J-S65031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JEANNETTE GUMBY                            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    KARNS PRIME AND FANCY FOOD,                :   No. 1030 MDA 2019
    LTD.                                       :

                  Appeal from the Order Entered June 4, 2019
    In the Court of Common Pleas of Dauphin County Civil Division at No(s):
                              2017-CV-7013-CV


BEFORE:       PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                            FILED DECEMBER 30, 2019

        Appellant, Jeannette Gumby, challenges the order granting summary

judgment in favor of Appellee Karns Prime and Fancy Food, Ltd.                  After

careful review, we reverse.

        In its opinion, the trial court set forth the facts of this case as follows:

        The within negligence action arises out of a slip-and-fall which
        occurred on October 11, 2015 at [Appellee]’s supermarket.
        [Appellant] alleges that she “slipped on a liquid that had leaked
        or spilled onto the floor” causing injury to her right shoulder,
        neck, and back.[1] Complaint, [2/23/2018, at 2, 4-5 ¶¶] 5, 14.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   In her complaint, Appellant alleged, inter alia, that she --

        [s]ustained bodily injuries, both new and/or aggravation of
        existing conditions, including but not limited to injuries to her
        right shoulder, including but not limited to focal partial -
(Footnote Continued Next Page)
J-S65031-19


     In her deposition, [Appellant] testified that she was walking at a
     normal pace, looking straight ahead, when she suddenly fell to
     the floor. [Appellee]’s Motion for Summary Judgment, Exhibit A,
     at 22-23. [Appellee] did not see anything on the floor prior to
     her fall. Id. at 23. She did not know, when she landed on the
     floor, what, if anything, caused her to fall. Id. [Appellant]
     believes that she slipped on liquid from smashed grapes based
     upon the statement of [Appellee]’s Assistant Manager,
     Noah Match, who assisted [Appellant] shortly after her fall, that
     he observed liquid in the area. Id. at 29-30.

Trial Court Opinion, filed June 4, 2019, at 1 (some formatting). Appellant

“concedes that she does not know how the grape or grape liquid got to the

floor” nor precisely “how long it was there[. Appellee]’s Motion for Summary

Judgment, Exhibit A, at 35.” Id. at 3, 5 (some formatting).

     On February 23, 2018, Appellant commenced this action by complaint.

On November 8, 2018, Appellee moved for summary judgment solely on the

basis that Appellant “cannot sustain her burden of proving that [Appellee]

either had a hand in the creation of the alleged dangerous condition or that



     thickness tear of the supraspinatus tendon at its intersection
     onto the humerous, supraspinatus tendinosis with interstitial
     tear; synovitis and advanced cartilage injury of the
     patellofemoral joint; disc protrusion at L5-S1 in close contact
     with the traversing left S1 nerve root; disc protrusion at L2-L3
     resulting in right neuroforaminal narrowing and bulging of the
     disc at the left neuroforamen at L3-L4 resulting in left
     neuroforaminal narrowing; as well as other injuries to her person
     for which Plaintiff has sought treatment or which have not yet
     been discovered[.]

Complaint, 2/23/2018, at 4 ¶ 14.a. In its motion for summary judgment,
Appellee does not challenge the element of negligence that Appellant
incurred actual damage.      See Kovacevich v. Regional Produce
Cooperative Corp., 172 A.3d 80, 85 (Pa. Super. 2017).



                                   -2-
J-S65031-19


[Appellee] had actual or constructive notice of the alleged dangerous

condition.”    Appellant’s Motion for Summary Judgment, 11/8/2018, at 2

(unnecessary capitalization omitted).

        On December 10, 2018, Appellant filed an answer thereto, in which

she presented the following facts in support of her argument that Appellee

had notice of the hazardous condition that caused her slip and fall:

        30. . . . The area of moisture and grape remnants was spread
        across at least four tiles.             Deposition Transcript of
        Anna Collins,[ ] Exhibit “B,” [at] 15 . . .
                      2


        31. . . . [Appellee] was aware that grapes, which caused
        [Appellant]’s fall, are packaged in bags that are susceptible to
        opening and having their contents fall to the floor; that grapes
        did fall upon the floors as a result; and that this present[ed a]
        falling hazard for customers. Deposition Transcript of [General
        Manager] Greg Martin, Exhibit “C,” [at] 23[-]25[3] . . .
        Deposition Transcript of Anna Collins, Exhibit “B,” [at] 11[4] . . .
____________________________________________


