Wednesday, September 23, 2009

Recent Slip and Fall Cases of Note

The below recent slip and fall cases of note were found in the Digests in the August 21, 2009 Pennsylvania Law Weekly. Copies of the opinions can be purchased from the Law Weekly for a nominal price by calling 1-800-276-7427 and providing the noted PICS Case Numbers.

In the case of Davis v. City of Chester, PICS Case No. 09-1536 (E.D. Pa. Sept. 9, 2009, Fullam S. J.), Defendants City of Chester and Amtrak were both granted summary judgment in a slip and fall case involving ice on a sidewalk.

The city was found to be immune from suit because the claims presented did not arise under any of the exceptions to the Pennsylvania Political Subdivision Tort Claims Act. More specifically, the real property exception does not apply to sidewalks. Also, the streets exception does not apply where the accident was not in a street.

The Court also noted that, for the sidewalk exception of the Tort Claims Act to apply, the cause of the fall must be an artificial condition or defect of the sidewalk itself. Under Pennsylvania law, ice and snow do not count under this exception even if it is shown that city employees often cleared the sidewalk.

Amtrak was granted summary judgment because it did not own or control the sidewalk in question. The Court also ruled that Amtrak had no liability for an abutting sidewalk unless the sidewalk conferred some benefit to Amtrak. As the sidewalk in question was across the street from the station, it conferred no benefit to Amtrak. Accordingly, the court granted summary judgment to both Defendants.

In the case of Murray v. Dollar Tree Stores, 2009 WL 2902323, PICS Case No. 09-1532 (E.D. Pa. Sept. 10, 2009 Kelly, S. J.), the court granted summary judgment to the Defendant store under a notice defense.

The Plaintiff asserted that she slipped and fell on a liquid on the floor of an aisle in a Dollar Tree Store. The Plaintiff admitted at her deposition that she did not know how long the liquid was there before she fell and there was no evidence about when the spill occurred. There was also no evidence presented that there was any tracking through the liquid or dirt in the spill so as to show it may have been there a while.

The only evidence the Plaintiff offered was that she was in the store for about 15 minutes prior to her fall and, therefore, the spill must have been present for that length of time as well. The Court summarily rejected this speculation.

The Murray Court ruled that a store owners is not an insurer of its patrons’ safety. Rather, a plaintiff must prove that the defendant store owner had actual or constructive notice of the condition. Constructive notice requires proof that the condition was present long enough that in the exercise of reasonable care the defendant should have known of the spill. This in turn requires evidence of the duration of the spill. Without such evidence, as here, a plaintiff cannot make out a case of negligence to proceed to a jury.

Significantly, the Court also rejected the Plaintiff's contention that the store failed to follow its own inspection procedures to keep the floors of the store safe. In addition to noting that the Plaintiff failed to offer any evidence of the inspection procedures of the store or any violation thereof, the Court also found that such evidence was immaterial in any event as it did not serve to establish how long a spill lasted on the floor to satisfy a showing of constructive notice of the condition on the part of the store owner.

In so ruling, the Court cited to Hower v. Wal-Mart Stores, Inc., 2009 WL 1688474 (E.D.Pa. June 16, 2009), another notice defense case with essentially the same analysis and result. That case was previously highlighted in this blog and can be found by going to the "Label" in the right-hand column of this blog and clicking on "Premises Liability" or "Slip and Fall."

Thus, these cases show an increasing willingness of the Pennsylvania courts to grant summary judgment to defendant store owners on a notice defense where a plaintiff admits that they can not state how long a spill was on the floor prior to the incident and where there is no evidence of foot tracks or dirt in or around the spill.

The courts have also repeatedly rejected plaintiffs efforts to attach liability to the defendant store owner in such cases under an argument that the store failed to follow its own floor inspection procedures. The courts have stated that such evidence does not offer any support to show how long a specific spill remained on the floor so as to establish constructive notice on the part of the defendant.

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