J-A24012-16
2016 PA Super 243
CHARLES TORO IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
FITNESS INTERNATIONAL LLC. A/K/A
L.A. FITNESS INTERNATIONAL LLC
Appellee No. 378 EDA 2016
Appeal from the Order Entered December 16, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): August Term, 2014, No. 1544
BEFORE: BOWES, J., OTT, J., and SOLANO, J.
OPINION BY SOLANO, J.: FILED NOVEMBER 10, 2016
Appellant Charles Toro appeals from the trial court’s December 16,
2015 order granting summary judgment in favor of Appellee Fitness
International, LLC in his action for personal injuries incurred when he slipped
and fell in a Fitness locker room. We affirm.
Fitness operates an L.A. Fitness physical fitness center in Langhorne,
Pennsylvania. Toro was a member of this L.A. Fitness center, and, as part of
his membership, he signed a Fitness Membership Agreement (“Membership
Agreement”). Trial Court Opinion, 3/17/16, at 2-3. That Agreement begins,
“It is agreed by and between L.A. Fitness International, LLC (“L.A. Fitness”)
and you, the undersigned Buyer (individually, if you are the Member, and/or
as agent or guardian of the Member or responsible party), that you are
purchasing a membership from L.A. Fitness according to the terms on both
pages of this Membership Agreement . . . .” Membership Agreement, p. 1.
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Included on the back of the first page of the Membership Agreement,
within a black printed box, is a provision entitled in bold capital letters:
“IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND
INDEMNITY” (the “Waiver Clause”). This Waiver Clause states, in part:
You hereby acknowledge and agree that use by Member and/or
by Member’s minor children of L.A. Fitness’ facilities, services,
equipment or premises, involves risks of injury to persons and
property, including those described below, and Member assumes
full responsibility for such risks. In consideration of Member and
Member’s minor children being permitted to enter any facility of
L.A. Fitness (a “Club”) for any purpose including, but not limited
to, observation, use of facilities, services or equipment, or
participation in any way, Member agrees to the following:
Member hereby releases and holds L.A. Fitness, its directors,
officers, employees, and agents harmless from all liability to
Member, Member’s children and Member’s personal
representatives, assigns, heirs, and next of kin for any loss or
damage, and forever gives up any claim or demands therefor, on
account of injury to Member’s person or property, including
injury leading to the death of Member, whether caused by the
active or passive negligence of L.A. Fitness or otherwise, to the
fullest extent permitted by law, while Member or Member’s
minor children are in, upon, or about L.A. Fitness[’] premises or
using any L.A. Fitness facilities, services or equipment.
Membership Agreement at 2. The Clause states that a “risk of injury” under
the Clause includes “accidental injuries occurring anywhere in Club dressing
rooms, showers and other facilities,” and that the Clause “is intended to be
as broad and inclusive as is permitted by the law of the State of
Pennsylvania.” Id. The Clause concludes, “Member has read this release
and waiver of liability and indemnity clause, and agrees that no oral
representations, statements or inducement apart from the Agreement have
been made.” Id.
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On the first page of the Membership Agreement, just above the
signature line, is a paragraph that states, “By signing this Agreement, Buyer
acknowledges that Buyer is of legal age, has received a filled-in and
completed copy of this Agreement[,] has read and understands the entire
agreement including but not limited to the . . . Release and Waiver of
Liability and Indemnity, and other Additional Terms and Conditions on the
reverse side hereof. . . .” Membership Agreement at 1. Toro signed the
Agreement on the signature line located below this paragraph.
Toro alleges that on or about August 14, 2012, while on Fitness’
premises as a member and business invitee, he slipped and fell in the L.A.
Fitness men’s locker room. He testified in an August 2015 deposition that
he slipped and fell on an “unusual buildup” of “soapy water,” which was
“cloudy.” He stated that he did not know how the floor became wet or how
long it had been wet before he fell, and he said he had never seen such a
buildup of soapy water on the floor prior to this incident. Trial Court
Opinion, 3/17/16, at 2. In response, Fitness presented an affidavit by
Robert Sargent, the General Manager of the L.A. Fitness facility, in which he
attested that: (1) he was working when Toro fell; (2) the janitorial staff
regularly inspects and maintains the men’s locker room where the alleged
incident occurred; and (3) on August 14, 2012, prior to the alleged incident,
there were no reports from the janitorial or other staff that the floor in the
men’s locker room was wet. Trial Court Opinion, 3/17/16, at 2-3.
