J-S79044-14

                             2015 PA Super 41

MICHAEL RODRIGUEZ,                          :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                 Appellant                  :
                                            :
                    v.                      :
                                            :
KRAVCO SIMON COMPANY D/B/A LEHIGH           :
VALLEY MALL and ENVIRONMENTAL               :
SERVICE CONCEPTS, LLC,                      :
                                            :
                 Appellees                  :   No. 2291 EDA 2014

                Appeal from the Order Entered July 10, 2014
              in the Court of Common Pleas of Lehigh County,
                    Civil Division, at No(s): 2013-C-1195

BEFORE:     ALLEN, OLSON, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:        FILED FEBRUARY 20, 2015

      Michael Rodriguez (Rodriguez) appeals from the July 10, 2014 order

which entered summary judgment in favor of Kravco Simon Company, d/b/a

Lehigh Valley Mall (the Mall), and Environmental Service Concepts, LLC

(ESC) (Defendants, collectively).     We reverse and remand for further

proceedings consistent with this opinion.

      Succinctly, the facts of this case are as follows.   On June 6, 2011,

Rodriguez was walking in the Lehigh Valley Mall when he slipped in a puddle

of brown liquid and fell, breaking his leg.       In his subsequently-filed

negligence case, Defendants moved for summary judgment. The trial court

granted Defendants’ motion, determining that Rodriguez failed to come forth




*Retired Senior Judge assigned to the Superior Court.
J-S79044-14


with evidence that would allow a jury to conclude that Defendants had actual

or constructive notice of a dangerous condition.

     Rodriguez timely filed a notice of appeal, and presents this Court with

the following questions, which we have reordered for ease of disposition.

     1.     Did the [trial] court err in finding that the dried nature of
            the spill did not create the inference that a sufficient period
            of time had passed for constructive notice to Defendants?

     2.     Did the [trial] court err in disregarding the Defendants’
            written admission of failure to prevent the accident?

     3.     Did the [trial] court err in disregarding the Defendants’
            loss of important evidence as a factor to be weighed in
            [deciding] Defendants’ motion for summary judgment?

Rodriguez’s Brief at 4 (suggested answers and unnecessary capitalization

omitted).

     We consider Rodriguez’s questions mindful of our standard of review.

     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 non-
     moving party to adduce sufficient evidence on an issue essential



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J-S79044-14


      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.

Sokolsky v. Eidelman, 93 A.3d 858, 861-62 (Pa. Super. 2014) (quotation

marks and citations omitted).

      The parties agree that Rodriguez was at the Lehigh Valley Mall as an

invitee, and thus the following principles of law are applicable.

      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 (2d) OF TORTS § 343. This Court has explained the import of

this section as follows:

      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. 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



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J-S79044-14


      condition, or that it had actual or constructive notice of the
      condition.

Zito v. Merit Outlet Stores, 647 A.2d 573, 575 (Pa. Super. 1994) (internal

citations and quotation marks omitted).1

      Rodriguez first argues that the testimony regarding the characteristics

of the puddle in which he slipped satisfied his burden of coming forth with

evidence of Defendants’ constructive knowledge of the dangerous condition.

Rodriguez’s Brief at 14-17. The trial court rejected this argument as follows.

            In this   case, [Rodriguez] argues that the liquid substance
      on the floor     remained on the floor for a period of time long
      enough for      edges of the liquid to become dry and sticky.
      [Rodriguez]     further argues that such evidence establishes
      constructive    notice of the dangerous condition on behalf of
      Defendants.

            [Rodriguez] testified regarding the substance as follows:

            And also, I want to say like, when I fell, I was like in
            the main - in the puddle of the dark liquid. And
            when I put my hands down, I seen like around the
            edges of the puddle or whatever, it was like -- it was
            like drying up.    The liquid was like drying up,
            basically, ‘cause my hand wasn’t wet or nothing.

1
  The author of this opinion has for decades noted his disagreement with
Pennsylvania law in this area. See Goodman v. Chester Downs and
Marina, LLC, 39 A.3d 371, 372 (Pa. Super. 2012) (Strassburger, J.
concurring) (citing Landis v. Giant Eagle, Inc., 142 P.L.J. 263 (1994), and
Duff v. Wal-Mart Stores, Inc., 2002 WL 34098113 (Pa. Com. Pl. 2002)). I
write this specially concurring footnote to express my continued belief that,
“[b]etween these two [potentially] innocent parties, fairness should require
the store to pay as a cost of operating its business.” Id. at 372 (quoting
Duff). See also Commonwealth v. King, 57 A.3d 607, 633 n.1 (Pa.
2012) (Saylor, J. concurring) (“Special concurrences such as this are
somewhat unusual but not without precedent.”).


