J-A22026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CAROL SCHNEIDER AND ERIK : IN THE SUPERIOR COURT OF
SCHNEIDER : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 458 EDA 2017
GIANT FOOD STORES, LLC, AND :
GIANT FOOD STORE #6043 :
Appeal from the Order Entered January 9, 2017
In the Court of Common Pleas of Northampton County Civil Division at
No(s): C0048CV2015-1548
BEFORE: BOWES, J., LAZARUS, J., and PLATT*, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 14, 2018
Carol and Erik Schneider appeal from the January 9, 2017 order
granting summary judgment in favor of Giant Food Stores, LLC, and Giant
Food Store #6043 (collectively “Giant”). We affirm.
At approximately 4:45 p.m. on July 30, 2013, Carol Schneider entered
the Giant Food Store located at 1880 Leithsville Road in Hellertown,
Northampton County. After selecting the items she intended to purchase,
she proceeded to the checkout area at the front of the store. As she
approached a self-checkout register, her right leg slipped out from under her
and her left knee touched the floor. After she righted herself, she noticed
that her pant leg was wet.
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* Retired Senior Judge assigned to the Superior Court.
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Mrs. Schneider approached the self-checkout attendant, later identified
as Melissa Regalis. She notified Ms. Regalis that she had fallen and pointed
to the area where she fell. Ms. Regalis assured her that she would clean up
the area. Mrs. Schneider paid for her groceries, and, as she exited the
store, she stopped at the customer service desk and informed the service
representative that she had slipped and fallen.
The Schneiders filed the instant complaint against Giant on February
18, 2015. They alleged that the puddle of liquid that caused Mrs. Schneider
to slip was near a refrigerated display case located within the self-checkout
area visible from the platform where the attendant was located. They
averred further that Giant created the dangerous condition and/or that Giant
knew or should have known of it with reasonable inspection. Giant was
negligent as it failed to inspect and discover the hazard and either warn or
correct it, although it had ample time to do so. Mrs. Schneider pled that she
sustained injuries to her left knee, aggravation of pre-existing tendinitis and
arthritis in that knee, and back and neck pain due to the fall. Her husband
made a claim for loss of consortium. Giant filed an answer denying that any
puddle of liquid or dangerous condition existed or that it was negligent.
Following discovery, Giant filed a motion for summary judgment. It
alleged that since the Schneiders had adduced no evidence regarding the
origin of the puddle of clear liquid or how long it was present on the floor
prior to the incident, it had failed to prove that Giant had actual or
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constructive notice of the condition. The Schneiders countered that notice of
the condition could reasonably be inferred from several facts elicited during
Mrs. Schneider’s deposition. First, Mrs. Schneider testified that Ms. Regalis
looked directly to the spot where she fell without having been told, and the
attendant assured her that it would be cleaned up. Second, according to
Mrs. Schneider, the liquid was visible from the spot where Ms. Regalis was
standing, and her pant leg was wet after the fall. Finally, the Schneiders
maintained that it could be inferred from the fact that a soda case located
near the area of her fall was subsequently relocated that it was the cause of
the puddle.
The trial court granted summary judgment based on a lack of evidence
of actual or constructive notice. The Schneiders timely appealed, complied
with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, and the trial court issued its Rule 1925(a)
opinion. The Schneiders raise three issues for our review:
A. Did the trial court commit an error of law or an abuse of
discretion by granting summary judgment as Defendant had
destroyed or withheld relevant evidence necessitating that the
matter be submitted to a jury?
B. Did the trial court commit an error of law or an abuse of
discretion by granting summary judgment in favor of
Defendant as the Court relied exclusively on oral testimony?
C. Did the trial court committed [sic] an error of law and abuse
of discretion by granting summary judgment in favor of
Defendant?
Appellants’ brief at 4 (unnecessary capitalization omitted).
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All of the Schneiders’ issues challenge the trial court’s grant of
summary judgment and the dismissal of their claims. The following
principles inform our review. “[S]ummary judgment is appropriate only in
those cases where the record clearly demonstrates that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a
matter of law.” Truax v. Roulhac, 126 A.3d 991, 996 (Pa.Super. 2015)
(quoting Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010).
In ruling on such a motion, “the trial court must take all facts of record and
reasonable inferences therefrom in a light most favorable to the non-moving
party” and “resolve all doubts as to the existence of a genuine issue of
material fact against the moving party.” Id. "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.” Babb v. Ctr.
Cmty. Hosp., 47 A.3d 1214, 1223 (Pa.Super. 2012) (citations omitted).
“[F]ailure of a non-moving party to adduce sufficient evidence on an issue
essential 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.” Id.
On appeal, this Court
may reverse a grant of summary judgment if there has been an
error of law or an abuse of discretion. But the issue as to
whether there are no genuine issues as to any material fact
presents a question of law, and therefore, on that question our
standard of review is de novo. This means we need not defer to
the determinations made by the lower tribunals.
