J-A25003-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

ALLYSON SMITH AND SCOTT SMITH,           : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellants              :
                                         :
           v.                            :
                                         :
CHELSEA POCONO FINANCE, LLC,             :
CHELSEA PROPERTY GROUP, INC.,            :
CHELSEA PROPERTY GROUP, CPG              :
PARTNERS, LP, CPG HOLDINGS, LLC,         :
SIMON   PROPERTY   GROUP,  INC.,         :
SIMON PROPERTY GROUP, LP,                :
                                         :
                 Appellees               : No. 358 EDA 2015

            Appeal from the Order entered December 29, 2014,
                 Court of Common Pleas, Monroe County,
                     Civil Division at No. 6669 CV 2008

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED SEPTEMBER 30, 2015

     Appellants, Allyson W. Smith and Scott Smith (together, “the Smiths”),

appeal from the December 29, 2014 order entered by the Monroe County

Court of Common Pleas granting the motion for summary judgment filed by

the appellees, Chelsea Pocono Finance, LLC, Chelsea Property Group, Inc.,

Chelsea Property Group, CPG Partnerships, LP, CPG Holdings, LLC, Simon

Property Group, Inc., and Simon Property Group, LP (collectively, “Property

Group”). Upon review, we affirm.

     On July 21, 2006, the Smiths and their two minor children were

shopping at The Crossings Premium Outlets (“The Crossings”), located in

Monroe County, Pennsylvania.    While descending a stairwell with her five-



*Former Justice specially assigned to the Superior Court.
J-A25003-15


year-old son, Mrs. Smith slipped and fell. She did not know what caused her

to fall, stating only that “it was like ice, and both of my feet just went right

out from under me.” Allyson Smith Deposition, 5/19/10, at 32. She did not

see any debris near, around or under her.

      Mr. Smith, who was walking ahead of Mrs. Smith, did not see her fall.

Upon returning to his wife, he observed what he believed to be a food

particle – either a french fry or a piece of a hamburger bun – that had been

stepped on. He was unsure whether his wife actually fell on this substance,

but it was his belief that this may have caused her to fall.       Scott Smith

Deposition, 5/19/10, at 13, 23.

      After the fall, Mrs. Smith experienced “extreme pain” in her arm and

hand and had Mr. Smith get their vehicle to take her to the hospital. Allyson

Smith Deposition, 5/19/10, at 36-37, 40. The Smiths informed an unnamed

employee of The Crossings that Mrs. Smith had fallen and asked for ice. The

employee asked Mrs. Smith if she wanted an ambulance, but she declined.

The employee radioed an unnamed security guard and requested ice, but

that guard and another he consulted were both unable to access the first aid

kit because they did not have keys to unlock the trailer in which it was

located.

      Mrs. Smith’s arm was broken and required casting for six weeks. She

subsequently required physical therapy for several weeks, following which




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she needed no additional treatment. At the conclusion of her treatment, her

arm and hand fully functioned without pain.

      On July 17, 2008, the Smiths instituted the underlying action by filing

a praecipe for writ of summons, naming Property Group as defendants. On

October 27, 2008, the Smiths filed a complaint sounding in negligence and

loss of consortium.       Property Group filed preliminary objections to the

complaint on November 20, 2008, and the Smiths filed an amended

complaint on December 4, 2008.

      Following the completion of depositions and discovery, Property Group

filed a motion of summary judgment on April 15, 2014. The Smiths filed a

response in opposition on May 14, 2014. On December 29, 2014, the trial

court granted Property Group’s motion.

      This timely appeal followed, wherein the Smiths raise two issues for

our review:

         1. [Is Property Group] entitled to [s]ummary
            [j]udgment when [Property Group] had constructive
            notice of the dangerous condition at issue due to its
            “squished nature”[?]

         2. [Is Property Group] entitled to [s]ummary
            [j]udgment when questions of material fact exist as
            to whether [Property Group] had a duty under
            Restatement (Second) of Torts, § 344, Comment
            (f)[,] to inspect the premises[?]

The Smiths’ Brief at 4.




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      We review a decision granting summary judgment according to the

following standard:

                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. Pa.R.C.P.
            1035.2. 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.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.

Super. 2013) (citation omitted).

      In their first issue, the Smiths contend that summary judgment was

granted in error “because the squished nature of the [f]rench fry/bun

establishes that the debris had been on the floor for a long enough time[] to

establish a genuine issue of material fact as to whether [Property Group

was] on constructive notice of its existence.” The Smiths’ Brief at 10. The

trial court disagreed, finding that the Smiths failed to present evidence as to



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the length of time the foreign substance upon which Mrs. Smith allegedly

slipped was present in the stairwell.   Trial Court Opinion, 12/29/14, at 12

(pagination added).

