Pusateri v. Wal-Mart Stores E., L.P.

• Docket Number: Civil Action No. 21-1137
• Decision Date: 20 December 2022
• Citation: Pusateri v. Wal-Mart Stores E., L.P., 646 F.Supp.3d 650 (W.D. Pa. 2022)
• Parties: Mary T. PUSATERI and Donald Pusateri, Plaintiffs, v. WAL-MART STORES EAST, L.P., Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

646 F.Supp.3d 650

Mary T. PUSATERI and Donald Pusateri, Plaintiffs, v. WAL-MART STORES EAST, L.P., Defendant.

Civil Action No. 21-1137

United States District Court, W.D. Pennsylvania

Signed December 20, 2022

Emerald N. Williams, Lee Caroline Weir, Woomer & Talarico, LLC, Pittsburgh, PA, for PlaintiffMary T. Pusateri.

Emerald N. Williams, Woomer & Talarico, LLC, Pittsburgh, PA, for PlaintiffDonald Pusateri.

Rebecca Sember Izsak, Brook T. Dirlam, Thomas, Thomas & Hafer, LLP, Pittsburgh, PA, for Defendant.

Re: ECF No. 32

OPINION

KELLY, Magistrate Judge

Presently before the Court is a Motion for Summary Judgment filed on behalf of DefendantWal-Mart Stores East, L.P.("Wal-Mart").ECF No. 32.For the reasons that follow, the motion is denied.¹

I.FACTUAL AND PROCEDURAL BACKGROUND

Mary T. Pusateri and Donald Pusateri("Plaintiffs") commenced this lawsuit on August 3, 2021, in the Court of Common Pleas of Allegheny County, Pennsylvania, seeking damages against Wal-Mart, for a trip and fall accident that occurred on March 18, 2020, at Wal-Mart's Moon Township, Pennsylvania store.ECF Nos. 1 and 30 ¶¶ 1-2.Wal-Mart is a limited partnership formed in Delaware with a principal place of business in Bentonville, Arkansas.ECF No. 1 ¶ 4.Plaintiffs are residents of Allegheny County, Pennsylvania.On August 26, 2021, Wal-Mart timely removed Plaintiffs' action to this Court pursuant to 28 U.S.C. §§ 1441and1446.Id.Based on the diversity of the parties and the amount in controversy, this Court has jurisdiction pursuant to 28 U.S.C. § 1332.

In their Complaint, Plaintiffs allege that at the time of her accident, Mrs. Pusateri was a business invitee, lawfully shopping at Wal-Mart's Moon Township store.ECF No. 1-1 ¶ 8.The evidence jointly presented by the parties shows that Mrs. Pusateri walked four times past a partially empty black pallet or "stack base" that held large screen televisions.ECF No. 30 ¶¶ 6-18;ECFNo. 31-4at 5.The first eighteen inches or so of the stack base were empty, and it stood a few inches above the floor in the middle of an aisle.ECFNo. 31-5at 1-6.Mrs. Pusateri did not remember the presence of the pallet during each pass, but concedes nothing blocked her view.Id.¶¶ 17-20.After her fourth pass, a store employee entered the aisle with a "top stock cart."A top stock cart is the width of a shopping cart but stands higher, and is used to move product down an aisle.ECFNo. 31-3at 3;ECFNo. 31-4at 8.The video evidence presented by Wal-Mart shows that the stock cart was loaded and was pushed in Mrs. Pusateri's direction.ECFNo. 31-3(at 4:59:02).To avoid the stock cart and to permit it to pass, Mrs. Pusateri backed up and tripped on the protruding stack base behind her.Id.;ECFNo. 31-4at 3.It is not disputed that Mrs. Pusateri suffered a fractured left arm and damage to the nerves in her left hand.ECF No. 1-1at 5.She alleges she has undergone surgery to her tendons and wrist and has sustained permanent injury, including a loss of motion.Id.Mr. Pusateri brings a companion claim for loss of consortium.Id. at 8.

