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.
J-A24012-16



     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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J-A24012-16


            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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J-A24012-16



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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J-A24012-16



      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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J-A24012-16


      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




                                    -8-
J-A24012-16



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.



                                           -9-
J-A24012-16



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

                                      - 10 -
J-A24012-16



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




                                         - 11 -
J-A24012-16



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
____________________________________________


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:
____________________________________________


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).



                                          - 13 -
J-A24012-16


             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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J-A24012-16



                                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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J-A24012-16


      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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J-A24012-16



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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J-A24012-16



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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      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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