     Pennsylvania cases have adopted section 343 of the Restatement

(Second) of Torts, which provides:

           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 of reasonable care
               would discover the condition, and should realize
               that it involves an unreasonable risk of harm 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

               (c) fails to exercise reasonable care to protect
               them against the danger.

RESTATEMENT (SECOND)     OF   TORTS: DANGEROUS CONDITIONS KNOWN       TO   OR


DISCOVERABLE   BY   POSSESSOR § 343 (1965); see Schon v. Scranton-

Springbrook Water Serv. Co., 112 A.2d 89, 91 (Pa. 1955).

              The principle of law from which this rule of the
           Restatement was derived is that a possessor of land
           is not an insurer of the safety of those on his
           premises. As such, the 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. Therefore, in order to
           impose liability on a possessor of land, the invitee
           must present other evidence which tends to prove
           that the possessor deviated in some particular from


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              his duty of reasonable care under the existing
              circumstances. Logically, the invitees case-in-chief
              must consist of evidence which tends to prove either
              that the proprietor knew, or in the exercise of
              reasonable care ought to have known, of the
              existence of the harm-causing condition.

Moultrey v. Great A & P Tea Co., 422 A.2d 593, 595-96 (Pa. Super. 1980)

(internal citations omitted).

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

Id. at 596 (internal citations omitted). “What 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) (citation omitted).

         There are numerous Pennsylvania cases addressing slip and falls

caused by food items in places of business. The holdings of these cases are

clear:    the plaintiff has the burden of proving, by direct or circumstantial

evidence, that the food item had been present long enough for the

defendant to be charged with constructive notice.       See, e.g., Martino v.

Great Atl. & Pac. Tea Co., 213 A.2d 608, 610 (Pa. 1965) (affirming entry



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of nonsuit in favor of defendant grocery store where the plaintiff failed to

present evidence as to when the grape upon which she slipped appeared on

the floor); Myers v. Penn Traffic Co., 606 A.2d 926, 931 (Pa. Super.

1992) (en banc) (affirming grant of summary judgment in favor of

defendant market as plaintiff failed to present “evidence as to the cause of

the presence of the grape on the floor” that caused her to slip and fall);

Jones v. Sanitary Mkt. Co., 137 A.2d 859, 861 (Pa. Super. 1958) (en

banc) (affirming directed verdict for the defendant market in negligence

action for slip and fall on a piece of a banana peel because “[t]here is

nothing whatsoever in her testimony when viewed in its most favorable light

nor in the testimony of any other witness as to how long the offending

substance had been in the aisle nor where it had come from”); De Clerico

v. Gimbel Bros., 50 A.2d 716, 717 (Pa. Super. 1947) (en banc) (affirming

entry of nonsuit in favor of defendant where plaintiff stepped on a soft

substance covered by a newspaper in a dimly lit stairwell that had been

littered with torn, dirty newspaper for days, as the plaintiff failed to adduce

any evidence as to when the soft substance appeared on the stairs);

Moultrey, 422 A.2d at 535 (affirming entry of nonsuit in favor of defendant

market where plaintiff failed to present any evidence as to the length of time

the squashed cherry upon which she slipped was on the floor).

      Simply because food debris upon which a plaintiff allegedly slips is

squashed, torn or altered in some form does not necessarily give rise to a



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finding that the substance was there for any length of time.       See, e.g.,

Gorman v. Simon Brahm's Sons, 148 A. 40, 40 (Pa. 1929) (per curiam)

(crushed nature of spinach upon which plaintiff fell at the top of defendant’s

stairs did not permit a finding of constructive notice); Jones, 137 A.2d at

861; Moultrey, 422 A.2d at 535.          Rather, the plaintiff must present

sufficient evidence to establish that the food particle had been on the ground

for such a length of time that the defendant knew or should have known of

its existence.

      Our review of the record in the case at bar, viewed in the light most

favorable to the Smiths, reveals that the Smiths failed to present any

evidence, either direct or circumstantial, to suggest that the foreign

substance that allegedly caused Mrs. Smith to fall had been present on the

stairwell for any length of time prior to Mrs. Smith falling.     Mrs. Smith

herself did not see the substance upon which she allegedly slipped and Mr.

