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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    FATIMA BOUKASSI                               IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      Appellant


                 v.


    WAL-MART STORES, INC. AND WAL-                No. 3449 EDA 2018
    MART STORE #2141

               Appeal from the Order Entered November 8, 2018
      In the Court of Common Pleas of Philadelphia County Civil Division at
                              No(s): 170301407


BEFORE:      SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 01, 2019

        Appellant Fatima Boukassi appeals from the order granting the motion

for summary judgment filed by Appellees Wal-Mart Stores, Inc. and Wal-Mart

Store #2141 and dismissing her premises liability action against Appellees.

Appellant argues that the trial court erred in granting summary judgment in

favor of Appellees because the determination of constructive notice was         a

question for the jury. We affirm.

        We summarize the relevant background and procedural history as

follows. On May 2, 2016, Appellant slipped and fell at Wal-Mart Store #2141.

Appellees' Mot. Summ. J., 8/30/18,    '11   2; Boukassi Dep., 9/14/17, at 10, 16-

17.    Appellant testified that the store was busy when she arrived.    Boukassi



*   Retired Senior Judge assigned to the Superior Court.
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Dep. at 14. Appellant entered through the main entrance, walked straight to

the dairy section, picked up some lemonade, and turned around to exit.                                Id.
at 15. Walking back down the same aisle she had just come from, Appellant

slipped and fell on                 a   spilled substance in the middle of the aisle.     Id. at      15-

17. According to Appellant, the spill was about three inches in diameter, was

"liquid, yellowish, like oil maybe[,]" and had no dirt or streak marks in or

around it.            Id. at 17-18.
        Appellant was in the store for approximately two minutes before she

fell.   Id. at 16-17.                   During that time, Appellant did not hear anyone say

anything about                a    spill on the floor.   Id. at   16. Appellant did not look at the

floor or see anything on the floor before she fell. Id. at 17. Appellant testified

that she did not know where the spill came from. Id. at 18. After Appellant
fell, two nearby customers went and alerted two Wal-Mart associates, who

came to help Appellant.                    Id. at 23-24.
        Appellant commenced this civil action by filing                   a   complaint on March 15,

2017. On May 14, 2018,                       a   panel of arbitrators found in favor of Appellees.

Appellant timely appealed the arbitrators' findings on May 24, 2018.

        On August 30, 2018, Appellees filed a motion                          for summary judgment,

asserting that "[s]ince [Appellant] is unable to establish actual or constructive

notice and that [Appellees'] actions fell below the standard of reasonable case,

there   is no         genuine issue of material fact." Appellees' Mot. Summ.              J.   at   ¶ 32.

Appellant filed           a       response alleging, in relevant part, that she was "a business

invitee   .   .   .   to be afforded the highest level of care," and "there are clear issues

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of fact which are only ripe for the finder of fact to determine                 .   .   .   as to how

this accident occurred."      Appellant's Resp. to Appellees' Mot. Summ. J.,

9/26/18, at 23, 22. The trial court granted Appellees' motion for summary
judgment on November 8, 2018.
        On November 13, 2018, Appellant filed a motion                for reconsideration

referencing, in part, Appellees' "Slip, Trip and Fall Guidelines." See Appellant

Mot. Reconsider., 11/13/18, at 1114. Appellant attached to her motion                                   a   copy

of the Guidelines, which stated that Wal-Mart employees were expected to

"[c]lean up spills, debris and slip and trip hazards immediately" and
"[c]omplete safety sweeps on      a   regular basis to help keep the salesfloor free

of slip and trip hazards and falling merchandise."       Id. at       Ex. C.            The "Safety

Sweeps" section of the policy stated that employees should "[p]erform                               a   visual

sweep of the area looking for potential hazards such as           .   .   .    spills       .   .   .       " and

"dust mop or broom sweep high traffic areas." Id. at Ex.                  C.    The trial court

denied Appellant's motion for reconsideration on November 14, 2018.

        On November 15, 2018, Appellant        timely filed   a   notice of appeal and

independently submitted      a   Pa.R.A.P. 1925(b) statement.                  The trial court

subsequently filed    a   responsive Rule 1925(a) opinion and concluded that

Appellant was not entitled to relief.

        Appellant raises two questions for our review:

        [1]. Did the trial court err as a matter of law in granting the
        [Appellees]' motion for summary judgment where genuine issues
        of material fact [exist]?



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        [2]. Did the trial court err as a matter of law in determining the
        [Appellees] were entitled to summary judgment as a matter of
        law, by finding the [Appellees] did not receive proper notice of the
        defect on their premises?

Appellant's Brief at 4.

        We summarize Appellant's claims together as they are interrelated.