Discovery is complete and Wal-Mart has filed the pending Motion for Summary Judgment and brief in support, asserting that the danger presented by the stack base was open and obvious, and thus no duty of care was owed or breached.ECF Nos. 32 and 33.The parties have filed a Joint Statement of Undisputed Facts and an Appendix of relevant exhibits, including video of the incident.ECF Nos. 30 and 31.Plaintiffs have filed their brief in opposition to the motion, and Wal-Mart has filed a reply.ECF Nos. 35 and 36.The Motion for Summary Judgment is ripe for consideration.

II.STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure provides that: "[t]he 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).An issue of material fact is in genuine dispute 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, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986);seealsoDoe v. Abington Friends Sch., 480 F.3d 252, 256(3d Cir.2007)("A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof").Thus, summary judgment is warranted where, "after adequate time for discovery and upon motion . . . a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."Marten v. Godwin, 499 F.3d 290, 295(3d Cir.2007)(quotingCelotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986)).

The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party's case.Celotex, 477 U.S. at 322, 106 S.Ct. 2548;seealsoConoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140(3d Cir.2004)."[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . .Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial."Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686(2007)(quotingMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538(1986))(internal quotations omitted).

In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts in favor of the nonmoving party.Matreale v. N.J. Dep't of Mil. & Veterans Affairs, 487 F.3d 150, 152(3d Cir.2007);Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130(3d Cir.2001).

III.DISCUSSION

Under Pennsylvania law,² a claim for negligence requires four elements:

(1) a duty or obligation recognized by the law requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2)defendant's failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury; [and](4) actual loss or damage resulting to the plaintiff.

R.W. v. Manzek, 585 Pa. 335, 888 A.2d 740, 746(2005)(citations omitted)."The mere occurrence of an accident does not establish negligent conduct.Butler v. City of Pittsburgh, 113 Pa.Cmwlth. 406, 537 A.2d 112, 114(1988).Rather, the plaintiff has the burden of establishing, by a preponderance of the evidence, that the defendant engaged in conduct that deviated from the general standard of care expected under the circumstances, and that this deviation proximately caused actual harm.Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280(1978)."Martin v. Evans, 551 Pa. 496, 711 A.2d 458, 461(1998)(cleaned up).

Wal-Mart does not dispute that at the time of the accident at issue, Mrs. Pusateri was a business invitee.ECF No. 33at 8.Under Pennsylvania law, a landowner owes "the highest duty" to a business invitee, Campisi v. Acme Markets, Inc., 915 A.2d 117, 119(Pa. Super. Ct.2006).As to the scope of the duty owed, Pennsylvania has adopted Section 343 of the Restatement of Torts (Second).Thus,

[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 (Second) of Torts§ 343;seealsoFarabaugh v. Pennsylvania Tpk. Comm'n, 590 Pa. 46, 911 A.2d 1264, 1272(2006)(explaining that "[a]s developed through [Pennsylvania] caselaw, a landowner's duty [to business invitees] derives from Section 343 of the Restatement (Second) of Torts").

Section 343A of the Restatement further provides that "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness."Restatement (Second) of Torts§ 343A;see alsoAtkins v. Urb. Redevelopment Auth. of Pittsburgh, 489 Pa. 344, 414 A.2d 100, 104(1980)("[T]he law of Pennsylvania does not impose liability if it is reasonable for the possessor to believe that the dangerous condition would be obvious to and discovered by his invitee.")(internal quotation marks and citations omitted).

"There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger.In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection.This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm."Restatement (Second) of Torts§ 343A(1965)(cmt. f);Jones v. Three Rivers Mgmt. Corp., 483 Pa. 75, 394 A.2d 546, 552(1978)("Thus, an invitee in certain circumstances must be protected even from obvious dangers.Regelski v. F. W. Woolworth Co., 423 Pa. 524, 225 A.2d 561(1967), citingYarkosky v. The Caldwell Store, 189 Pa. Super. 475, 151 A.2d 839(1959)(In determining whether invitee's failure to observe a...