2 Collins was an employee of Appellee, who cleaned up the spill immediately
after Appellant’s fall. The notes of testimony from her deposition were
attached to Appellant’s Answer to Appellee’s Motion for Summary Judgment
as Exhibit B. All exhibits referenced hereinafter are cited according to the
label used when they were attached to Appellant’s Answer to Appellee’s
Motion for Summary Judgment.
3   Martin’s deposition included the following exchange:

        [Q. H]ow are the green grapes packaged, to your knowledge,
        at that time?

        A.    They’re usually packed, okay, in like a cellophane – like
        cellophane plastic bag that had like little holes, okay, through
        them.

        Q.   And it was routinely that those bags are open; or they
        come open easily, correct?
(Footnote Continued Next Page)


                                           -3-
J-S65031-19


        33. . . . [Appellant] was not using a cart in the store. Deposition
        Transcript of [Appellant], Exhibit “A,” [at] 50 . . . The grapes
        were smashed and separate, “kind of splattered everywhere,”
        and there were cart tracks evident in the grape liquid on the
        tiles. Deposition Transcript of Anna Collins, Exhibit “B,” [at]
        13[]-14 . . . Anna Collins went to go clean up the spill
        immediately after [Appellant]’s fall and no other customers were
        present in the aisle. Id. [at 12, 20. Appellee] had in place no
        written policies or procedures for checking the produce section,
        or any section for debris or hazards. Deposition Transcript of
        Greg Martin, Exhibit “C,” [at] 18 . . . ; Deposition Transcript of
        Noah Match, Exhibit “D,” [at] 16 . . . [Appellee] maintained
        absolutely no written or other record of any floor maintenance at
        the store. Deposition Transcript of Noah Match, Exhibit “D,” [at]
        17[-]18 . . . [Appellee]’s sole procedure for addressing floor
        spills and hazards was simply for employees to clean up if they
        saw anything. [Deposition Transcript of Noah Match, Exhibit
        “D,” at 19-20 (there was “[n]ot a specific person” “charged on
        that day with going around and checking the floors for debris”).]
        ...

        36. . . . Collins also testified that . . . she never received any
        floor maintenance or safety training by [Appellee] of any kind.
        Deposition Transcript of Anna Collins, Exhibit “B,” [at] 17 . . .

        41. . . . Match and his supervisor, General Manager Greg Martin,
        testified that [Appellee] conducted no floor maintenance or
        safety training for employees.         Deposition Transcript of
        Noah March, Exhibit “D,” [at] 22[;] Deposition Transcript of
        Greg Martin, Exhibit “C,” [at] 23[.]


        A.    Yep, yeah. . . .

        Q.   And is it fair to say that those things [in the produce aisle]
        are more apt to separate from their display area or their
        packaging than say other parts of the store?

        A.    Yes.

Deposition Transcript of Greg Martin, Exhibit “C,” at 24.

4   Collins’s deposition included the following exchange:

(Footnote Continued Next Page)



                                       -4-
J-S65031-19


Appellant’s    Answer      to   Appellee’s     Motion   for     Summary      Judgment,

12/10/2018, at 2-4 ¶¶ 30-31, 33, 36, 41.              Appellant maintained that her

cause of action for negligence was viable pursuant to Sections 343 and 344

of the Restatement (Second) of Torts.5           Appellant’s Brief in Opposition to

Appellees’ Motion for Summary Judgment, 1/17/2019, at 9, 13.

       On June 4, 2019, the trial court entered an order granting the motion

for summary judgment on the basis that Appellant “did not know how the

grape or grape liquid got to the floor” and failed to establish that Appellee

had actual or constructive notice of the condition. Trial Court Opinion, filed



____________________________________________


       Q.    Did you ever notice that produce would fall on the floor in
       the produce section?

       A.     Yes. . . .

       [Q.] And were         you    familiar   with   how     the   grapes   were
       packaged?

