Myers v. Penn Traffic Co.

• Decision Date: 13 April 1992
• Citation: 606 A.2d 926,414 Pa.Super. 181
• Parties: Doris S. MYERS, Appellant, v. The PENN TRAFFIC COMPANY.
• Court: Pennsylvania Superior Court

Page 926

606 A.2d 926

414 Pa.Super. 181

Doris S. MYERS, Appellant, v. The PENN TRAFFIC COMPANY.

Superior Court of Pennsylvania.

Argued Oct. 31, 1991.

Filed April 13, 1992.

Thomas A. Beckley, Harrisburg, for appellant.

Robert A. Mix, Bellefonte, for appellee.

Before ROWLEY, P.J., and CAVANAUGH, WIEAND, CIRILLO, OLSZEWSKI, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

ROWLEY, President Judge:

On July 9, 1986, while shopping in Riverside Market, a supermarket operated by appellee The Penn Traffic Company (Penn), appellant Doris S. Myers slipped in the aisle leading from the produce department to the bakery department. She subsequently filed a complaint against Penn, ¹ alleging that it negligently maintained the aisle in an unsafe and slippery condition, failing to warn customers of this condition. Ms. Myers claimed damages in an amount exceeding $180,000.00. On February 8, 1990, Penn filed a motion for summary judgment, which the trial court granted. Ms. Myers then filed this timely appeal.

In this appeal, appellant contends that the trial court erred by failing to read the record in the light most favorably to her, thereby disregarding genuine issues of material fact. After thoroughly considering the parties' arguments and the applicable case law, we affirm the summary judgment entered in favor of appellee.

In reviewing the trial court's decision regarding summary judgment, our standard of review is as follows:

[T]his court must determine whether the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. However, summary judgment may only be entered in those cases which are clear and free from doubt. We must determine whether there exists any genuine issue of triable fact.... [T]he record must be examined in the light most favorable to the nonmoving party[, and] ... we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom.

Overly v. Kass, 382 Pa.Super. 108, 110-11, 554 A.2d 970, 971-72 (1989) (citations and internal quotation marks omitted). Although the moving party has the burden of showing that no genuine issue of material fact exists, id., 382 Pa. Superior Ct. at 111, 554 A.2d at 972, "once the motion for summary judgment has been properly supported, the burden is upon the non-movant to disclose evidence that is the basis for his or her argument resisting summary judgment." Samarin v. GAF Corp., 391 Pa.Super. 340, 347, 571 A.2d 398, 402 (1989), allocatur denied, 524 Pa. 624, 574 A.2d 66 (1990). This "assure[s] that the motion for summary judgment may 'pierce the pleading' and ... require[s] the opposing party to disclose the facts of his claim or defense." Roland v. Kravco, Inc., 355 Pa.Super. 493, 501, 513 A.2d 1029, 1034 (1986), allocatur denied, 517 Pa. 599, 535 A.2d 1058 (1987) (quoting Goodrich Amram, Procedural Rules Service 2d § 1035(d):5) (emphasis omitted). Finally, the trial court's decision to grant summary judgment will be affirmed absent an error of law. Overly, supra, 382 Pa.Super. at 111, 554 A.2d at 972.

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. Moultrey v. Great Atlantic & Pacific Tea Company, 281 Pa.Super. 525, 529-30, 422 A.2d 593, 596 (1980). Moreover,

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.

Id., at 530, 422 A.2d at 596.

The parties agree that the duty which the owner of a store owes to its customers is set forth in Restatement (Second) of Torts § 343. ² Section 343 provides as follows:

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.

Appellant contends that the evidence present in the record, viewed in the light most favorably to her, supports her allegation that appellee was negligent under the above standard. Because we conclude that the trial court did not commit an error of law in determining that no triable factual issue exists, we affirm the summary judgment entered in favor of appellee.

In support of her claim against appellee, appellant asserted that either a grape on the floor or an accumulation of wax caused her to fall. We will address these two theories separately. In support of her allegation that she slipped on a grape, appellant relies on a note allegedly written by her immediately after the accident. This note says she "fell on produce on slippery floor." ³ Appellant also emphasizes the deposition testimony of one of the store's employees, Timothy Snyder. Mr. Snyder stated that he had heard from another employee that somebody had slipped on grapes. Mr. Snyder could not remember who told him this, but he stated that it was someone who was at the scene of the accident. Mr. Snyder also stated that although he could not say that the other employee was referring to appellant, he knew of no other accidents where someone had slipped on grapes.

Appellee asserts that because the note and Mr. Snyder's statement are hearsay, and therefore inadmissible, they should not be considered as raising a triable factual issue. Appellant, on the other hand, argues that the note and Mr. Snyder's statement are admissible under, respectively, the past recollection recorded and the admission by a party exceptions to the hearsay rule. Because resolution of this issue will not affect our disposition of the case, we will assume for purposes of our discussion that the evidence would be admissible at trial.

Even assuming that the above evidence would be admissible, appellant would still not prevail because she has presented no evidence that appellee had notice of the condition or failed to exercise reasonable care. ⁴ See section 343, supra. Although appellant contends that the trial court erred by failing to view the record in the light most favorable to her, the inferences which she draws from the record in support of her allegation of negligence are not reasonable.

Under section 343, a store must have notice of the harmful condition. In determining whether this element is met, the following principles apply:

[I]f the harmful transitory condition is traceable to the possessor or his agent's acts, (that is, a condition created by the possessor or those under his authority), then the plaintiff need not prove any notice in order to hold the possessor accountable for the resulting harm. In a related context, where the condition is one which the owner knows has frequently recurred, the jury may properly find that the owner had actual notice of the condition, thereby obviating additional proof by the invitee that the owner had constructive notice of it. Where, however, the evidence indicates that the transitory condition is traceable to persons other than those for whom the owner is, strictly speaking, ordinarily accountable, the jury may not consider the owner's ultimate liability in the absence of other evidence which tends to prove that the owner had actual notice of the condition or that the condition existed for such a length of time that in the exercise of reasonable care the owner should have known of it.

Moultrey, supra, 281 Pa.Super. at 530-31, 422 A.2d at 596.

Appellant argues that because the condition, that is, produce on the floor, frequently recurred, appellee had actual notice. In support of this argument, she emphasizes the deposition testimony of employees which she contends shows that "produce on the floor in that particular area of the supermarket was a constant, day-long problem which required 'full-time' attention." Appellant's Brief at 13. Specifically, appellant emphasizes the deposition of Mr. Hunter, who stated that the employees working in the produce section must clean the entire time that they are on duty because filling the produce cases makes a mess. However, there is nothing in the record to indicate that the produce cases had been filled near the time that appellant fell. The fact that putting produce in the cases makes a mess is not relevant if there is nothing to show that the produce cases were in fact filled prior to appellant's accident.

Citing to the deposition of Robert Parkes, another employee of appellee, appellant also contends that "appellee knew that the problem was so common that [it] had assigned two employees to watch over that particular section, so that if one of them went on break, the other could cover for him." Id. at 13-14. We disagree with appellant that the inference which she draws from Mr. Parkes' statements is reasonable. To the contrary, when asked if another employee was supposed to cover for him when he took a break, Mr. Parkes answered "Not all the time.... [M]ost of the time we do try to keep someone out on the floor, you know, for customer service; but, whenever we are only taking a 10-minute break, sometimes we both just go...." Reproduced Record (R.R.) at 226a. Mr. Parkes did not, as appellant asserts, state that one employee is always present in the produce aisle. Furthermore, he stated that most of the time someone is available for customer service; he did not state that someone is always available to clear produce from the floor. Although the non-moving party must be given the benefit of all...