother which similarly verify that [Rodriguez] fell in a brown
liquid that had dried around the edges.
***
Viewing the record in the light most favorable to
[Rodriguez] as the nonmoving party, we find that [Rodriguez]
has failed to present any evidence regarding how long the brown
liquid existed on the floor. Although [Rodriguez’s] evidence
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J-S79044-14
allows one to infer that the brown liquid was on the floor long
enough for the edges to become dry and sticky, it does not allow
an inference as to the length of time the liquid was on the floor
to determine if the dangerous condition existed long enough to
infer constructive notice on Defendants. Without such evidence,
there is nothing that would sufficiently enable a jury to impute
constructive notice on Defendants.
Trial Court Opinion, 7/10/2014, at 4-7 (footnotes and citations omitted).
We agree with the trial court. Without evidence of how long it takes
the liquid in question to become sticky or dry, the jury would be unable to
determine whether the spill was present for a sufficiently long time to
warrant a finding of constructive notice. The cases cited by Rodriquez,
which are primarily cases from other jurisdictions, do not convince us
otherwise. See Rodriguez’s Brief at 14-17 (citing cases from federal courts
and Wyoming).
Rodriguez next argues that Defendants’ “compelling admission of
liability” warranted denial of their motion for summary judgment.
Rodriguez’s Brief at 20. Rodriguez’s argument is based upon the injury
report prepared on a Simon Property Group form, which contains the
following:
Injury Details
Did the public safety officer No
witness the accident?
Was the scene inspected Yes
immediately following the
accident?
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J-S79044-14
Date/Time of inspection 6/6/2011 7:02:00 PM
Injury scene surface condition Slippery Due To Liquid
On Floor
Defect or obstruction in/on Yes
surface
Describe obstruction Liquid On Floor
Action taken to prevent injury None
Outside temperature 70’s
Rodriguez’s Response to Defendants’ Motion for Summary Judgment,
4/28/2014, at Exhibit D (punctuation added). Rodriguez maintains that this
“admission” precludes the entry of summary judgment in favor of
Defendants.
Rodriguez’s argument fails. “It is unquestionable that a store owner
owes a duty of care to the patrons of the store. However, the owner of the
store is not an insurer of the safety of its customers.” Myers v. Penn
Traffic Co., 606 A.2d 926, 928 (Pa. Super. 1992). Defendants were not
obligated to follow Rodriguez around the mall, prepared to leap in and save
him should some unexpected danger present itself. Rather, under the law
discussed above, Defendants had a duty to protect Rodriguez from dangers
of which they knew or would have known upon reasonable monitoring of the
premises. As the trial court aptly noted, “no action was necessary if
Defendants did not know about the spill or if the spill did not exist long
enough to impute Defendants knowledge of it.” Trial Court Opinion,
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J-S79044-14
7/10/2014, at 6 n.2. This document contains no admission of liability.
Thus, Rodriguez’s second issue warrants no relief.
Finally, Rodriguez argues that the potential for an adverse inference
from Defendants’ spoliation of evidence warranted denial of Defendants’
motion. Rodriguez’s Brief at 17-19. The trial court discussed Rodriguez’s
spoliation contentions and its rejection of them as follows.
[I]n an attempt to support the constructive notice claim,
[Rodriguez] relies on an asserted adverse inference regarding
maintenance records that were not produced by Defendants.
[Rodriguez] argues that in response to a discovery request,
Defendants produced maintenance records for the Lehigh Valley
Mall for the month of June 2011; missing from the records is the
June 6, 2011, paperwork. [Rodriguez] argues that the failure to
preserve a maintenance record that was clearly material to this
action entitles [Rodriguez] to an appropriate inference to review
all evidence in as strong a light as possible against Defendants.
[Rodriguez] has not raised this issue with a motion for
spoliation sanctions to allow this court to review the elements of
spoliation and make a determination regarding any adverse
inference based on the missing discovery.1 In reviewing this
motion for summary judgment, we are limited to the record
before us, and said record does not include an adverse inference
regarding the lack of maintenance records for the date in
question.
