Video Evidence of Frequent Recurrences of Alleged Creation of Liquid on Floor Sufficient to Create Issues of Fact Regarding Constructive Notice in a Slip and Fall Case (Non-Precedential)

In its non-precedential decision in the case of Oudolsky v. Mount Airy Casino #1, LLC, No. 3109 EDA 2023 (Pa. Super. Oct. 22, 2024 Kunselman, J., Nichols, J., and Beck, J.) (Op. by Kunselman, J.), the Pennsylvania Superior Court reversed a trial court’s entry of summary judgment in a slip and fall case.

This case involved a plaintiff who slipped and fell at a casino in an area where there was a marble floor and a nearby sanitizing liquid dispenser.  Video evidence showed other patrons utilizing the dispenser in the time before the plaintiff came along and slipped and fell.

The court noted that proof of actual or constructive notice on the part of a landowner, that a dangerous condition was caused by the landowner, by way of actual notice through frequent recurrences of the dangerous condition can amount to sufficient evidence to prove liability.

The court noted that evidence from surveillance video was sufficient to create issues of fact as to both recurrence and length of time on the issue of constructive notice.

The Superior Court also noted that the close proximity of the Defendant’s dispenser to where the Plaintiff slipped on liquid is sufficient circumstantial evidence as to the source of the liquid to enable the jurors to find causation. The court noted that there was no other source for the liquid present.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.


I send thanks to Attorney James M. Beck for the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Summary Judgment Granted in Premises Liability Case Due to Lack of Actual or Constructive Notice

In the case of Cummins v. Wal-Mart Stores East, L.P., No. 1:22-CV-01205(M.D. Pa. July 24, 2024 Schwab, Mag. J.), the court granted a Motion for Summary Judgment in a slip and fall case after finding that the Plaintiff failed to produce any evidence of actual or constructive notice of any allegedly defective condition on the part of the store.

The court noted that the record confirmed that the lack of actual notice was not disputed. In terms of any allegation of construction notice, the court confirmed that there was no evidence that the claimed spill had existed for a significant period of time such as evidence of any footprints through the area.

The court also ruled that the fact that the spill was allegedly in multiple aisles did not, in and of itself, establish a duration of the subject spill.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.

Summary Judgment Denied In Supermarket Slip and Fall That Occurred in Checkout Aisle

In the case of Scillia v. The Golub Corporation, No. 3772-CV-2022 (C.P. Monroe Co. Jan. 18, 2024 Williamson, J.), the court denied a Motion for Summary Judgment in a supermarket slip and fall case.

According to the Opinion, the Plaintiff’s incident occurred in a narrow pathway between checkout registers where the Plaintiff allegedly slipped and fell as a result of a liquid on the floor.

The Defendants filed a Motion for Summary Judgment arguing that the Plaintiffs failed to meet their burden of proving negligence in terms of actual or constructive notice of the condition, and/or under an argument that the doctrine of an open and obvious condition defeated the Plaintiff’s case.

The court denied the Motion for Summary Judgment after finding that issues of fact existed with respect to both arguments presented by the defense.

The court emphasized that the incident occurred directly in a check-out aisle that was being manned at all times by a cashier. The court distinguished this case from other grocery store slip and fall cases in other parts of of supermarket stores based upon, in part, upon the fact that the incident occurred in a narrow area where customers are required to walk and which area was directly in front of a cashier employee.

The court also noted that there were sets of cart tires on the floor in the area of the liquid puddle, which would tend to possibly show that the puddle was there for a longer period of time such that a jury could find that the puddle arguably could have been noticed by store employees before the Plaintiff encountered it.

With regards to the arguments made by the defense under the open and obvious doctrine, the court again found that there were also issues of fact on that question that should be left to be decided by a jury.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Shvets on www.pexels.com.

Failure To Provide 6 Month's Notice to Government Defendant Should Be Raised as a New Matter Defense

In the case of Meese v. Slater-Bailey, No. 10342 of 2019, C.A. (C.P. Lawrence Co. Oct. 9, 2019 Motto, J.), the court held that an issue regarding whether a Plaintiff provided six (6) months’ notice to a governmental entity Defendant after the date of an injury regarding the claims presented was an issue that was required to be raised by way of an Answer and New Matter and not Preliminary Objections.

In this case, the Plaintiff was allegedly injured when her vehicle was struck by a school bus.

The Defendant school district filed Preliminary Objections to the Complaint raising the sole issue of whether the Complaint was legally insufficient due to the Plaintiffs’ alleged failure to provide notice to the school district and the Attorney General within six (6) months of the date of injury of the potential claim, as required by 42 Pa. C.S.A. §5522. That statute provides that an injured party must given written notice to the governmental entity Defendant prior to commencing a civil action.

The court ruled that the failure to provide the required §5522 notice was not a jurisdictional defect that could be raised by way of Preliminary Objections, particularly where the Plaintiffs were not required to plead compliance with that statute as an element of any cause of action. Rather, the court noted, the failure of written notice was an affirmative defense that a Defendant should plead in a New Matter under Rule 1030 of the Rules of Civil Procedure.

As such, the court overruled the Defendant’s Preliminary Objection and ordered the Defendant to proceed with the filing of the Answer and New Matter to the Complaint.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (October 29, 2019).