Appellant argues that         in a slip and   fall case, the plaintiff is not required to

prove the "precise manner in which the tortious condition developed."                  Id. at
14 (citing   Finney v.       G.C.    Murphy Co., 178 A.2d 719,             721 (Pa. 1962)).

Appellant notes that circumstantial evidence may support                       a   finding of

constructive notice.         Id.     Appellant indicates that factors for assessing

constructive notice may include "the number of persons using the premises;

the frequency of such use; the nature of the defect; its location on the

premises; its probable cause and the opportunity which the defendant had to

remedy the defect." Id. (citing Bremer v. W.W. Smith, Inc., 191 A. 395

(Pa. Super. 1937)). Appellant contends a question of fact existed based on

her evidence showing that the spill originated at Appellees' store, occurred in

a   busy section of the store, and caused Appellant to fall.       Id. at     17. Appellant

asserts that "it   is a   question of fact for the jury to decide if   a   landowner knew,

or should have discovered the defect upon reasonable inspection."                  Id. at   13.

        Appellant further argues that Appellees failed to exercise reasonable

care by deviating from their "Slip, Trip and Fall Guidelines."             Id. at 15-16. In
support, Appellant analogizes the case at hand to Thakrar v. Wegman's

Food Mkt., 75        Pa. D&C        4th 437 (C.C.P. Northampton 2004).             Appellant


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contends that Appellees clearly had           a   policy in place to perform regular sweeps

and inspections of the aisle where Appellant fell, but failed to do so, which

permitted the oil -like substance to remain on the floor. Id. at 16.

        Lastly, Appellant contends that "equitable considerations should allow

plaintiff to recover       in   factual situations     .   .   .   [w]here   a   customer has sustained

injuries although neither the customer nor the store has [potentially] behaved

negligently." Id. at 15 (quoting Landis v. Giant Eagle, Inc., GD91-7779,

142    PLJ       263 (C.C.P. Allegheny 1994) (Strassburger, J.), aff'd, 655 A.2d 1052

(Pa. Super. 1994) (unpublished             mem.)).

        The standards governing our review of                       a   trial court's grant of summary

judgment are well settled.

        Our standard of review of an order granting summary judgment
        requires us to determine whether the trial court abused its
        discretion or committed an error of law[,] and our scope of review
        is plenary. We view the record in the light most favorable to the
        nonmoving party, and all doubts as to the existence of a genuine
        issue of material fact must be resolved against the moving party.
        Only where there is no genuine issue as to any material fact and
        it is clear that the moving party is entitled to a judgment as a
        matter of law will summary judgment 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. Further, failure of a nonmoving
        party to adduce sufficient evidence on an issue essential to his
        case and on which he bears the burden of proof establishes the
        entitlement of the moving party to judgment as a matter of law.
Rodriguez v. Kravco Simon Co.,                    111 A.3d 1191, 1193 (Pa. Super. 2015)

(citation omitted); see also Pa.R.C.P. 1035.2.                            "A plaintiff cannot survive


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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) (citation omitted).

        In    a   premises liability action alleging negligence,            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.                                Toro v.
Fitness International LLC., 150 A.3d 968, 976-977                               (Pa. Super. 2016)

(citation omitted).

        Both       parties agree that Appellant was                   a   business invitee.       The

Restatement (Second) of Torts           §    343 defines the duties owed to an invitee as

follows:

        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            §   343 (Am. Law Inst. 1965); see also Porro

v.   Century       III Assocs., 846 A.2d 1282, 1285 (Pa. Super. 2004).
        This Court has explained that

        the mere existence of a harmful condition in a public place of
        business, or the mere happening of an accident due to such a

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        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.

Rodriguez, 111 A.3d at 1193 (citation omitted).
        The parties also agree that there was no evidence that Appellees helped

create or had actual notice of the harmful condition. See Appellant's Brief at

13; Appellees' Brief at 10. Therefore, the only issue is whether       a   genuine

issue of material fact exists as to whether or not Appellees had constructive

notice of the spill on their premises.

        This Court has stated:

        What will amount to constructive notice of a defective or
        dangerous condition existing upon a defendant's premises,
        necessarily varies under the circumstances of each case. Some of
        the factors affecting the question, in addition to the time elapsing
        between the origin of the defect and the accident, are the size and
        physical condition of the premises, the nature of the business
        conducted thereon, the number of persons using the premises and
        the frequency of such use, the nature of the defect and its location
        on the premises, its probable cause and the opportunity which
        defendant, as a reasonably prudent person, had to remedy it.

Bremer     191 A. at 397 (citation omitted).

        In Porro, this Court held that summary judgment was properly granted

when the plaintiff who slipped and fell on the defendant's premises failed to



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establish the duration of the spill's existence. Porro, 846 A.2d at 1286. This

Court explained that when

        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 condition existed for such a length of
                                   .   .


        time that in the exercise of reasonable care the owner should have
        known of it.