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Toro’s amended complaint contained one count alleging negligence
(premises liability). See Amended Complaint, 1/22/15. In it, Toro
contended he was “caused to slip and fall by reason of the dangerous and
hazardous condition, to wit, a wet and slippery floor, as a result of which he
suffered severe personal injuries . . . .” Id. at ¶ 9. Toro claimed that
Fitness should be held liable because it knew or should have known of the
existence of the “dangerous and hazardous condition . . . .” Id. at ¶ 8.
On November 2, 2015, Fitness filed a motion for summary judgment,
asserting that: (1) Toro could not meet his burden of proving negligence;
and (2) Toro’s claim was precluded under the terms of the Membership
Agreement. See Motion for Summary Judgment, 11/2/15. On December
16, 2015, the trial court granted Fitness’ motion for summary judgment.
While the trial court did not explain its reasoning at that time, its opinion
issued pursuant to Appellate Rule 1925(a) explained that it based its
decision on both of the grounds raised by Fitness. See Trial Court Opinion,
3/17/16. On January 12, 2016, the trial court denied a motion by Toro
seeking reconsideration.
On appeal, Toro raises the following issues:
1. Did the lower court err when it granted defendant’s motion
for summary judgment on the issue of liability when a
reasonable jury could find that defendant had constructive
notice of the dangerous condition that caused plaintiff’s
injuries?
2. Did the lower court err when it granted defendant’s motion
for summary judgment on the issue of liability when a
reasonable jury could find that defendant was negligent
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when it failed to place mats on the tile floor in the
communal bathroom?
3. Did the lower court err when it found that the exculpatory
language in the membership agreement was valid despite
it being contained in a contract of adhesion and being
against public policy?
4. Did the lower court err when it found that the exculpatory
language in the membership agreement was enforceable
despite there being no evidence in the record from which it
could find that plaintiff had read and understood the
exculpatory language and a reasonable jury could find that
the exculpatory language was not sufficiently prominent
such that a reasonable person would be aware of it?
Appellant’s Brief at 7.
In reviewing an order granting summary judgment, this Court applies
the following principles:
A reviewing court may disturb the order of the trial court only
where it is established that the court committed an error of law
or abused its discretion. As with all questions of law, our review
is plenary.
In evaluating the trial court's decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. The rule states that where there is no
genuine issue of material fact and the moving party is entitled to
relief as a matter of law, summary judgment may 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. Failure of a non-moving
party to adduce sufficient evidence on an issue essential to his
case and on which it bears the burden of proof . . . establishes
the entitlement of the moving party to judgment as a matter of
law. Lastly, we will view the record in the light most favorable to
the non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party.
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Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa.
2001) (internal quotation marks and citations omitted).
We divide Toro’s issues into two categories: the Waiver Clause (Toro’s
issues 3 and 4); and proof of negligence (Toro’s issues 1 and 2).
The Waiver Clause
The Waiver Clause in Toro’s Membership Agreement provided that, by
signing the Agreement, Toro “releases and holds L.A. Fitness . . . harmless
from all liability” for any injury he suffered on the premises, including an
injury in a dressing room, shower, or other part of the facility, that was
caused by L.A. Fitness’ negligence. The trial court held that the Waiver
Clause was valid and enforceable. See Trial Court Opinion, 3/17/16, at 8-
10. We agree, and hold that the trial court properly granted summary
judgment in favor of Fitness based on the Waiver Clause.
To be valid, an exculpatory clause, such as the Waiver Clause in this
case, must meet three conditions: “First, the clause must not contravene
public policy. Secondly, the contract must be between persons relating
entirely to their own private affairs and thirdly, each party must be a free
bargaining agent to the agreement so that the contract is not one of
adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189
(Pa. 2010). Moreover, a valid exculpatory clause will be enforceable only if
“the language of the parties is clear that a person is being relieved of liability
for his own acts of negligence.” Id.
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Toro argues that the Waiver Clause is invalid because it contravenes
public policy. See Appellant’s Brief at 17-18. The trial court held that the
Waiver Clause is not contrary to public policy because Toro “was engaged in
a voluntary recreational activity, which did not involve any public entity or
concern.” Trial Court Opinion, 3/17/16, at 9 (relying upon Chepkevich).
We agree.
Exculpatory provisions “violate public policy only when they involve a
matter of interest to the public or the state. Such matters of interest to the
public or the state include the employer-employee relationship, public
service, public utilities, common carriers, and hospitals.” Seaton v. E.