Summary Judgment Granted in Slip on Grape Case

In the case of Pace v. Wal-Mart Stores, No. 17-1829 (E.D. Pa. Sept. 18, 2018 Baylson, J.), the court granted summary judgment to the Defendant was unable to show that the Defendant had actual or constructive notice of a hazardous condition in an alleged slip and fall on grapes or grape juice.  

Notably, where the Defendant produced an affidavit confirming that there was no video of the location where the Plaintiff fell and that no videos had been destroyed, the Plaintiff’s request for an inference of spoliation of evidence was denied.  

A nice overview of the current status of Pennsylvania premises liability law can be seen in this Opinion.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (October 2, 2018).

Plaintiff's Failure to Meet Six Month Notice Requirement in Action Against Governmental Agency Excused

In an unpublished Commonwealth Court decision written by Judge Joseph M. Cosgrove in the case of Dacey v. Luzerne County, PA, No. 156 C.D. 2016 (Pa. Cmwlth. Dec. 6, 2016 McCullough, Cosgrove, Pellegrini, J.J.), the Commonwealth Court reversed the trial court's sustaining of the defendant's Preliminary Objections in a trip and fall case filed against a governmental agency.

The trial court sustained the defendant's preliminary objections which asserted that the Plaintiff's failed to comply with the six month notice requirement under 42 Pa.C.S.A. Section 5522(a).

The appellate court noted that there was no dispute that the Plaintiff had failed to provide notice of the claim to the governmental agency within six months of the incident.

Judge Joseph  M. Cosgrove
Pennsylvania Commonwealth Court

However, the appellate court accepted the argument of the Plaintiff, who was a New Jersey resident, that she was unaware of the six month notice requirement and that ignorance of the law could be deemed a reasonable excuse in this context.  The court also found that there was no prejudice sustained by the defendant by the late notice.

As such the trial court's decision was reversed and the matter was remanded for further proceedings.

Anyone wishing to review this unpublished decision by the Commonwealth Court in the Dacey court may contact me at dancummins@comcast.net.


I send thanks to Attorney Jonathan Comitz of the Wilkes-Barre, PA office of Comitz Law Firm LLC for bringing this case to my attention.  Attorney Jeremy Weinstock of that office handled this matter.

Judge Mazzoni of Lackawanna County Addresses Notice Requirement in UM Case

In his recent April 5, 2013 decision in the case of State Farm Mutual Automobile Insurance Company v. Roshan, No. 2010-Civil-3105 (C.P. Lacka. Co. 2013 Mazzoni, J.), Judge Robert A. Mazzoni entered a verdict in favor of Plaintiff, State Farm, in a nonjury proceeding concerning a declaratory judgment action involving a claim for automobile insurance benefits with regards to a “miss and run accident.”   

Judge Robert A. Mazzoni
Lackawanna County

The issue before the court was whether the Defendant injured party complied with the notice requirements of the MVFRL 75 Pa. C.S.A. §1702 concerning an accident with “an unidentified motor vehicle.”  

Judge Mazzoni found, based upon the record before the court, that the Defendant injured party failed to report the accident to “the police or proper governmental authority” within thirty (30) days as required under §1702.  As such, a non-jury verdict in favor of State Farm was entered by the court. 

Anyone desiring a copy of this Opinion may click this LINK.  

Judge Sibum of Monroe County Grants Summary Judgment Under Hills and Ridges Doctrine

In her recent decision in the case of Schecker v. Village Supermarkets, Inc., PICS Case No. 13-0491 (C.P. Monroe Feb. 13, 2013 Harlacher Sibum, J.), Monroe County Judge Jennifer Harlacher Sibum granted summary judgment to a defendant possessor of land in a snow and/or ice slip and fall case.

According to the opinion, the Plaintiff was dropped off at a supermarket by her husband.  She admittedly noticed that the cement walkway to the front of the store appeared wet but was not covered by snow or ice.  At the time she entered the store there was no snow otherwise in the parking lot and no precipitation was falling.

The Plaintiff exited the store about 15 minutes later pushing a shopping cart. As she walked across the cement surface outside the store she slipped and fell in an area just beyond the store's overhang.

In her Complaint, the Plaintiff alleged that she was caused to fall by a slippery walkway and due to the fact that black ice was allegedly present where she fell.  Discovery confirmed, however, that there were no areas of ice or snow present and that the area merely appeared wet.

In her Opinion, Judge Sibum reviewed the parameters of the Hills and Ridges Doctrine and the issue of actual and/or constructive notice on the part of the Defendants.

Based upon the record before it, the court found that the Plaintiff did not present any evidence that the ice on which she allegedly slipped had accumulated in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger as is all required under the Hills and Ridges Doctrine.

The Court also ruled that notice to the Defendant landowners could not be inferred from an employees' mere presence near the dangerous condition at the time of the incident.  Accordingly, the Defendant's motion for summary judgment was granted.


Anyone desiring a copy of this case may call the Pennsylvania Law Weekly's Instant Case Service at 1-800-276-7427 and give the above PICS Case No.  A small fee will be charged by the Instant Case Service.

Source:  "Case Digests." Pennsylvania Law Weekly (March 12, 2013).

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.

Assumption of Risk Defense Remains Viable in Pennsylvania

My most recent article in the Pennsylvania Law Weekly updates the current status of the the assumption of risk doctrine and concludes that it remains a viable defense under Pennsylvania law. You may view the article, entitled "Alive and Well: Assumption of risk doctrine remains a valid defense," by clicking this LINK.

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.