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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.




____________________________________
* 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

____________________________________________


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

____________________________________________


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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