______
1
To determine the appropriate sanction for spoliation, the
trial court must weigh three factors:
(1) the degree of fault of the party who altered
or destroyed the evidence; (2) the degree of
prejudice suffered by the opposing party; and
(3) whether there is a lesser sanction that will
avoid substantial unfairness to the opposing
party and, where the offending party is
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J-S79044-14
seriously at fault, will serve to deter such
conduct by others in the future.
PTSI, Inc. v. Haley, 71 A.3d 304, 316 (Pa. Super. 2013).
Trial Court Opinion, 7/10/2014, at 6.
Neither the trial court nor Defendants cite any authority for the
proposition that spoliation sanctions must be obtained, via prior motion and
order, in order for the issue to affect the summary judgment analysis. On
the other hand, given the well-established standard for consideration of
summary judgment motions, we hold that the open question about
spoliation precludes the entry of summary judgment in favor of Defendants.
Since the early 17th century, courts have admitted evidence
tending to show that a party destroyed evidence relevant to the
dispute being litigated. Such evidence permitted an inference,
the spoliation inference, that the destroyed evidence would have
been unfavorable to the position of the offending party. … [T]he
evidentiary rationale [for the spoliation inference] is nothing
more than the common sense observation that a party who has
notice that [evidence] is relevant to litigation and who proceeds
to destroy [evidence] is more likely to have been threatened by
[that evidence] than is a party in the same position who does
not destroy the document.
Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d
1263, 1269 (Pa. Super. 2001) (internal citations and quotation marks
omitted) (quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78-
79 (3rd Cir. 1994)). “[T]he spoliation doctrine is broadly applicable to cases
where relevant evidence has been lost or destroyed.” Id. at 1269 (internal
quotation marks omitted).
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J-S79044-14
Rodriquez, referencing deposition testimony and exhibits of record,
showed that the Mall contracted out housekeeping duties to ESC, whose
employees were to perform functions, including sweeping and spot mopping
the floors, on an hourly basis. Memorandum of Law in Response to
Defendants’ Motion for Summary Judgment, 4/28/2014, at 3-4 (pages
unnumbered) (citing Exhibits B and C). On a form entitled Sweep Sheet &
Spill Log, ESC employees initialed to document the completion of each task,
each hour. Id. at 4 (citing Exhibit F). Although ESC’s representative
testified that he collected the forms from the employees each day and sent
them to ESC’s corporate office each week, the record for the day of the
incident is missing. Id. at 4-5 (citing Exhibit C).
When considering a motion for summary judgment,
all doubts as to the existence of a genuine issue of material fact
must be resolved against the moving party. Only where there is
no genuine issue as to any material fact and it is clear that the
moving party is entitled to a judgment as a matter of law will
summary judgment be entered.
Hogg Const., Inc. v. Yorktowne Medical Centre, L.P., 78 A.3d 1152,
1154 (Pa. Super. 2013) (quoting Brubacher Excavating, Inc. v.
Commerce Bank/Harrisburg, N.A., 995 A.2d 362, 365 (Pa. Super.
2010)).
Here, Rodriguez has come forth with evidence that at least casts a
doubt as to the existence of a question of material fact. With the open
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J-S79044-14
possibility that the ESC employees failed to check the floors as scheduled
prior to Rodriguez’s fall, it is not clear that Defendants’ are entitled to
judgment as a matter of law. See, e.g., RESTATEMENT (2d) OF TORTS § 343
cmt. B (“To the invitee the possessor owes not only [the duty to disclose
known dangers], but also the additional duty to exercise reasonable
affirmative care to see that the premises are safe for the reception of the
visitor, or at least to ascertain the condition of the land….”). Accordingly,
the trial court erred in granting Defendants’ motion for summary judgment
on this record.
Order reversed. Case remanded for further proceedings consistent
with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2015
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