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Truax, supra at 996 (quoting Weaver v. Lancaster Newspapers, Inc.,
926 A.2d 899, 902-03 (Pa. 2007)). “To the extent that this Court must
resolve a question of law, we shall review the grant of summary judgment in
the context of the entire record.” Id. at 903.
Thus, our responsibility as an appellate court is to determine
whether the record either establishes that the material facts are
undisputed or contains insufficient evidence of facts to make out
a prima facie cause of action, such that there is no issue to be
decided by the fact-finder. If there is evidence that would allow a
fact-finder to render a verdict in favor of the non-moving party,
then summary judgment should be denied.
Id., (quoting Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa.Super.
2011)) (citations omitted).
This is a premises liability case. It is undisputed that Mrs. Schneider
was a customer of Giant at the time of the fall, and that business visitors are
invitees and entitled to the highest duty of care. “The landowner is under an
affirmative duty to protect a business visitor not only against known dangers
but also against those which might be discovered with reasonable care.”
Emge v. Hogosky, 712 A.2d 315, 317 (Pa.Super. 1998) (citation omitted).
“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 or reasonable care would
discover the condition, and should realize that it
involves an unreasonable risk 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
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(c) fails to exercise reasonable care to protect them
against the danger.
Campisi v. Acme Mkts., 915 A.2d 117, 119 (Pa.Super. 2006); see also
Restatement (Second) of Torts § 343.
Thus, in order to recover in a slip and fall case in a store, a plaintiff
bears the burden of proving that the owner knew, or with the exercise of
reasonable care, should have known, of the existence of the harmful
condition. Where the storeowner created the harmful condition, he is
deemed to have actual or constructive notice of the condition. Zito v. Merit
Outlet Stores, 647 A.2d 573, 574-75 (Pa.Super. 1994). Where the non-
moving party bears the burden of proof of a contested fact, but fails to
produce sufficient evidence, summary judgment is properly granted.
Pa.R.A.P. 1035.3(d); Ertel v. The Patriot News, 674 A.2d 1038, 1042 (Pa.
1996). The trial court granted summary judgment after finding that the
Schneiders failed to introduce sufficient evidence that Giant created the
hazard or had actual or constructive notice of the condition.
The Schneiders allege first that summary judgment should not have
been entered because Giant withheld or destroyed relevant video evidence
of the incident recorded on surveillance equipment located in the front of the
store. Specifically, they complain that although Giant retained and provided
video from one camera angle commencing at 4:40 p.m. and the other
camera angle from 4:55 p.m., both of which show the fall, Giant’s failure to
preserve the entire video constituted spoliation of the evidence and that
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sanctions are appropriate.1 The sanction they propose is that summary
judgment be reversed and the matter remanded.
“‘Spoliation of evidence’ is the non-preservation or significant
alteration of evidence for pending or future litigation.” PTSI, Inc. v. Haley,
71 A.3d 304, 315 (Pa.Super. 2013) (quoting Pyeritz v. Commonwealth of
Pennsylvania, 32 A.3d 687, 692 (Pa. 2011)). Where it is determined that
a party has proceeded to alter or dispose of relevant evidence, trial courts
have the discretion to impose sanctions against the spoliator. PTSI, Inc.,
supra at 315. In determining what sanction is appropriate, the court
weighs factors such as the degree of fault of the spoliator, the prejudice to
the opposing party, and whether there are lesser sanctions that will serve as
a deterrent to the spoliator’s conduct while avoiding substantial unfairness to
the opposing party. Id. at 316.
However, we do not reach the spoliation question as the Schneiders
did not file a motion to compel or seek sanctions for spoliation in the trial
court. Thus, they failed to preserve this issue for purposes of this appeal. 2
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1 The video captured from one camera angle depicted the checkout area for
the fifteen minutes preceding Mrs. Schneider’s fall.
2 One of the sanctions authorized for spoliation includes a jury instruction
permitting the jury to draw a negative inference that evidence not produced
would have been unfavorable to the party who failed to produce it.
However, since spoliation was not raised in the trial court as either a motion
or a defense to summary judgment, the trial court did not decide whether
spoliation occurred.
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See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”). Furthermore, even if we
were to treat the Schneiders’ spoliation claim as an argument in opposition
to summary judgment, it is waived pursuant to Pa.R.C.P. 1035.3. In
Lineberger v. Wyeth, 894 A.2d 141, 147 (Pa.Super. 2006), we held that to
the extent that prior case law allowed presentation of new arguments in
opposition to summary judgment, “it stands in derogation of Rules 1035.2
and 1035.3.” The non-moving party must raise all defenses or grounds for
relief before the trial court as we are an error-correcting court and may not
reverse where the trial court was not given an opportunity to consider the
argument. On either basis, the claim is waived.
