Summary Judgment for Defendant Store in Slip and Fall Case

In the case of Hower v. Wal-Mart Stores, Inc., 2009 WL 1688474 (E.D.Pa. June 16, 2009), the Eastern District Federal Court granted summary judgment in favor of the defendant store on a notice defense in a slip and fall case.

The plaintiff was injured when she allegedly slipped and fell on a bit of bubble bath on the floor of the store. She sued the store on a premises liability negligence claim. After discovery, the defendant store moved for summary judgment on the grounds that the plaintiff could not produce evidence of the length of time the spill remained on the floor prior to the moment the plaintiff encountered it and fell.

In reviewing the notice defense, the court stated that in order to establish actual or constructive notice on the part of the defendant, the plaintiff had to prove that the defendant had a hand in creating the dangerous condition or that the condition existed for a sufficient amount of time that the defendant should have noticed it and cleaned it up in the exercise of reasonable care towards its customers.

The Hower court noted that the courts of Pennsylvania have "'consistently required a plaintiff to provide some proof as to the length of time a spill existed on the floor to establish constructive notice....'" The court provided a thorough review other Pennsylvania decisions granting summary judgment in the absence of such evidence and confirmed that constructive notice may not be inferred from the circumstances.

In Hower, no concrete evidence was presented as to the length of time the spill was on the floor. It was additionally noted that there was no evidence presented as to any footprints or tracking through the spill, even though the store was very busy on the day of the incident. The plaintiff also admitted that she saw no dust or dirt in the spill. Consequently, the court found no evidence to even suggest that the spill existed long enough such that the defendant, in exercise of ordinary care, should have discovered it and cleaned it up.

The court also rejected the plaintiff's contention that the store negligently failed to adhere to its "safety sweep" program of periodically checking the aisles for dangerous conditions. The court refused to allow the plaintiff to utilize evidence of the lack of safety sweeps to overcome the lack of evidence pertaining to the duration of the spill. In other words, the court noted that the defendant's alleged failure to do a safety sweep "says nothing about how long the spill was present." Accordingly, summary judgment was entered in favor of the store.