Smith never pointed out to her the substance upon which he believed she

slipped. Allyson Smith Deposition, 5/19/10, at 32-33, 38. The only debris

in the stairwell that Mrs. Smith observed was located in the corner of the

stairwell, consisted of “napkins and various wrappers [and] receipts,” and

was located on stairs below the location where she fell. Id. at 35, 66.

      Mr. Smith described the substance upon which he believed his wife

slipped as “a [f]rench fry or a piece of hamburger bun or some type of food

that was, you know, squished. You know, if you step on a [f]rench fry or



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you step on a hamburger bun, a little piece, they’re going to look very

similar.” Scott Smith Deposition, 5/19/10, at 12. He provided no additional

description of the substance (e.g., that it was dirty, appeared to have been

stepped upon multiple times, etc.).       There were no pictures taken, no

witnesses interviewed, and no other description of the substance provided.

See Scott Smith Deposition, 5/19/10, at 22; Allyson Smith Deposition,

5/19/10, at 65. Mr. Smith further testified that the stairwell was crowded at

the time his wife fell. Scott Smith Deposition, 5/19/10, at 22. Thus, without

a more detailed description of the substance, the fact that it had been

stepped on does not give rise to an inference that it had been there for an

appreciable amount of time such that Property Group knew or should have

known of its existence.

      Despite the plethora of Pennsylvania cases addressing this issue, the

Smiths rely upon two federal cases in support of their claim that summary

judgment was improper.      See The Smiths’ Brief at 10 (citing Rumsey v.

Great Atl & Pac. Tea Co., 408 F.2d 89 (3d Cir. 1969); Farina v. Miggy’s

Corp. Five & Six, 2010 WL 3024757 (M.D.Pa. July 29, 2010). Although we

may look to federal court decisions as persuasive authority, this Court is not

bound to follow them. Juszczyszyn v. Taiwo, 113 A.3d 853, 859 n.7 (Pa.

Super. 2015).     Regardless of their lack of precedential value, neither

Rumsey nor Farina, both of which involve slip and falls in a grocery store,

entitles the Smiths to relief, as there, the plaintiffs presented circumstantial



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evidence as to the length of time the substance upon which she fell had

been on the floor.   See Rumsey, 408 F.2d at 90-91 (plaintiff slipped on

lettuce located on the floor that were described as “wilted … torn up … brown

… yellow … old … [and] weren’t fresh,” which the court concluded was

sufficient circumstantial evidence that the substance had been on the floor

“for hours”); Farina, 2010 WL 3024757, at *9 (“The fact that there was no

moisture on the floor besides where the piece of fruit was, and that the floor

was described as ‘sticky’, ‘gritty’, and a ‘grime’ is enough to show that this

substance may have been on the floor for an unreasonable length of time.

There was also a skid mark on the floor from which a reasonable jury could

conclude that it may have come from someone other than Ms. Farina.”).

      The record does not support the Smiths’ claim that they presented

sufficient evidence to create a genuine issue of whether the foreign

substance upon which Mrs. Smith allegedly slipped was in the stairwell for

such a length of time to provide Property Group with constructive notice of

its presence. As such, we find no error in the trial court’s grant of summary

judgment on that basis.

      In support of their second argument on appeal, the Smith’s rely upon

section 344 of the Restatement (Second) of Torts and comment f thereto,

which state:

            A possessor of land who holds it open to the public
            for entry for his business purposes is subject to
            liability to members of the public while they are upon



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            the land for such a purpose, for physical harm
            caused by the accidental, negligent, or intentionally
            harmful acts of third persons or animals, and by the
            failure of the possessor to exercise reasonable care
            to

                (a) discover that such acts are being done or are
                likely to be done, or

                (b) give a warning adequate to enable the visitors
                to avoid the harm, or otherwise to protect them
                against it.

RESTATEMENT (SECOND)     OF   TORTS: BUSINESS PREMISES OPEN   TO   PUBLIC: ACTS   OF


THIRD PERSONS   OR   ANIMALS, § 344 (1965); see Glass v. Freeman, 240 A.2d

825, 829 (Pa. 1968).

            Duty to police premises. Since the possessor is not
            an insurer of the visitor’s safety, he is ordinarily
            under no duty to exercise any care until he knows or
            has reason to know that the acts of the third person
            are occurring, or are about to occur. He may,
            however, know or have reason to know, from past
            experience, that there is a likelihood of conduct on
            the part of third persons in general which is likely to
            endanger the safety of the visitor, even though he
            has no reason to expect it on the part of any
            particular individual. If the place or character of his
            business, or his past experience, is such that he
            should reasonably anticipate careless or criminal
            conduct on the part of third persons, either generally
            or at some particular time, he may be under a duty
            to take precautions against it, and to provide a
            reasonably sufficient number of servants to afford a
            reasonable protection.