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J-S79044-14


           That’s why I first, when I fell, I didn't understand
           how I fell or why I fell. You understand what I’m
           saying? And I looked, I seen I was in a puddle of the
           -- the dark brown liquid.

     [Rodriguez] further testified:

           Q     Was the substance sticky?

           A     Like I said, around the edges, it was. But like
                 the main puddle, it wasn’t, no, ‘cause there
                 was like -- say this is the puddle right here,
                 and like around here is like the edges of the
                 puddle. That was like dry with or -- or sticking
                 up or whatever. But this right here was liquid
                 (indicating).

           Q     Do you know how long the liquid was on the
                 floor --

           A     No, ma’am.

           Q     before you fell?

           A     No way -- no way I can know. I assumed
                 afterwards, like I said, when I’m on the floor,
                 and I have my hands, I don’t have no liquid on
                 my hands, and like I said around the edges
                 was dry. So that’s -- you know, if it’s dry, then
                 I assume it’s been there for a little while, you
                 know.

            [Rodriguez] also offered the Affidavits of his fiancée and
     her brother which similarly verify that [Rodriguez] fell in a brown
     liquid that had dried around the edges.

                                      ***

           Viewing the record in the light most favorable to
     [Rodriguez] as the nonmoving party, we find that [Rodriguez]
     has failed to present any evidence regarding how long the brown
     liquid existed on the floor. Although [Rodriguez’s] evidence



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J-S79044-14


       allows one to infer that the brown liquid was on the floor long
       enough for the edges to become dry and sticky, it does not allow
       an inference as to the length of time the liquid was on the floor
       to determine if the dangerous condition existed long enough to
       infer constructive notice on Defendants. Without such evidence,
       there is nothing that would sufficiently enable a jury to impute
       constructive notice on Defendants.

Trial Court Opinion, 7/10/2014, at 4-7 (footnotes and citations omitted).

       We agree with the trial court. Without evidence of how long it takes

the liquid in question to become sticky or dry, the jury would be unable to

determine whether the spill was present for a sufficiently long time to

warrant a finding of constructive notice.         The cases cited by Rodriquez,

which are primarily cases from other jurisdictions, do not convince us

otherwise. See Rodriguez’s Brief at 14-17 (citing cases from federal courts

and Wyoming).

       Rodriguez next argues that Defendants’ “compelling admission of

liability”   warranted   denial   of   their   motion   for   summary   judgment.

Rodriguez’s Brief at 20.     Rodriguez’s argument is based upon the injury

report prepared on a Simon Property Group form, which contains the

following:

        Injury Details
        Did the public safety officer             No
        witness the accident?

        Was the scene inspected                   Yes
        immediately following the
        accident?




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J-S79044-14


      Date/Time of inspection                  6/6/2011 7:02:00 PM
      Injury scene surface condition           Slippery Due To Liquid
                                               On Floor
      Defect or     obstruction   in/on        Yes
      surface

      Describe obstruction                     Liquid On Floor
      Action taken to prevent injury           None
      Outside temperature                      70’s

Rodriguez’s Response to Defendants’ Motion for Summary Judgment,

4/28/2014, at Exhibit D (punctuation added). Rodriguez maintains that this

“admission”    precludes the   entry   of    summary   judgment in    favor   of

Defendants.

     Rodriguez’s argument fails. “It is unquestionable that a store owner

owes a duty of care to the patrons of the store. However, the owner of the

store is not an insurer of the safety of its customers.”         Myers v. Penn

Traffic Co., 606 A.2d 926, 928 (Pa. Super. 1992).        Defendants were not

obligated to follow Rodriguez around the mall, prepared to leap in and save

him should some unexpected danger present itself. Rather, under the law

discussed above, Defendants had a duty to protect Rodriguez from dangers

of which they knew or would have known upon reasonable monitoring of the

premises.     As the trial court aptly noted, “no action was necessary if

Defendants did not know about the spill or if the spill did not exist long

enough to impute Defendants knowledge of it.”            Trial Court Opinion,




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J-S79044-14


7/10/2014, at 6 n.2.     This document contains no admission of liability.

Thus, Rodriguez’s second issue warrants no relief.

      Finally, Rodriguez argues that the potential for an adverse inference

from Defendants’ spoliation of evidence warranted denial of Defendants’

motion.   Rodriguez’s Brief at 17-19.   The trial court discussed Rodriguez’s

spoliation contentions and its rejection of them as follows.