Id. (citation omitted).
        In Toro, the plaintiff claimed that he slipped and fell on an unusual

buildup of soapy, cloudy water in the locker room of the defendant's fitness

center. Toro, 150 A.3d at 971. The defendant responded that the janitorial

staff regularly inspected and maintained the locker room and that there were

no reports      that the floor of the locker room was wet before the accident. Id.
The defendant moved for summary judgment, which the trial court granted.

        On appeal, the     plaintiff argued that the defendant had constructive

notice of   a   buildup of water in the locker room.            Id. at 977. However,   since

the plaintiff could not establish how long the floor was wet prior to plaintiff's

fall, this Court found that the "[p]laintiff      .   .   .   failed to satisfy his burden of

proof as to his claims of negligence."           Id. (citation omitted).         This Court

explained that "there [was] no evidence that the floor was wet for such                    a

length of time that [d]efendant should have been aware of it, and could be

charged with constructive notice."         Id. (citation omitted).



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        The Toro Court also addressed the plaintiff's argument that                     'the
condition could have existed for      a   long period of   time'   because the defendant

did not maintain accurate inspection of maintenance logs.                   Id.   The Court

found that argument unconvincing as it was "based on mere speculation."                   Id.
(citing Krauss, 104 A.2d at 568). But see Rodriguez, 111 A.3d at 1196-97

(holding that an open issue of spoliation based on the absence of                            a

maintenance log for the date of the accident precluded entry of summary

judgment    in   favor of the defendant, where the plaintiff presented evidence

that maintenance contractors were responsible for sweeping and spot
mopping the floors on an hourly basis).

        Here, as in Toro, the record in this case contained no evidence to

indicate the period of time that the spill existed.                Appellant's deposition

testimony offered no indication of when the spill occurred. Appellant did not

hear anyone, including Appellees' employees, say anything about                   a   spill on

the floor. Boukassi Dep. at 16. Appellant did not notice the spill herself when

she safely walked down the aisle the first time.             Id. at   15.    Appellant also

testified that when returning down the same aisle, the spill had no dirt or

streak marks in or around it. Id. at 18.

        Therefore, we agree with the trial court that Appellant's evidence did

not raise   a   genuine issue of material fact. See Toro, 150 A.3d at 977. As

the trial court observed, Appellant could not rely on mere speculation that the

spill existed for   a   sufficient period to establish constructive notice. Trial Ct.

Op., 12/12/18, at 4.

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        To the extent Appellant refers to Appellees' policy for cleaning up spills,

we initially note that Appellant's response to Appellees' motion for summary

judgment made       no reference to the "Slip, Trip and Fall Guidelines."            See

Appellant's Resp. to Appellees' Mot. Summ.          J.   Rather, Appellant first cited the

policy in its motion for reconsideration. See Appellant's Mot. Reconsider at

14. Appellant's failure to raise this evidence in its response may be construed

as waiver of her argument based on the policy. See             Rabatin v. Allied Glove
Corp., 24 A.3d 388, 391 (Pa. Super. 2011) (noting that an issue that was
raised for the first time in   a   motion for reconsideration could not be considered

by this Court on appeal).

        In any event, Appellant's reference to the existence of the "Slip, Trip

and Fall Guidelines" does not raise an issue of fact that precluded the entry of

summary judgment in favor of Appellees. As stated above, the record lacked

any evidence to show how long the spill was in existence.                Without further

circumstantial evidence to infer that Appellees' employees deviated from the

Guidelines, the mere existence of the spill did not establish               a   breach of

Appellees' standard of care. See Toro, 150 A.3d at 977-978; cf. Rodriguez,

111 A.3d at 1193;    Thakrar, 75        Pa. D&C   4th at 442-43.

        Lastly, we acknowledge Appellant's reference to the equitable and policy

considerations as stated by Judge Strassburger. See Appellant's Brief at 15

(quoting Landis); see also Rodriguez 111 A.3d at 1193 n.1 (indicating, in

a    special   concurrence,        the author's decades -long "disagreement with

Pennsylvania law in this area").          We further acknowledge that reasonable

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minds may disagree as to the equity and policy implications of the theory that

as   "[b]etween these two [potentially] innocent parties, fairness should require
the store to pay as       a   cost of operating its business."   See Goodman v.

Chester Downs and Marina, LLC, 39 A.3d 371, 372             (Pa. Super. 2012) (per

curiam) (Strassburger, J. concurring). However, as we find no legal or factual

distinction between this case and Toro, we are constrained to conclude that

Appellant's equitable argument merits no relief consistent with the established

case law as applied to the circumstances of this case.

        Order affirmed.

Judgment Entered.




Jseph     Seletyn,
          D.
Prothonotary



Date: 8/1/19