Windsor Speedway, Inc., 582 A.2d 1380, 1382 (Pa. Super. 1990). The
Supreme Court of Pennsylvania has “consistently . . . been reluctant to
invalidate a contractual provision due to public policy concerns.” Williams
v. GEICO Gov’t Employees Ins. Co., 32 A.3d 1195, 1200 (Pa. 2011). It
has explained:
Public policy is to be ascertained by reference to the laws and
legal precedents and not from general considerations of
supposed public interest. As the term “public policy” is vague,
there must be found definite indications in the law of the
sovereignty to justify the invalidation of a contract as contrary to
that policy[.] ... Only dominant public policy would justify such
action. In the absence of a plain indication of that policy through
long governmental practice or statutory enactments, or of
violations of obvious ethical or moral standards, the Court should
not assume to declare contracts ... contrary to public policy. The
courts must be content to await legislative action.
***
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It is only when a given policy is so obviously for or against the
public health, safety, morals or welfare that there is a virtual
unanimity of opinion in regard to it, that a court may constitute
itself the voice of the community in so declaring [that the
contract is against public policy].
Id. (citation omitted).
Relying on Boyd v. Smith, 94 A.2d 44 (Pa. 1953), Toro argues that
the Waiver Clause contravenes public policy because it relates to “health and
safety.” See Appellant’s Brief at 17. In Boyd, a landlord failed to install a
fire escape in an apartment building, in violation of a statute requiring fire
escapes. See Boyd, 94 A.2d at 45. When a resident was injured jumping
out of a window during a fire, the landlord attempted to avoid liability by
relying on an exculpatory clause in the lease agreement. See id. at 45-46.
The Supreme Court held that the exculpatory clause was invalid because it
contravened the public policy set forth in the statute requiring fire escapes:
“[w]here the legislature has, by definite and unequivocal language,
determined the public policy of this Commonwealth with regard to a
particular subject, that pronouncement cannot be set aside and rendered
unenforceable by a contract between individuals.” Id. at 46.
This case is distinguishable from Boyd because Toro has not identified
a dominant public policy, established by statute or otherwise, relating to
fitness centers. Toro cites one New Jersey case in which a fitness center’s
waiver clause was found invalid, see Appellant’s Brief at 17-18, but that
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decision is not controlling or persuasive here.1 Instead, this case is
governed by our recent decision in Hinkal v. Pardoe, 133 A.3d 738, 743
(Pa. Super.) (en banc), appeal denied, 141 A.3d 481 (Pa. 2016), in which
we upheld a similar clause in a Gold’s Gym membership agreement as it
applied to a claim for personal injuries incurred during receipt of personal
training services at the gym. We noted with approval the trial court’s
holding in that case that “the exculpatory language at issue cannot be said
to violate public policy because it was an agreement between a private
individual and entities, and because it did not address matters of interest to
the public or the state.” 133 A.3d at 741-42. Although two of our respected
judges opined in dissent that an exculpatory clause in a contract to provide
personal training services at a gym sufficiently “implicates health and safety
concerns” that it should be held to contravene public policy, id. at 747-49
(dissenting opinion), the majority of the Court, sitting en banc, did not adopt
that view.
This case does not deal with personal training services. Instead, Toro
was injured when he slipped in the locker room of a fitness center where he
____________________________________________
1
The decision, Walters v. YMCA, 96 A.3d 323 (N.J. App. Div. 2014), did
not turn on any special public policy consideration involving health facilities.
Rather, the New Jersey court disfavored the clause at issue because, “if
applied literally, it would eviscerate the common law duty of care owed by
defendant to its invitees, regardless of the nature of the business activity
involved.” Id. at 328. If adopted, the reasoning of Walters would make
most exculpatory clauses invalid. That is not the law of Pennsylvania.
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was using the facilities. Where, as here, an individual is engaged in a
voluntary athletic or recreational activity, the Supreme Court of
Pennsylvania has held that an exculpatory clause in a contract for use of
facilities is not contrary to public policy. See Chepkevich, 2 A.3d at 1191
(skiing); see also McDonald v. Whitewater Challengers, Inc., 116 A.3d
99, 120 (Pa. Super. 2015) (whitewater rafting), appeal denied, 130 A.3d
1291 (Pa. 2015); Valeo v. Pocono Int’l Raceway Inc., 500 A.2d 492, 493
(Pa. Super. 1985) (automobile racing).
In Chepkevich, the plaintiff purchased a season pass at a ski resort.
At that time, she signed a release that provided that, by signing it, she
agreed not to sue the resort or its employees “if injured while using their
facilities regardless of any negligence on their part.” 2 A.3d at 1176.