      [I]n an attempt to support the constructive notice claim,
      [Rodriguez] relies on an asserted adverse inference regarding
      maintenance records that were not produced by Defendants.
      [Rodriguez] argues that in response to a discovery request,
      Defendants produced maintenance records for the Lehigh Valley
      Mall for the month of June 2011; missing from the records is the
      June 6, 2011, paperwork. [Rodriguez] argues that the failure to
      preserve a maintenance record that was clearly material to this
      action entitles [Rodriguez] to an appropriate inference to review
      all evidence in as strong a light as possible against Defendants.

            [Rodriguez] has not raised this issue with a motion for
      spoliation sanctions to allow this court to review the elements of
      spoliation and make a determination regarding any adverse
      inference based on the missing discovery.1 In reviewing this
      motion for summary judgment, we are limited to the record
      before us, and said record does not include an adverse inference
      regarding the lack of maintenance records for the date in
      question.
            ______
            1
              To determine the appropriate sanction for spoliation, the
            trial court must weigh three factors:

                  (1) the degree of fault of the party who altered
                  or destroyed the evidence; (2) the degree of
                  prejudice suffered by the opposing party; and
                  (3) whether there is a lesser sanction that will
                  avoid substantial unfairness to the opposing
                  party and, where the offending party is




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J-S79044-14


                  seriously at fault, will serve to deter such
                  conduct by others in the future.

            PTSI, Inc. v. Haley, 71 A.3d 304, 316 (Pa. Super. 2013).

Trial Court Opinion, 7/10/2014, at 6.

      Neither the trial court nor Defendants cite any authority for the

proposition that spoliation sanctions must be obtained, via prior motion and

order, in order for the issue to affect the summary judgment analysis. On

the other hand, given the well-established standard for consideration of

summary judgment motions, we hold that the open question about

spoliation precludes the entry of summary judgment in favor of Defendants.

      Since the early 17th century, courts have admitted evidence
      tending to show that a party destroyed evidence relevant to the
      dispute being litigated. Such evidence permitted an inference,
      the spoliation inference, that the destroyed evidence would have
      been unfavorable to the position of the offending party. … [T]he
      evidentiary rationale [for the spoliation inference] is nothing
      more than 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 document.

Mount Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d

1263, 1269 (Pa. Super. 2001) (internal citations and quotation marks

omitted) (quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78-

79 (3rd Cir. 1994)). “[T]he spoliation doctrine is broadly applicable to cases

where relevant evidence has been lost or destroyed.” Id. at 1269 (internal

quotation marks omitted).



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J-S79044-14


       Rodriquez, referencing deposition testimony and exhibits of record,

showed that the Mall contracted out housekeeping duties to ESC, whose

employees were to perform functions, including sweeping and spot mopping

the floors, on an hourly basis.       Memorandum of Law in Response to

Defendants’ Motion for Summary Judgment, 4/28/2014, at 3-4 (pages

unnumbered) (citing Exhibits B and C). On a form entitled Sweep Sheet &

Spill Log, ESC employees initialed to document the completion of each task,

each hour.     Id. at 4 (citing Exhibit F).    Although ESC’s representative

testified that he collected the forms from the employees each day and sent

them to ESC’s corporate office each week, the record for the day of the

incident is missing. Id. at 4-5 (citing Exhibit C).

       When considering a motion for summary judgment,

       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.

Hogg Const., Inc. v. Yorktowne Medical Centre, L.P., 78 A.3d 1152,

1154    (Pa.   Super.   2013)   (quoting   Brubacher   Excavating,    Inc.   v.

Commerce Bank/Harrisburg, N.A., 995 A.2d 362, 365 (Pa. Super.

2010)).

       Here, Rodriguez has come forth with evidence that at least casts a

doubt as to the existence of a question of material fact.       With the open




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J-S79044-14


possibility that the ESC employees failed to check the floors as scheduled

prior to Rodriguez’s fall, it is not clear that Defendants’ are entitled to

judgment as a matter of law. See, e.g., RESTATEMENT (2d) OF TORTS § 343

cmt. B (“To the invitee the possessor owes not only [the duty to disclose

known dangers], but also the additional duty to exercise reasonable

affirmative care to see that the premises are safe for the reception of the

visitor, or at least to ascertain the condition of the land….”).   Accordingly,

the trial court erred in granting Defendants’ motion for summary judgment

on this record.

      Order reversed.     Case remanded for further proceedings consistent

with this opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/20/2015




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