RESTATEMENT (SECOND)    OF   TORTS § 344 cmt. f (1965). Pursuant to section 344

and comment f, “[i]t is sufficient to establish a jury question of liability if the

evidence … shows that the defendants had notice, either actual or



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constructive, of prior acts committed by third persons within their premises

which might cause injuries to patrons.” Moran v. Valley Forge Drive-In

Theater, Inc., 246 A.2d 875, 878-79 (Pa. 1968).

      The Smiths assert that summary judgment was erroneous because

there was “a genuine issue of material fact as to whether [Property Group]

had actual knowledge of an issue with patrons dropping garbage on the

steps where Mrs. Smith fell, and failed to take reasonable steps to prevent

the dangerous condition from occurring.”      The Smiths’ Brief at 17.    They

state that several of Property Group’s witnesses testified that patrons

regularly and routinely dropped food in areas near restaurants, including in

the stairwell near the restaurants. Id. at 22-23. Further, according to the

Smiths, the mere presence of a garbage can and an eatery within ten feet of

the stairwell results in a finding that Property Group “should have

anticipated that debris would collect on the subject stairwell.” Id. at 23.

      Our review of the record and the relevant law does not comport with

the Smiths’ claims.     For example, contrary to the Smiths’ contention,

Douglas Smith, general manager at The Crossings, did not testify that “he

was aware that people would leave food lying around the property, i.e.[,]

dropping it on the ground.” The Smith’s Brief at 22 (citing Douglas Smith

Deposition, 5/19/10, at 21-24).       Nor did Travis Schuster, one of the

maintenance supervisors of The Crossings in 2006, testify that food products

accumulated in the stairwells or that he had seen food debris there in the



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past.   Id. at 22-23.   Rather, the record reflects the following exchange

between the Smiths’ counsel and Mr. Schuster:

            Q. In your experience, did you typically see around
            the   American    Eatery    spills  and     garbage
            accumulating?

                                 *     *      *

            A.   … To the best I remember, generally, the
            garbage would have been inside, as far as the food
            garbage goes, that would more or less inside [the
            restaurant’s] space.

                                 *     *      *

            Q.     What I’m asking is the area around the
            restaurant – if we want to draw a circle in this area
            coming in and out of the stores, stairwells, that
            whole area, did you find in your experience that you
            would have to focus on areas like that when it comes
            to cleaning?

                                 *     *      *

            A. Again, most of their general garbage was more or
            less inside their space as far as that particular area
            goes.

            Q. Okay. In your experience, in this stairwell right
            here did you, on any occasion, find spills, garbage,
            debris in that area?

            A. Other than napkins I think, no.

Travis Schuster Deposition, 11/14/12, at 33-35.         Similarly, the other

maintenance supervisor at The Crossings, William Barney, testified that he

did not see food debris on the ground in the common areas at The

Crossings. William Barney Deposition, 11/14/12, at 24-25.



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      Furthermore, we have found no case law, and the Smith’s cite to none,

indicating that a repeated dangerous condition is presumed on a business

premises near eateries and/or garbage cans. Case law addressing slip and

falls involving food debris in grocery stores, even where food on the floor

was known to be a recurring problem, suggests otherwise.           See, e.g.,

Martino, 213 A.2d at 610; Myers, 606 A.2d at 931.

      In short, there was no evidence presented to suggest that the

presence of food debris on the ground at The Crossing was a recurring

problem that posed a hazard to its patrons, rendering comment f to section

344 of the Restatement (Second) of Torts inapplicable. We recognize, as we

have before, that establishing negligence “is often a heavy burden on a

plaintiff even in a meritorious case, and under some circumstances the

difficulties of proof of negligence may be insurmountable. … Nonetheless, …

it is still incumbent upon the plaintiff to allege sufficient facts and present

sufficient evidence to sustain a cause of action against the [defendants].”

Myers, 606 A.2d at 932 (quoting (De Clerico, 50 A.2d at 717). “A plaintiff

cannot survive summary judgment when mere speculation would be

required for the jury to find in plaintiff’s favor.” Krauss v. Trane U.S. Inc.,

104 A.3d 556, 568 (Pa. Super. 2014).

      As the Smiths failed to present sufficient evidence on issues essential

to their case on which they bore the burden of proof, Property Group was

entitled to summary judgment as a matter of law. See JP Morgan Chase



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Bank, N.A., 63 A.3d at 1261-62.   We therefore affirm the trial court’s

decision.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/2015




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