       A.    Yes. They were put in bags, and the bags were placed on
       the shelves.

       Q.     Okay. And sometimes those bags would pop open, right?

       A.     Yes.

       Q.     And grapes would fall down?

       A.     Yes.

Deposition Transcript of Anna Collins, Exhibit “B,” at 11.

5 Sections 343 and 344 of the Restatement (Second) of Torts are quoted in
their entirety below.




                                           -5-
J-S65031-19


June 4, 2019, at 2-3. On June 26, 2019, Appellant filed this timely direct

appeal.6

       Appellant presents the following issue for our review:

       Whether the trial court erred in finding that Appellee is entitled
       to summary judgment where the record, when viewed most
       favorably to Appellant, supports a finding that Appellee had
       notice of the condition that caused Appellant’s fall and where the
       trial court erred in failing to consider and properly apply material
       facts of record, including the testimony of Appellant’s employees
       concerning the nature of the spill, lack of floor maintenance
       policy and inordinate occurrence of spills in the area of
       Appellant’s fall?

Appellant’s Brief at 5.

       Entry of summary judgment is governed by Rule 1035.2 of the Rules

of Civil Procedure:

       After the relevant pleadings are closed, but within such time as
       not to unreasonably delay trial, any party may move for
       summary judgment in whole or in part as a matter of law

           (1) whenever there is no genuine issue of any material fact
           as to a necessary element of the cause of action or
           defense which could be established by additional discovery
           or expert report, or

           (2) if, after the completion of discovery relevant to the
           motion, including the production of expert reports, an
           adverse party who will bear the burden of proof at trial has
           failed to produce evidence of facts essential to the cause of
           action or defense which in a jury trial would require the
           issues to be submitted to a jury.

____________________________________________


6On July 22, 2019, Appellant filed her statement of errors complained of on
appeal. Two days later, the trial court entered an order stating that the
opinion accompanying its order of June 4, 2019, would serve as its opinion
pursuant to Pa.R.A.P. 1925(a).



                                           -6-
J-S65031-19



Pa.R.C.P. 1035.2.

         Our standard of review of an appeal from an order
         granting summary judgment is well settled: Summary
         judgment may be granted only in the clearest of cases
         where the record shows that there are no genuine issues
         of material fact and also demonstrates that the moving
         party is entitled to judgment as a matter of law. Whether
         there is a genuine issue of material fact is a question of
         law, and therefore our standard of review is de novo and
         our scope of review is plenary. When reviewing a grant of
         summary judgment, we must examine the record in a light
         most favorable to the non-moving party.

     Newell v. Montana West, Inc., 154 A.3d 819, 821–22 (Pa.
     Super. 2017) (citations and internal quotation marks omitted).

Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96, 100 (Pa. Super.

2017).

     To hold a defendant liable for negligence, the plaintiff must
     prove that: (1) the defendant had a legally recognized duty to
     conform to a standard of care; (2) the defendant breached that
     duty; (3) the defendant’s conduct caused the resulting injury;
     and (4) the plaintiff incurred actual damage.       Newell v.
     Montana West, Inc., 154 A.3d 819, 822 (Pa. Super. 2017).
     ...

     Section 343 [of the Restatement (Second) of Torts] 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




                                     -7-
J-S65031-19


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

     Comment a to Section 343 states that it “should be read
     together with” Section 343A, which provides:

        (1) A possessor of land is not liable to his invitees for
        physical harm caused to them by any activity or condition
        on the land whose danger is known or obvious to them,
        unless the possessor should anticipate the harm despite
        such knowledge or obviousness.

        (2) In determining whether the possessor should anticipate
        harm from a known or obvious danger, the fact that the
        invitee is entitled to make use of public land, or of the
        facilities of a public utility, is a factor of importance
        indicating that the harm should be anticipated.

     Section 344 provides:

        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

           (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.

Kovacevich v. Regional Produce Cooperative Corp., 172 A.3d 80, 85,

90-91 (Pa. Super. 2017).

     In the current action, as Appellant was invited to enter and to remain

at Appellee’s premises for the purpose of doing business with the market,

she was a business invitee and thus had a special relationship with Appellee.

See Reason, 169 A.3d at 102 (“As Reason was invited to enter and to


                                    -8-
J-S65031-19



remain at Kathryn's Korner for the purpose of doing business with the thrift

shop, she was a business invitee and thus had a special relationship with

Kathryn’s Korner.”).

