J-S37028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MONIQUE JOHNSON                                 IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellant

                   v.

GABRIEL BROTHERS, INC.

                        Appellee                     No. 476 MDA 2016


              Appeal from the Judgment Entered March 2, 2016
              In the Court of Common Pleas of Dauphin County
                  Civil Division at No(s): 2015-CV-00692-CV


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED OCTOBER 20, 2017

     Monique Johnson appeals from the judgment entered on March 2,

2016 in the Dauphin County Court of Common Pleas in favor of Gabriel

Brothers, Inc. (“Gabriel”). We affirm.

     This matter arises out of a slip-and-fall that occurred on October 18,

2012, at a store owned by Gabriel in Harrisburg.        Specifically, Johnson

alleged that she “tripped and fell after stepping on a clothes hanger” that

was on the floor. Memorandum and Order (Summary Judgment), 3/2/16, at

1 (unpaginated) (“Trial Ct. Op.”).    On January 29, 2015, Johnson filed a

complaint against Gabriel sounding in negligence.       On March 5, 2015,

Gabriel filed an answer with new matter.       On March 24, 2015, Johnson

replied to Gabriel’s new matter.     Thereafter, on August 25, 2015, Gabriel

filed a motion for summary judgment.       On September 24, 2015, Johnson
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responded to Gabriel’s motion, and on October 19, 2015, Gabriel filed a

reply. On March 2, 2016, the trial court entered a memorandum and order

granting Gabriel’s motion, entering judgment in Gabriel’s favor, and

dismissing any and all claims against Gabriel with prejudice. Johnson timely

filed a notice of appeal.

      Johnson raises the following issue on appeal:

         1. Whether the trial court abused its discretion and
         otherwise committed an error of law when it improperly
         granted [Gabriel]’s Motion for Summary Judgment when a
         genuine issue of material fact exists as to [Gabriel]’s
         negligent maintenance of its store property and whether
         [Gabriel] had actual or constructive notice of the self-
         created dangerous condition?

Johnson’s Br. at 5.

      It is well-established that “summary 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.) (quoting

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa.

2002)), app. denied, 129 A.3d 1244 (Pa. 2015).        The moving party bears

the burden of proving that no genuine issue of material fact exists .

Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 159 (Pa. 2009). “[T]he

trial court must take all facts of record and reasonable inferences therefrom

in a light most favorable to the non-moving party.      In so doing, the trial

court must resolve all doubts as to the existence of a genuine issue of


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material fact against the moving party.” Truax, 126 A.3d at 996 (internal

citation omitted).

      We have explained our standard of review as follows:

         [A]n appellate 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.

Id. (quoting Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 902–

03 (Pa. 2007)).

      In a slip and fall case where, as here, the plaintiff is an invitee, she

must prove that the proprietor either had a hand in creating the harmful

condition or had actual or constructive notice of such condition. Moultrey

v. Great A & P Tea Co., 422 A.2d 593, 598 (Pa.Super. 1980). “[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.” Zito v. Merit Outlet Stores, 647 A.2d

573, 575 (Pa.Super. 1994) (quoting Moultrey, 422 A.2d at 596).           Where

the harmful condition is transitory and the evidence indicates that the

condition

         is traceable to persons other than those for whom the
         owner is, strictly speaking, ordinarily accountable, the jury
         may not consider the owner’s ultimate liability in the
         absence of other evidence which tends to prove that the
         owner had actual notice of the condition or that the

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         condition existed for such a length of time that in the
         exercise of reasonable care the owner should have known
         of it.

Moultrey, 422 A.2d at 596. Furthermore, “[w]hat constitutes constructive

notice must depend on the circumstances of each case, but one of the most

important factors to be taken into consideration is the time elapsing between

the origin of the defect or hazardous condition and the accident.” Neve v.

Insalaco’s, 771 A.2d 786, 791 (Pa.Super. 2001) (Rogers v. Horn &

Hardart Baking Co., 127 A.2d 762, 764 (Pa.Super. 1956)).

      Here, Johnson argues that Gabriel had actual notice because it

“created the hazard” and otherwise had constructive notice because it

“would have known of the . . . condition if its inspection and maintenance

protocols were not substandard and negligent.”          Johnson’s Br. at 18.

Johnson contends that Gabriel’s movement of merchandise around the store,

its knowledge that clothes hangers are commonly found on the floor, its lack

of adequate inspection training, policies, procedures, and documentation, a

history of slip-and-falls in its stores, and Gabriel’s failure to preserve video

footage create genuine issues of material fact as to Gabriel’s negligence and

actual or constructive notice.

      We first examine whether there is a genuine issue of material fact that

Gabriel created the harmful condition. In Myers v. Penn Traffic Co., we

affirmed the grant of summary judgment in favor of the appellee

supermarket, where the appellant alleged, in part, that she slipped on a



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grape on the floor.    606 A.2d 926, 929 (Pa.Super. 1992).        This Court

determined that “appellant . . . presented no evidence as to the cause of the

presence of the grape on the floor.” Id. at 931. Moreover, we concluded

that

         negligence is not established by the fact that produce
         frequently fell to the floor when employees filled the
         produce cases. Furthermore, a lack of reasonable care is
         not established merely because the employee working in
         the produce department was on a break when appellant
         fell. These facts do not lead to a reasonable inference that
         appellee or its agents were negligent and that negligence
         caused the grape to be on the floor. A jury would not
         properly be able to reach a conclusion of negligence on
         these facts as such a conclusion would be based on guess
         or conjecture.

