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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

    GIANT FOOD STORES, LLC, AND GIANT
    FOOD STORE #6043

                             Appellees                No. 458 EDA 2017


                 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.*

CONCURRING AND DISSENTING MEMORANDUM BY LAZARUS, J.:

        I respectfully concur in part and dissent in part.   I concur with the

learned Majority’s conclusions that the Schneiders have waived their spoliation

claim and their “Naty-Glo rule” claim is meritless. However, I dissent from

the Majority’s affirmance of the trial court’s summary judgment order. The

majority predicates its legal conclusion upon factual determinations that I

believe should have been within the province of the trier of fact. Therefore, I

would reverse the order of the trial court granting summary judgment in favor

of Giant.

        The Majority concludes that the Schneiders did not produce evidence

demonstrating a genuine issue of material fact that would preclude entry of

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*   Retired Senior Judge assigned to the Superior Court.
J-A22026-17



summary judgment. Contrarily, I believe the Schneiders presented direct and

circumstantial evidence that Giant had constructive notice of the spill and

failed to warn or correct the spill, from which evidence the trial court

inappropriately drew speculative conclusions to the contrary.

      First, I believe a genuine issue of material fact exists with regard to

whether Giant had constructive notice of the spill. Mrs. Schneider alleges she

slipped and fell on a clear liquid and that her pant leg was wet following her

slip and fall. Surveillance video produced by Giant shows Regalis cleaning up

the self-checkout station floor moments before and after Schneider’s fall,

corroborating   Schneider’s   testimony    that   the   liquid   hazard   existed.

Furthermore, Mrs. Schneider avers that because Regalis was at a podium near

the spill and overlooking the entire self-checkout area, a jury could reasonably

conclude that Giant had constructive notice of the hazard prior to Schneider’s

fall. See Zito, 647 A.2d at 575 (to recover damages in slip and fall, invitee

must present evidence which proves proprietor had constructive notice of

hazardous condition).

      The trial court disagreed, stating that “the [surveillance] video, which

showed [Regalis] routinely monitored the area, coupled with testimony that

[Regalis] does not recall seeing a puddle prior to [Schneider] falling, tends to

suggest that the hazard did not exist for such a duration that [Giant] would

have had constructive notice of the purported hazard.” Trial Court Opinion,

6/19/17, at 10. I believe the trial court speculates as to how to interpret,

collectively, Regalis’ poor recollection, approximately 26 minutes of video

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footage, and Mrs. Schneider’s own testimony.     In doing so, the trial court

usurped the role of the factfinder and improperly concluded that Giant did not

have actual or constructive notice of the liquid. Cf. Rabutino v. Freedom

State Realty Co., Inc., 809 A.2d 933, 939-41 (Pa. Super. 2002) (reversing

trial court’s order granting summary judgment in favor of plaintiff when

plaintiff presented evidence that would enable reasonable jury to find

defendant had actual knowledge of foreseeable risk of harm that went

effectively unchecked).

      Regarding the constructive notice element critical to the Schneider’s

claim, the Majority finds Sellers and Scott instructive. In Scott, the U.S.

Supreme Court held, and the Pennsylvania Supreme Court agreed, “when

opposing parties tell two different stories, one of which is blatantly

contradicted by the record . . . a court shall not adopt that version of the

facts for purposes of ruling on a motion for summary judgment.” Sellers,

550 U.S. at 380 (emphasis added).

      The Majority concedes that the video, which is choppy and does not

include audio, does not blatantly contradict Mrs. Schneider’s testimony.

However, the Majority suggests footage of Regalis glancing at the spill,

prompted by Mrs. Schneider’s pointed finger moments after her fall, patently

undermines an inference of prior knowledge or notice of the spill.        The

Majority, citing this moment, suggests the glance was revelatory, and thus,

Regalis was likely unaware of a hazard. This too is speculative. Furthermore,

the trial court neither cited Sellers or Harris in its opinion nor discussed

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Regalis’ glance in concluding Giant did not have constructive notice of the spill;

its wholly speculative conclusions were premised on less developed facts and

case law.

        Second, I believe Schneider raises a genuine issue of material fact

regarding Giant’s failure to warn or correct the hazard. The trial court, having

identified that Giant owed Schneider a duty of care, concluded that Giant took

reasonable action to correct the hazard that caused Schneider’s injury,

stating: “Regalis’ periodic monitoring and cleaning of the area is indicative []

that [Giant], through its employee, was exercising reasonable care.”           Trial

Court Opinion, 6/9/17, at 9.         Again, the trial court’s speculation as to the

interpretation of Regalis’ monitoring/cleaning activity, as it relates to

mitigating the alleged hazard that caused Schneider’s injury, subverts the

jury’s fact-finding role. Moreover, the record includes contradictory evidence

that an employee removed a soda case (a feasible source of the liquid) from

the area after Schneider fell, Schneider’s testimony and video showing that

cones did not mark the wet spot,1 and that cleaning/monitoring the self-

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1   Restatement of Torts § 344 provides, in relevant part, as follows:

        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 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




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checkout area is not a responsibility of Giant’s clean sweep employees.

Additionally, Schneider proffered that a fact-finder could reasonably infer that

Regalis’ approaching shift change2 dissuaded her from rectifying an apparent

spill or leak of which the next employee would be imminently responsible.

Even so, the trial court determined Giant took reasonable care to prevent slip

and fall incidents. In making this determination, the trial court again usurped

the function of the jury. This was a clear abuse of discretion.

       In light of the foregoing, I disagree with the learned Majority’s decision

affirming the trial court’s order granting summary judgment in favor of Giant.

       Accordingly, I respectfully concur in part and dissent in part.




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

Restatement of Torts § 344 (emphasis added).

2 Regalis’ supervisor indicated that she likely left the scene of the slip-and-fall
only minutes after it occurred due to a scheduled shift change. Deposition of
James R. Sentiwany, Jr., 10/20/15, at 23-24.

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