Subsequently, the plaintiff was injured when she fell from a ski lift at the
resort, and she sued the resort, claiming that one of its employees had been
negligent. The trial court granted summary judgment in favor of the resort
on the basis of the signed release. Id. at 1175-766. The Supreme Court of
Pennsylvania agreed, holding that summary judgment was properly entered
based on the release and that the release was not contrary to public policy.
Id. at 1188, 1191.
Here, as in Chepkevich, Toro was engaged in a voluntary athletic or
recreational activity: going to the gym. Before he was injured, he signed an
agreement that explicitly provided that, by signing it, he waived all claims
for any injury he suffered at the L.A. Fitness facility, even if the injury was
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caused by the negligence of L.A. Fitness. As in Chepkevich, the Waiver
Clause in this case is not contrary to public policy, and the trial court
therefore was correct in reaching that conclusion. See Trial Court Opinion,
3/17/16, at 9. Accordingly, the clause is a complete bar to Toro’s negligence
claim.
Next, Toro argues that the Waiver Clause is invalid because the
Membership Agreement in which it appears is a contract of adhesion. See
Appellant’s Brief at 18-19. The trial court also rejected this argument,
explaining that Toro “chose to seek membership and he was not under any
commitment or duress to make use of the fitness center.” Trial Court
Opinion, 3/17/16, at 9. Once again, we agree.
“An adhesion contract is a ‘standard-form contract prepared by one
party, to be signed by the party in a weaker position, usu[ally] a consumer,
who adheres to the contract with little choice about the terms.’”
Chepkevich, 2 A.3d at 1190 (quoting BLACK’S LAW DICTIONARY 342 (8th ed.
2004)). However, an exculpatory agreement involving use of a commercial
facility for voluntary athletic or recreational activities is not considered a
contract of adhesion because “[t]he signer is under no compulsion, economic
or otherwise, to participate, much less to sign the exculpatory agreement,
because it does not relate to essential services . . . .” Id. at 1191. Relying
on this authority, the trial court correctly concluded that the Membership
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Agreement in this case was not a contract of adhesion. Trial Court Opinion,
3/17/16, at 9.2
Toro further argues that even if the Waiver Clause is valid, it is
unenforceable because he does not remember whether he read it. See
Appellant’s Brief at 20-21.3 Toro’s argument is unavailing. Failure to read
an agreement before signing it does not render the agreement either invalid
or unenforceable. See Hinkal, 133 A.3d at 743.
Finally, relying on Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d
1266 (Pa. Super. 2006), Toro argues that the Waiver Clause is
unenforceable because it was not sufficiently conspicuous to put him on
notice of its terms. See Appellant’s Brief at 20-22. In Beck-Hummel, this
Court held that there was a genuine issue of material fact as to whether a
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2
Toro likens his Membership Agreement to automobile insurance policies,
which are contracts of adhesion. See Appellant’s Brief at 19. However, we
find the cases relating to insurance to be inapposite here, in light of the
more pertinent authority relating to voluntary athletic and recreational
activities, such as Chepkevich. Moreover, in Pennsylvania, maintenance of
an automobile insurance policy is required by law as a condition for most
residents to operate a motor vehicle. See Motor Vehicle Financial
Responsibility Law, 75 Pa. C.S. §§ 1701 et seq.
3
As the trial court noted, Toro testified at his deposition that he read the
Membership Agreement. Trial Court Opinion, 3/17/16 at 10 (citing
deposition). After his deposition, and in response to Fitness’ motion for
summary judgment, Toro presented an affidavit in which he stated that he
did not read the entire agreement and did not recall reading the Waiver
Clause. See Plaintiff’s Response to Defendant’s Motion for Summary
Judgment, Ex. A. Because we hold that Toro is bound by the agreement
regardless of whether he read it, Toro’s affidavit cannot bar the grant of
summary judgment.
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release on a snow tubing ticket was enforceable where the buyer had neither
read nor signed the release and the release language was not conspicuous.
See Beck-Hummel, 902 A.2d at 1275. Notably, the court distinguished
cases involving signed releases. See id. at 1270.
Here, the trial court concluded that the Waiver Clause was sufficiently
conspicuous, under the standards set forth in Beck-Hummel, to put Toro on
notice of its terms. See Trial Court Opinion, 3/17/16, at 10. The trial court
noted that “[t]he Waiver Clause was emphasized in a box beginning with
bold capitalized letters specifically indicating the release of Defendant for
injuries allegedly sustained ‘on account of injury to Member’s person or
property, including injury leading to the death of Member, whether caused
by the active or passive negligence of L.A. Fitness or otherwise. . . .’” Id.