       Our next question therefore is whether Appellee breached its duty to

conform to a standard of care. Kovacevich, 172 A.3d at 85.7

       “The mere happening of an accident does not charge a defendant with

liability; res ipsa loquitur has no application.   It was for plaintiff to prove

some specific default or, at least, existing conditions which raised an

inference of negligence as an indispensable basis of recovery.”        Reay v.

Montgomery Ward & Co., 35 A.2d 558, 558 (Pa. Super. 1944). In order

to demonstrate that a defendant breached its duty to conform to a standard

of care --

       a store must have notice of the harmful condition. In
       determining whether this element is met, the following principles
       apply:

       [I]f the harmful transitory condition is traceable to the possessor
       or his agent’s acts, (that is, a condition created by the possessor
       or those under his authority), then the plaintiff need not prove
       any notice in order to hold the possessor accountable for the
       resulting harm. In a related context, where the condition is one
       which the owner knows has frequently recurred, the jury may
       properly find that the owner had actual notice of the condition,
       thereby obviating additional proof by the invitee that the owner
____________________________________________


7Appellee motioned for summary judgment and the         trial court granted said
motion exclusively on this element of negligence.        Appellant’s Motion for
Summary Judgment, 11/8/2018, at 2; Trial Court           Opinion, filed June 4,
2019, at 2-3. Hence, we need not address the            remaining elements of
negligence. See Kovacevich, 172 A.3d at 85.



                                           -9-
J-S65031-19


      had constructive notice of it. Where, however, 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.

Myers v. Penn Traffic Co., 606 A.2d 926, 929 (Pa. Super. 1992) (en banc)

(citation omitted) (some formatting).

      Preliminarily, we note that, in the current action, there is no evidence

that Appellee’s employees or anybody associated with Appellee dropped the

grapes or liquid or were otherwise responsible for the presence of the

transitory dangerous condition. See id. There is also no evidence that they

had been told about the particular fallen grape(s) or liquid at issue prior to

Appellant’s slip and fall. See id.

      Accordingly, we must determine whether there was any evidence to

create a genuine issue of material fact as to whether: the condition was one

which Appellee knew had frequently recurred and Appellee failed to exercise

reasonable care; or the condition existed for any period of time prior to

Appellant’s fall so as to impute that Appellee had constructive notice of its

existence. See Pa.R.C.P. 1035.2; Myers, 606 A.2d at 929.

      We first consider whether there is a genuine issue of material fact as

to whether Appellant can establish that such spills were a recurring

occurrence; if so, Appellant must also present evidence that Appellee had




                                     - 10 -
J-S65031-19



not exercised due care to keep the aisle clean. In Markman v. Fred P. Bell

Stores Co., 132 A. 178, 180 (Pa. 1926), our Supreme Court stated:

      The mere presence of such [vegetable] refuse . . . does not in
      itself show negligence, for this condition may temporarily arise in
      any store of this character, though the proprietor has exercised
      due care; and, if it appears that proper efforts are made to keep
      clean the passageways so they may be safely traversed, he is
      not to be held responsible if some one accidently slips and falls.
      Where, however, it is disclosed, as here, that the dangerous
      condition, arising from the same cause, was not a mere chance
      occurrence, but so often repeated as to call for frequent notices
      to the owner, . . . and the same situation was shown to have
      existed when the customer was hurt, we cannot say the jury was
      not justified in finding defendant failed in his legal duty.

The Supreme Court repeated this principle in Morris v. Atlantic & Pacific

Tea Co., 121 A.2d 135, 138 (Pa. 1956):

      With th[e] prescience of inevitable pedestrian danger in the area
      under the defendant’s supervision and control, it was a question
      of fact for the jury whether the defendant here did anything, or
      enough, in an endeavor to prevent accidents which, in the very
      sequence of inevitable phenomena, could easily occur.

This Court has also noted: “If the condition is one which the owner knows

has frequently recurred, then actual notice of the condition may properly be

found.”   Borsa v. Great Atlantic & Pacific Tea Co., 215 A.2d 289, 292

(Pa. Super. 1965).