Id.

       Similarly here, that Gabriel employees move merchandise around the

store during store hours and that clothes hangers are commonly found on

the floor of the store do not lead to a reasonable inference that Gabriel was

negligent or that its or its employees’ negligence caused the hanger to be on

the floor. As in Myers, supra, “[a] jury would not properly be able to reach

a conclusion of negligence on these facts as such a conclusion would be

based on guess or conjecture.” Thus, we conclude that there is no genuine

issue of material fact as to whether Gabriel created the harmful condition.

In addition, because Johnson’s claim regarding Gabriel’s actual notice

depends on Gabriel having created the harmful condition, we conclude that




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there is no genuine issue of material fact that Gabriel did not have actual

notice of the condition.

      We next examine whether there is a genuine issue of material fact

regarding Gabriel’s constructive notice of the clothes hanger on the floor.

      First, Johnson contends that Gabriel would have had constructive

notice of the hanger if its “inspection and maintenance protocols were not

substandard and negligent.”      Johnson’s Br. at 18.     Johnson argues that

Gabriel failed to: properly train its employees for floor inspections; assign

specific employees to conduct floor inspections; set specific floor inspection

routes; set specific times for floor inspections; and keep logs or records of

floor inspections.

      Gabriel’s   corporate   designee,   Robin   Virbickis,   testified   at   her

deposition that floor inspections were “part of the manager on duty’s

program as they tour the store to monitor” the store’s conditions, that

managers switched on and off in three-hour shifts, that during their shifts,

managers completed “figure eights” throughout the building, and that asset

protection employees also helped inspect the floor as part of their daily tours

through the store.   Virbickis Dep. at 67-68, 70, 72-73.       In support of her

claim that Gabriel’s inspection policies were deficient, Johnson relies on

Virbickis’ testimony that floor inspections were not scheduled, were not

documented, did not have specifically defined routes, were not required to

be performed a set amount of times during a shift, and that Virbickis could


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not say how often floors were inspected. Johnson’s Br. at 9-11. Virbickis

further testified that there was no section in the training document for

managers dealing specifically with inspection of the floor for hazards. Id. at

11.   In addition, Virbickis testified that she did not know if there was any

way to tell when the last floor inspection of the area in which Johnson fell

occurred, whether the last floor inspection would have been documented, or

who would know the answers to those questions.             See id. at 80-81.

However, Gabriel’s policy was to conduct inspections, and Johnson did not

present sufficient evidence to create a genuine issue of material fact that

those inspections did not occur or were insufficient such that Gabriel would

otherwise have had constructive notice of the hanger.

      Next, we examine whether there is a genuine issue of material fact

regarding the length of time the clothes hanger was on the floor before

Johnson’s fall. The trial court found:

            According to [Johnson], she fell after slipping on a
         “clear hanger”, which she never saw prior to her fall.
         (Deposition of Monique Johnson at pp. 34-35). [Johnson]
         was alone at the time, and has presented no witnesses or
         any other evidence that would establish how long the
         clothes hanger had been on the floor. (Id. at pp. 30-32).

Trial Ct. Op. at 3 (unpaginated).        Thus, Johnson, by her own admission,

failed to demonstrate how much time elapsed between the origin of the

hazardous condition and her fall.

      Johnson claims that Gabriel’s failure to preserve video footage of the

accident could support a future motion in limine based on spoliation.


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Presumably, Johnson believes that Gabriel’s failure to preserve video footage

could permit an adverse inference against Gabriel as to timing.       Parr v.

Ford Motor Co., 109 A.3d 682, 701 (Pa.Super. 2014) (finding that

spoliation sanctions “arise out of the common sense observation that a party

who has notice that evidence is relevant to litigation and who proceeds to

destroy evidence is more likely to have been threatened by that evidence

than is a party in the same position who does not destroy the evidence” and

that one “remedy for the loss or destruction of evidence by the party

controlling it is to allow the jury to apply its common sense and draw an

‘adverse inference’ against that party”).   Johnson’s counsel stated that he

never received copies of any surveillance footage.     Virbickis Dep. at 109.

However, a review of Virbickis’s testimony – the sole evidence to support a

spoliation claim – reveals only that she did not know whether the accident

had been recorded.    Id. at 107:3-8.    This testimony does not prove that

Gabriel destroyed or otherwise failed to preserve video footage – it proves

only that Johnson did not receive video footage.      Further, in her brief,

Johnson does not specifically allege that Gabriel failed to comply with

discovery requests for video footage, nor does the record contain a motion

to compel production of video footage.

      Finally, in support of her claim, Johnson relies on a history of prior

slip-and-falls in Gabriel’s stores. However, while Virbickis testified that she

was aware of other slip-and-falls in the five years prior to the accident, she


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did not know how many occurred nor whether any had occurred as a result

of fallen clothes hangers. See Virbickis Dep. at 88-89. Johnson presented

no other evidence of a history of slip-and-falls to support a finding of

Gabriel’s constructive notice of the hanger.

      Accordingly, we conclude that there is no genuine issue of material

fact regarding Gabriel’s constructive notice of the harmful condition.

      Therefore, because no genuine issues of material fact exist as to

Gabriel’s actual or constructive notice, and Gabriel is entitled to judgment as

a matter of law, we conclude that the trial court properly granted summary

judgment in Gabriel’s favor.

      Judgment affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




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