(quoting Membership Agreement). While we agree with the trial court’s
conclusion that the principles set forth in Beck-Hummel do not preclude
summary judgment for Fitness, our analysis differs.4
In Hinkal, 133 A.3d at 745, this Court held that Beck-Hummel is
inapplicable where, as here, a signed agreement exists between the parties.
We held that an exculpatory clause in a signed fitness center agreement
therefore is enforceable even if the member did not read it. We explained:
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4
“As an appellate court, we may affirm the decision of the lower court by
reasoning different than that used by the lower court.” Fennell v.
Nationwide Mut. Fire Ins. Co., 603 A.2d 1064, 1066 n.2 (Pa. Super.
1992), appeal denied, 617 A.2d 1274 (Pa. 1992) (table).
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The distinguishing factor between Beck–Hummel and the
instant matter that makes resort to Beck–Hummel inapposite is
the nature of the respective agreements. In Beck–Hummel,
the release provision was contained on the face of an entry
ticket purchased for use of a ski facility. The ticket did not
require a signature or an express acknowledgment that its terms
were read and accepted before using the facility. Nothing about
the ticket ensured that a purchaser would be aware of its release
provision. The purchasers were mere recipients of the
document. In short, there was not sufficient evidence to find
conclusively that there was a meeting of the minds that part of
the consideration for use of the facility was acceptance of a
release provision. In stark contrast, here there is a written,
signed and acknowledged agreement between the parties. Not
only is the written contract signed by Appellant, but also, as
previously stated, the contract contained an unambiguous
directive not to sign the agreement until reading both sides, a
clear pronouncement that the terms on both sides of the form
are part of the agreement, and a straightforward statement that
the agreement constitutes the entire agreement between the
parties. Accordingly, there is no need here to resort to proof of
notice, as in Beck–Hummel, to discern if assent to an
agreement had been reached.
Hinkal, 133 A.3d at 744–45.
Similarly, here Toro signed the Membership Agreement, which stated
that by signing it, he acknowledged that he “has read and understands the
entire agreement including but not limited to the . . . Release and Waiver of
Liability and Indemnity . . . .” Trial Court Opinion, 3/17/16, at 4 (quoting
Membership Agreement). Therefore, as in Hinkal, there is no need to resort
to proof of notice or an analysis of the clause’s conspicuity to determine if
there was a meeting of the minds. Toro’s signature of the Membership
Agreement formed a valid contract, and he is bound by its terms. We
therefore find no error in the trial court’s grant of summary judgment in this
regard.
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Negligence
The other ground upon which the trial court granted summary
judgment was that Toro failed to establish that Fitness was negligent. We
agree with the trial court’s analysis, and hold that summary judgment was
also proper on that basis.
The trial court explained the legal principles that apply in a premises
liability action:
Under Pennsylvania law, “[t]he mere fact that an accident
occurred does not give rise to an inference that the injured
person was the victim of negligence.” Estate of Swift by Swift
v. Northeastern Hosp., 690 A.2d 719, 722 (Pa. Super. Ct.
1997). A plaintiff must prove four elements to establish
negligence by a defendant: (1) a duty or obligation recognized
by law; (2) a breach of that duty; (3) a causal connection
between the conduct and the resulting injury; and (4) actual
damages. Id. “The nature of the duty which is owed in any
given situation hinges primarily upon the relationship between
the parties at the time of the plaintiff[’]s injury.” Id.
Trial Court Opinion, 3/17/16, at 5. The trial court explained that where, as
here, the plaintiff is a business invitee, the plaintiff must show that the
property owner either created or had actual or constructive notice of the
dangerous condition. Id.
The trial court concluded that Toro could not prevail on his negligence
claim because he had not offered any evidence that Fitness caused the floor
to be wet or had actual or constructive notice of its condition. See Trial
Court Opinion, 3/17/16, at 7. The court explained:
There is no evidence that Defendant caused the floor to be wet.
Plaintiff testified that he did not know how the floor became wet,
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and could only guess as to the source. Additionally, there is no
evidence that Defendant had actual or constructive knowledge of
the floor’s wet condition. Plaintiff also admitted that he did not
know how long the floor was wet prior to the alleged incident.