      In the instant appeal, both Appellee’s General Manager Greg Martin

and its employee, Anna Collins, testified at their respective depositions, that

bags of grapes would “routinely” come open and their contents would spill to

the floor, causing a falling hazard for customers.    Deposition Transcript of

Greg Martin, Exhibit “C,” at 23-25; Deposition Transcript of Anna Collins,


                                    - 11 -
J-S65031-19



Exhibit “B,” at 11. Martin additionally testified that produce, in general, was

“more apt to separate” from its “display area” or “packaging” than other

products found in the store, and Collins agreed that “produce would fall on

the floor in the produce section[.]”    Deposition Transcript of Greg Martin,

Exhibit “C,” at 24; Deposition Transcript of Anna Collins, Exhibit “B,” at 11.

      Ergo, assuming the jury were to find Martin’s and Collins’s testimony

to be credible, it could conclude that the dangerous condition at issue in the

instant case – grapes and their juice on the floor of the produce aisle – was

one that Appellee knew frequently recurred; if so, actual notice of the

condition may properly be found. Borsa, 215 A.2d at 292.

      Thus, the next question must be whether Appellee’s “conduct or failure

to act meets the standard of reasonable care and diligence[,]” which “is

normally a matter for the jury to determine unless the evidence clearly

establishes as a matter of law that [it] is not chargeable with fault.” Blasi

v. Bonnert, 142 A.2d 752, 755 (Pa. Super. 1958); see also Greco v. 7-Up

Bottling Co. of Pittsburgh, 165 A.2d 5, 10 (Pa. 1960) (whether

defendant’s “conduct or failure to inspect met the standard of reasonable

care and diligence was a matter for the jury”).

      In the instant matter, Collins testified that she never received any floor

maintenance or safety training, and Martin and March corroborated that

none of Appellee’s employees received such training. Deposition Transcript

of Anna Collins, Exhibit “B,” at 17; Deposition Transcript of Greg Martin,

Exhibit “C,” at 23; Deposition Transcript of Noah March, Exhibit “D,” at 22.

                                     - 12 -
J-S65031-19



Martin and March also both testified that Appellee had no written policies or

procedures for checking the produce section or any aisle for debris or

hazards. Deposition Transcript of Greg Martin, Exhibit “C,” at 18; Deposition

Transcript of Noah Match, Exhibit “D,” at 16.    Match further testified that

Appellee did not require its employees to keep a written record or any log of

floor maintenance at the store. Deposition Transcript of Noah Match, Exhibit

“D,” at 17-18. According to Match, Appellee’s sole procedure for addressing

floor spills and hazards was simply for employees to clean up if they saw

anything; there was no specific person charged with going around and

checking floors. Id. at 19-20.

     Given this evidence, we find that there was a genuine issue of material

fact as to whether Appellee exercised reasonable care to discover and to

protect against the dangerous condition of fallen grapes and their juice, and

this genuine issue should have been submitted to the jury, as fact-finder.

See Pa.R.C.P. 1035.2; Kovacevich, 172 A.3d at 90-91.

     We note that, in reaching the opposite conclusion, the trial court had

relied heavily upon Myers, 606 A.2d 926. Trial Court Opinion, filed June 4,

2019, at 2-4. However, Myers can be distinguished from the current action,

because, in Myers, the “appellant ha[d] presented no evidence that appellee

failed to exercise reasonable care.” 606 A.2d at 930. Similar to the current

appeal, the appellee in Myers owned a supermarket, and the appellant

slipped on a grape in the produce aisle.    Id. at 927-28.   Nevertheless, in

Myers, unlike in the current case, the market “had assigned two employees

                                   - 13 -
J-S65031-19



to watch over” the produce section, who had to “clean the entire time that

they are on duty[,]” and, accordingly, the appellant could not establish that

the appellee failed to exercise reasonable care and thus was negligent in

maintaining the produce aisle. Id. at 929-31.

      Myers, id. at 930-31, relies heavily on Martino v. Great Atlantic &

Pacific Tea Company, 213 A.2d 608 (Pa. 1965).            In Martino, as in the

current matter and in Myers, the plaintiff had slipped on a grape on the

floor of the defendant’s store. Id. at 609. Also like the instant action, the

plaintiff in Martino presented testimony that produce frequently fell to the

floor. Id. Nonetheless, contrary to the instant appeal, the store in Martino

had an employee who was required to keep the produce area, including the

floor, clear of debris.    Id. at 610.   The Supreme Court of Pennsylvania

concluded that the store’s actions did not “constitute[] negligence . . . , since

every reasonable effort was made to keep the passageway clean.”              Id.