The Schneiders’ second issue fares no better. They allege that the
trial court erred in making credibility determinations based solely on oral
testimony in the form of depositions. In addition, the Schneiders complain
that the trial court disregarded the inferences favorable to them that could
be drawn from the surveillance video.
Preliminarily, we note that the factual predicate for the Schneiders’
argument is not supported by the record. The trial court did not consider
only oral testimony; it also viewed the surveillance video depicting the
incident. Furthermore, the Schneiders, the non-moving party, proffered Ms.
Regalis’s deposition testimony and urged the court to find her testimony that
she could not recall the incident to be incredible. Moreover, the prohibition
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against relying solely upon oral testimony in deciding a motion for summary
judgment is generally referred to as the Nanty-Glo rule. See Nanty-Glo v.
American Surety Co., 163 A. 523 (Pa. 1932). The rule only precludes
summary judgment “where the moving party relies exclusively on oral
testimony, either through testimonial affidavits or deposition testimony, to
establish the absence of a genuine issue of material fact except where the
moving party supports the motion by using admissions of the opposing party
or the opposing party's own witness.” Lineberger, supra at 149 (quoting
First Philson Bank, N.A. v. Hartford Fire Ins. Co., 727 A.2d 584, 587
(Pa.Super. 1999)) (emphasis added). That did not occur herein.
Moreover, we find the video surveillance tape, which depicted the
following, to be most instructive. In the moments preceding the fall, Ms.
Regalis, the attendant charged with supervising the self-checkout area
inspecting that area for spills and hazards,3 was shown surveilling the area
and using a towel to wipe up spills on the equipment and floors. Mrs.
Schneider approached the checkout with groceries in her arms, her right foot
slipped, and her left knee went down and hit the floor. Mrs. Schneider
quickly righted herself, and walked over to Ms. Regalis. As she was talking
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3 The store manager testified about the clean sweep program. A Giant
employee would travel hourly through the store looking for spills and
hazards, and scan in his whereabouts. It did not include the checkout area
as the self-checkout attendant was responsible for inspecting and cleaning
that area.
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to Ms. Regalis, Mrs. Schneider simultaneously pointed with her right hand
and turned her head in the direction of the spill. Only, then, after being
prompted, did Ms. Regalis look beyond her to the area of the spill.
The Schneiders contend that the trial court should have inferred Ms.
Regalis’ prior knowledge of the spill from the fact that she looked in its
direction prior to being told of its location. Giant counters that the video
shows that Mrs. Schneider looked and pointed out the area where the spill
occurred to Ms. Regalis before Ms. Regalis looked in that direction. Giant
directs our attention to Sellers v. Twp. of Abington, 106 A.3d 679, 690
(Pa. 2014), where the plaintiffs’ version of the events was contradicted by
in-car camera footage from a police vehicle. The trial court granted
summary judgment in the defendant’s favor based on the video, and the
plaintiffs accused the trial court of intruding into the jury’s fact-finding
realm. Our Supreme Court disagreed. It embraced the rationale of the
United States Supreme Court in Scott v. Harris, 550 U.S. 372, 380 (2007),
that where video evidence contradicts the non-moving party’s version of
events, the court should not adopt that party’s version of facts for purposes
of ruling on a summary judgment. The Sellers Court concluded that,
“witness accounts seeking to contradict an unambiguous video recording do
not create a triable issue of fact.” Sellers, supra at 380.
Herein, the video, which did not include audio, did not flatly contradict
Mrs. Schneider’s testimony, but added additional information. While we
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assume that for purposes of summary judgment that Mrs. Schneider did not
tell Ms. Regalis where the spill was located, the video confirms that she
pointed to the area and turned her head and looked in the direction of the
spill. Only then did Ms. Regalis follow her indication and look towards the
area of the spill. Thus, the video evidence undercuts the basis for drawing
any inference of prior knowledge or notice.
Mrs. Schneider presented no evidence as to how long the clear liquid
was present on the floor before she fell. We agree with the trial court that,
“a jury could at most speculate concerning when the spill took place or how
long the liquid was on the floor.” Trial Court Opinion, 1/8/17, at 15. The
Schneiders offered no direct evidence that the hazard was created by Giant
employees or equipment from which notice could be imputed to Giant.
Evidence that a soda case located near the area of Mrs. Schneider’s fall
subsequently was relocated, without more, would not support any
reasonable inference that it was the origin of the clear liquid puddle. In
sum, there was no evidence from which the factfinder could reasonably
conclude that Giant knew or should have known of the dangerous condition
with the exercise of reasonable care.
Since the evidence failed to demonstrate any genuine issue of material
fact that would preclude the entry of summary judgment based on the lack
of knowledge or notice, we affirm the trial court’s grant of summary
judgment.
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Order affirmed.
Judge Platt joins the memorandum.
Judge Lazarus files a concurring dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/18
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