There were no reports from Defendant’s staff of the floor being
wet prior to Plaintiff’s accident. Plaintiff has failed to satisfy his
burden of proof as to his claims of negligence, entitling
Defendant to summary judgment because there is no evidence
that the floor was wet for such a length of time that Defendant
should have been aware of it, and could be charged with
constructive notice.
Id. (citations to the record omitted).
Toro argues that the trial court erred because a reasonable jury could
find that Fitness had constructive notice of the wet floor. Appellant’s Brief at
12-13. Relying on McKelvey v. Juniata Borough, 108 A. 205 (Pa. 1919),
Toro argues that a jury could infer from the amount and appearance of the
water — which he described as an unusual buildup of soapy, cloudy water,
which he had never seen before — “that the condition existed for a sufficient
period of time such that [Fitness] should have become aware of it prior to
[his] fall.” Appellant’s Brief at 13. While the trial court’s opinion does not
specifically address McKelvey, we find that case to be inapposite. In
McKelvey, the Court held that the defendant had constructive notice of a
two-foot deep hole in a road based on the nature of the condition and the
length of time it existed prior to the plaintiff’s fall (at least one month).
McKelvey, 108 A. at 205-6. Here, by contrast, the condition was transitory,
and there was no evidence as to how long it existed before Toro fell.
Toro also argues that because Fitness does not keep accurate logs of
its inspections and maintenance, “the condition could have existed for a
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long period of time.” Appellant’s Brief at 13 (emphasis added). Again, the
trial court did not address this particular aspect of Toro’s argument, but we
find it to be meritless because it is based on mere speculation. See Krauss
v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa. Super. 2014) (“A plaintiff
cannot survive summary judgment when mere speculation would be
required for the jury to find in plaintiff’s favor”).
Finally, Toro argues that Fitness’ failure to place mats on the locker
room floor was negligent as a matter of law. See Appellant’s Brief at 14-16.
The trial court explained the duty owed to invitees, as set forth in Section
343 of the Restatement (Second) of Torts (1965):
[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. 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.
Trial Court Opinion, 3/17/16, at 7 (quoting Rodriguez v. Kravco Simon
Co., 111 A.3d 1191, 1193 (Pa. Super. 2015)). Under these standards, the
trial court correctly concluded that there was no evidence that the absence
of floor mats was negligent. See Trial Court Opinion, 3/17/16, at 8. There
was no evidence that Fitness knew or had reason to know of a harmful
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condition in the locker room that required it to install floor mats. The
uncontradicted evidence, rather, was that Fitness had never seen a buildup
of soapy water on the locker room floor prior to this accident, and Toro
himself testified that he too had never seen such a condition. Toro proffered
no evidence that floor mats are always required in locker rooms or that
there was anything peculiar about this floor that required them.
Toro argues that Fitness should be charged with knowing that the floor
would become wet, or, at least that a jury could conclude that the floor
would become wet on a regular basis. He further argues that the trial court
should have taken judicial notice of the fact that “[v]irtually any tile will
become slippery when water and/or soap are allowed to accumulate
thereon.” Appellant’s Brief at 15 (citing Miller v. Peter J. Schmitt & Co.,
592 A.2d 1324, 1328–29 (Pa. Super. 1991) (defendant knew that
independent contractor would be delivering ice on a hot day, would likely
use an open cart to transport the ice, and usually carried a mop because of
the possibility of water dripping onto the floor), appeal denied, 602 A.2d
860 (Pa. 1992) (table); Cohen v. Food Fair, 155 A.2d 441, 443 (Pa. Super.
1959) (store manager knew floor became wet on rainy days and usually put
gravel on the floor, but did not use gravel on the day of the incident);
Blakely v. St. Marguerite’s Mut. Beneficial Soc’y, 10 Pa. D. & C. 5th
248, 257 (C.P. Lackawanna 2009) (routine use of floor mats, which were
missing at time of incident, indicated that defendant had notice of slippery
floor near fryer)).
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J-A24012-16
However, Toro’s argument fails because it is not based on evidence.
As the trial court concluded, Toro offered no evidence that the floor on which
he fell had a tendency to be wet on a regular basis, or that Fitness had any
other reason to know that the floor would be wet when Toro fell. See Trial
Court Opinion, 3/17/16, at 8. The absence of evidence that Fitness had
knowledge or notice of the wet floor distinguishes Toro’s case from the cases
upon which he relies in his brief. Accordingly, the trial court correctly
granted summary judgment in favor of Fitness on this issue. See Trial Court
Opinion, 3/17/16, at 8.
For the foregoing reasons, we affirm the trial court’s entry of summary
judgment in favor of Fitness.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2016
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