Consequently, Myers and its controlling case, Martino, can be differentiated

from the instant appeal.

      For these reasons, if the evidence is viewed in the light most favorable

to Appellant as the non-moving party, there are genuine questions of

material fact as to whether the hazardous condition at issue was one that

has frequently recurred and whether Appellee had exercised reasonable care

to discover and to cure such transitory hazardous conditions. Kovacevich,

172 A.3d at 90-91; Reason, 169 A.3d at 100; Myers, 606 A.2d at 929.

These questions thereby should have been submitted to a jury, as fact-

                                     - 14 -
J-S65031-19



finder, and the trial court’s grant of summary judgment thus was improper.

Pa.R.C.P. 1035.2.

      In the alternative, even assuming there were no genuine issues of

material fact as to whether grape spills or grape juice spills in general were a

recurring occurrence in Appellee’s produce aisle, there may still be genuine

issues of material fact as to how long this particular grape spill or grape juice

spill was on Appellee’s floor prior to Appellant’s fall. See Pa.R.C.P. 1035.2;

Myers, 606 A.2d at 929.

      The question whether a landowner had constructive notice of a
      dangerous condition and thus should have known of the defect,
      i.e., the defect was apparent upon reasonable inspection, is a
      question of fact. As such, it is a question for the jury, and may
      be decided by the court only when reasonable minds could not
      differ as to the conclusion.

Commonwealth of Pennsylvania, Department of Transportation v.

Patton, 686     A.2d 1302, 1305       (Pa. 1997);     see also Alderwoods

(Pennsylvania), Inc. v. Duquesne Light Co., 106 A.3d 27, 41 (Pa. 2014)

(“[t]he question of constructive notice was a major issue in this case, and

there was substantial conflicting evidence on the issue”; “[i]t was therefore

not a question to be decided by the court”).

      “The length of time required to fasten constructive notice of a

dangerous condition on the owner of premises open to the public fluctuates

according to the nature of the establishment and the need for inspection.”

Davanti v. Hummell, 185 A.2d 554, 555 (Pa. 1962).




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       In Lanni v. Pennsylvania Railroad Co., 88 A.2d 887, 889 (Pa.

1952), the Supreme Court of Pennsylvania concluded that the absence of

any “other footprints” on a grease or oil spill on which plaintiff slipped

“indicate[d] that it was of recent origin[.]”      In Mack v. Pittsburgh

Railways Co., 93 A. 618, 619 (Pa. 1915), another slip-and-fall, the

Pennsylvania Supreme Court likewise found that, although “[t]he length of

time that [grease] remained in the [train] car was not shown by direct

evidence, . . . the jury would have been warranted in finding that it had

remained there for some time,” because it “had footmarks in it, and had

been tramped over by other persons on the car, manifestly before the

plaintiff attempted to alight, as no person immediately preceded her to the

front door.”

       A long line of federal court cases8 have extrapolated from our Supreme

Court’s reliance on footprints through a slick condition to determine


____________________________________________


8      “[A]lthough we are not bound by decisions from . . . courts in
       other jurisdictions, we may use them for guidance to the degree
       we find them useful, persuasive, and . . . not incompatible with
       Pennsylvania law.” Ferraro v. Temple University, 185 A.3d
       396, 404 (Pa. Super. 2018) (citing Newell v. Montana West,
       Inc., 154 A.3d 819, 823 & n.6 (Pa. Super. 2017)), reargument
       denied (June 27, 2018); see also [Commonwealth v.]
       Manivannan, 186 A.3d [472,] 483 [(Pa. Super. 2018),] (“When
       confronted with a question heretofore unaddressed by the courts
       of this Commonwealth, we may turn to the courts of other
       jurisdictions.”).

Farese v. Robinson, 2019 PA Super 336, *23 (filed November 8, 2019).



                                          - 16 -
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constructive notice thereof to include reliance on “tracking” through the

condition – including shopping cart tracks – in order to show constructive

notice of the condition. Craig v. Franklin Mills Associates, L.P., 555 F.

