                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 18-3313
                                      _____________

                                  ARTHUR PACE, JR.,
                                          Appellant

                                             v.

                            WAL-MART STORES EAST, LP

                                      _____________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                   (No. 2-17-cv-01829)
                     District Judge: Honorable Michael M. Baylson
                                      ___________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     June 27, 2019
                                     ___________

    Before: CHAGARES, GREENAWAY, JR., and GREENBERG, Circuit Judges.

                                 (Filed: January 28, 2020)

                                       ___________

                                        OPINION *
                                      ____________




       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
CHAGARES, Circuit Judge.

       Plaintiff Arthur Pace instituted this slip and fall negligence lawsuit against Wal-

Mart Stores East, L.P. (“Wal-Mart”), and the District Court granted Wal-Mart summary

judgment. The District Court found that Pace failed to present any evidence that Wal-

Mart had notice of the liquid on the floor that allegedly caused Pace to slip, fall, and

injure himself. Because either actual or constructive notice of the relevant hazard is an

essential element of slip-and-fall premises liability under Pennsylvania law, the District

Court concluded that summary judgment was appropriate. For the following reasons, we

will affirm.

                                              I.

       We write for the parties and so recount only the facts necessary to our decision.

Our recitation of facts is construed in the light most favorable to Pace. On August 23,

2019, Pace was shopping at a Wal-Mart in Willow Grove, Pennsylvania. In the produce

section, Pace slipped and fell due to a liquid substance on the floor, which Pace says may

have come from grapes. Pace acknowledges that he does not know how the liquid came

to be on the floor or how long it was there before he fell. After the incident, Pace

suffered persistent pain in his back and right knee, and he eventually underwent a total

right knee replacement.

       Pace brought suit in the Court of Common Pleas for Philadelphia County in early

2017. Wal-Mart subsequently removed the case to federal court. Prior to filing his suit,

Pace’s counsel sent a letter to Wal-Mart requesting that it retain (among other items) six



                                              2
hours of pre-incident and three hours of post-incident surveillance video footage of the

area where Pace fell.

       During discovery, Wal-Mart’s Asset Protection Associate, Fabian Wright, testified

in his deposition that he maintains the Willow Grove Wal-Mart store’s video surveillance

records. He also testified that no video recordings had captured Pace’s accident and that

no recordings related to Pace’s fall had been destroyed. According to Wright, Pace fell in

a “blind spot” in the produce section that was not covered by the store’s surveillance

cameras. Appendix (“App.”) 402. Pace filed a motion to compel Wal-Mart to create and

produce a map of the surveillance system’s blind spots in the produce section.

       The manager of the Willow Grove Wal-Mart, Ikeem Shaw, testified in his

deposition that he was “not . . . certain” if there was any area in the produce section not

covered by at least one security camera and that he had never looked at the cameras to

determine if there is, in fact, an area that is not covered. Supp. App. 574–75. Wal-Mart’s

corporate designee, Yvette Lomax, testified in her deposition about Wal-Mart’s policies

for ensuring that the floors are clear of spills or debris. Lomax stated that employees

conduct “safety sweeps” throughout the day as needed but that Wal-Mart does not

document when they occur. App. 203–05.

       The District Court heard oral argument on the motion for summary judgment on

July 11, 2018. As a result of that hearing, Pace filed the motion to compel Wal-Mart to

produce the surveillance camera map, and Wal-Mart filed a motion for protective order

asking the court to limit discovery to existing surveillance video footage. On August 23,

2018, the District Court heard additional oral argument on the motion for summary

                                              3
judgment as well as argument on the motion to compel and the motion for protective

order. On September 18, 2018, the District Court granted Wal-Mart’s motion for

summary judgment, denied Pace’s motion to compel, and denied as moot Wal-Mart’s

motion for protective order. The District Court concluded that Pace failed to present any

evidence that Wal-Mart had either actual or constructive notice of the hazardous

condition, which is a threshold requirement for slip-and-fall premises liability based on

negligence. In ruling on the motion for summary judgment, the District Court rejected

Pace’s allegation that Wal-Mart committed spoliation of evidence because Pace failed to

make any showing that Wal-Mart actually withheld or destroyed any evidence. Pace

timely appealed.

                                            II.

       The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332, and we

have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District

Court’s grant of summary judgment. Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d

245, 251 (3d Cir. 2014). “Summary judgment is appropriate only if there ‘is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Id. (quoting Fed. R. Civ. P. 56(a)). “We view the facts in the light most favorable to the

non-moving party.” Id. However, we review the District Court’s refusal to find

spoliation of evidence for abuse of discretion. In re Hechinger Inv. Co. of Del., Inc., 489

F.3d 568, 574 (3d Cir. 2007).




                                             4
                                             III.

       Under Pennsylvania law, “[w]ith respect to conditions on the land which are

known to or discoverable by the possessor, the possessor is subject to liability only if [it],

       (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 invitee, 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.

Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983) (adopting the test from Restatement

(Second) of Torts § 343 (1965)). In a slip-and-fall premises liability action, the plaintiff

“must show that the proprietor knew . . . of the existence of the harmful condition.”

Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1193 (Pa. Super. Ct. 2015) (quoting

Zito v. Merit Outlet Stores, 647 A.2d 573, 575 (Pa. Super. Ct. 1994)). “To establish

notice, an ‘invitee must prove either the proprietor . . . had a hand in creating the harmful

condition, or . . . had actual or constructive notice of such condition.’” Estate of Swift v.

Ne. Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super. Ct. 1997).

       Pace does not argue that Wal-Mart had actual notice of the liquid that caused him

to slip and fall. Instead, Pace relies on establishing constructive notice. He alleges that

the District Court erred in granting summary judgment because (1) Wal-Mart suppressed,

or “spoliated,” video evidence of his accident that would have established whether it

knew, or should have known, about the hazard that caused his fall, and (2) the weight of

the rest of the evidence creates a dispute of material fact as to whether Wal-Mart knew,

or should have known, about the hazard.


                                              5
                                              A.

       Pace first argues that Wal-Mart destroyed or suppressed surveillance video footage

that captured his fall. He claims that this missing video footage would have established

that Wal-Mart created or knew about the liquid on the floor, and he contends that the

District Court abused its discretion in not finding spoliation and submitting the issue to a

jury with an adverse inference instruction. According to Pace, a proper finding regarding

spoliation would have created a dispute of material fact precluding summary judgment.

       “Spoliation [of evidence] occurs where: the evidence was in [one] party’s control;

the evidence is relevant to the claims or defenses in the case; there has been actual

suppression or withholding of evidence; and, the duty to preserve the evidence was

reasonably foreseeable to th[at] party.” Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73

(3d Cir. 2012) (citing Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir.

1995)). When a certain article is “relevant to an issue in a case, the trier of fact generally

may receive the fact of the [article’s] nonproduction or destruction as evidence that the

party that has prevented production did so out of the well-founded fear that the contents

would harm him.” Brewer, 72 F.3d at 334 (citations omitted). But “[n]o unfavorable

inference arises when the circumstances indicate that the document or article in question

has been lost or accidentally destroyed, or where the failure to produce it is otherwise

properly accounted for.” Id.

       The District Court did not abuse its discretion in refusing to find spoliation here

because Pace cannot show that the alleged video evidence even existed in the first place,

much less that it was actually suppressed, withheld, or destroyed. See id.; Bull, 665 F.3d

                                              6
at 73. 1 Therefore, Pace cannot rely on his allegation of suppressed video evidence to

create a dispute of material fact that would defeat Wal-Mart’s motion for summary

judgment.

                                             B.

       Pace’s argument that other evidence in the record precludes summary judgment

falls flat. Other than claiming that he is entitled to an evidentiary inference based on

spoliation, Pace presents no record evidence showing that Wal-Mart either created, or had

constructive notice of, the liquid on the floor that caused his accident. Pace lacks any

evidence of how, why, or for how long the liquid that caused his fall was on the floor.

Pace admits to not knowing how long it had been on the floor or how it got there. Wal-

Mart produced video footage of the produce section at the time of the accident, but that

footage did not show Pace’s fall. Wright testified that the fall occurred in a “blind spot”



1
   In his June 19, 2019 motion for leave to file a supplemental appendix, Pace cites to
Marshall v. Brown’s IA, LLC, 213 A.3d 263, 266 (Pa. Super. Ct. 2019), reargument
denied (Aug. 21, 2019), to support his spoliation argument. In that case, the intermediate
state appellate court ruled that the trial court should have given the jury an adverse
inference instruction based on the defendant’s retaining and producing only “a small
fraction of the requested video” showing the scene of a slip-and-fall before and after the
accident. Id. at 272–73. While facially similar, Marshall is inapposite. First, whether a
litigant is entitled to an adverse inference based on spoliation is a procedural question
governed by federal law in diversity cases, so Pennsylvania state court decisions on the
issue are merely persuasive. Cf. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 760 n. 31
(3d Cir. 1994) (declining to apply state procedural law reasoning that “Pennsylvania
substantive law does not change the federal standard for the admissibility of expert
testimony”); Salas by Salas v. Wang, 846 F.2d 897, 905–06 (3d Cir. 1988) (noting that
we are “bound to apply the federal rules so long as they can rationally be viewed as
procedural”). Second, in Marshall the video surveillance system actually captured the
plaintiff’s accident, so the defendant’s failure to retain and produce video evidence
created a stronger case for finding spoliation.
                                              7
in the store. Shaw could not speak to whether surveillance video could have captured the

fall, and Lomax acknowledged that there was no way of knowing how long before Pace’s

fall the last employee “safety sweep” would have, or should have, occurred. Presented

with nothing to establish that Wal-Mart either created the hazard or had constructive

notice of it, the District Court properly granted Wal-Mart’s motion for summary

judgment.

                                           IV.

      For the foregoing reasons, we will affirm the judgment of the District Court.




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