Supp. 2d 547, 552 (E.D. Pa. 2008) (presence or absence of “footprints or

cart tracks” through puddle can be considered to show constructive notice of

condition); Watson v. Boston Market Corp., No. CV 17-5648, 2019 WL

1359739 at *3 (E.D. Pa. Mar. 26, 2019) (memorandum) (“[e]vidence

demonstrating that a substance has existed on the floor for some significant

period of time includes footprints or tracking through the substance”);

Rodgers v. Supervalu, Inc., No. CV 16-3641, 2017 WL 895590 at *4 (E.D.

Pa. March 6, 2017) (memorandum) (“evidence that the puddle was recent”

includes testimony that “it was clear and there were no footprints or trails

from shopping carts through it”), aff’d sub nom. Rodgers v. Moran Foods

LLC, 720 F. App’x 676 (3d Cir. 2018); Katz v. Genuardi’s Family

Markets, Inc., No. CIV.A. 09-645, 2010 WL 2720747 at *3 (E.D. Pa. July 8,

2010) (memorandum opinion)          (“evidence of tracking in the spilled

substance, for instance, is evidence of temporal duration and can support a

finding of constructive notice, while the absence of tracking from the area of

a spill is evidence that the spill is one of recent origin”); Hower v. Wal-

Mart Stores, Inc., No. CIV.A.08-1736, 2009 WL 1688474 at *7 (E.D. Pa.

June 16, 2009) (memorandum) (“the spill here contained no footprints or

shopping cart tracks to suggest how long it was on the floor before the

accident”; “[u]nder these circumstances, a reasonable jury could not

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conclude that Defendant had constructive notice of the spill”); Evans v.

Canteen Corp., No. CIV. A. 94-2381, 1995 WL 355231 at *2 (E.D. Pa. June

13, 1995) (memorandum and order) (citing Gales v. United States, 617 F.

Supp. 42, 44 (W.D. Pa. 1985); Lanni, 88 A.2d 887) (“[a]n important factor

in actions where the plaintiff slips on a spilled substance is whether there are

footprints or ‘tracking’ through and around the area of spill.         Tracking

indicates the spilled substance has been present long enough to give the

proprietor constructive knowledge of its presence.”).

      In the current action, although there was no mention of footprints

through the spill, there was evidence of shopping cart tracks.       Deposition

Transcript of Anna Collins, Exhibit “B,” at 13-14.      Appellant had not been

using a shopping cart when she fell, so the tracks could not have been

caused by her. Deposition Transcript of Appellant, Exhibit “A,” at 50. No

other customers were present in the produce aisle at the time that Appellant

slipped and fell, Transcript of Anna Collins, Exhibit “B,” at 12, 20; as in

Mack, 93 A. at 619, a jury could infer from the fact that the spill was

tracked even though no one had immediately preceded the plaintiff that the

spilled substance had remained there for some time. Consequently, a jury,

if it found Appellant’s and Collins’s testimony to be credible, could infer from

this evidence of tracking not caused by Appellant that the spilled substance

had been present long enough to give Appellee constructive notice of its

presence. See Lanni, 88 A.2d at 889; Mack, 93 A. at 619; Craig, 555 F.

Supp. 2d at 552; Watson, No. CV 17-5648, 2019 WL 1359739 at *3;

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Rodgers, No. CV 16-3641, 2017 WL 895590 at *4; Katz, No. CIV.A. 09-

645, 2010 WL 2720747 at *3; Hower, No. CIV.A.08-1736, 2009 WL

1688474 at *7; Evans, No. CIV. A. 94-2381, 1995 WL 355231 at *2.

      Accordingly, whether the grape or juice existed on Appellee’s floor for

any period of time prior to Appellant’s fall so as to impute that Appellee had

constructive notice of its existence is a fact essential to the cause of action

which in a jury trial would require the issue to be submitted to the jury. See

Pa.R.C.P. 1035.2.

      For the reasons set forth above, we reverse the trial court’s order

granting summary judgment and reinstate Appellant’s cause of action for

negligence.    We remand for further proceedings consistent with this

decision.

      Order reversed. Case remanded. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2019




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