Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <a href="https://www.wcmlaw.com/wp-content/uploads/2019/08/Boukassi-v.-Wal-Mart-Stores-Inc.-1.pdf"><em>Boukassi v. Wal-Mart Stores, Inc.</em></a>, the Superior Court affirmed a grant of summary judgment in favor of defendants Wal-Mart Stores Inc. and Wal-Mart Store #2141 (hereinafter “Wal-Mart”) in a premises liability case. The court decided that there was a lack of evidence that store employees had constructive notice of a spilled substance, so summary judgment remained appropriate.</p>
<p style="text-align: justify;">Appellant alleged that she slipped on an unforeseen oil-like substance during a brief visit to Wal-Mart. In its motion for summary judgment, Wal-Mart argued that there was no genuine issue of material fact due to insufficient evidence of actual or constructive notice of the spill or a breach of its duty of care. The appellant responded that as a business invitee, Wal-Mart had a duty to protect her from injury on its premises.  The trial court granted Wal-Mart’s motion. In her appeal, appellant argued that the circumstantial evidence that she fell on spill in a “busy section” of its store should allow her to overcome summary judgment.  She further argued that equitable principles would allow her to recover regardless of negligence by either party and that Wal-Mart was in violation of its own “Slip, Trip and Fall Guidelines”.  The guidelines require employees to regularly monitor and “sweep” the area in anticipation of an unsafe condition.</p>
<p style="text-align: justify;">Wal-Mart conceded that appellant was a business invitee at the time of the incident.  Under the Restatement (Second) of Torts § 343, in order for a party to be liable to an invitee, the plaintiff must prove that the defendant (1) knew of or should have discovered the dangerous condition through reasonable diligence; (2) recognized that the plaintiff was unaware of the unsafe condition; and (3) breached the duty of care that they owed.  While Wal-Mart as the landowner owed a duty to appellant, the court states that there is no evidence to support that they had actual or constructive notice of the spilled substance.</p>
<p style="text-align: justify;">The decision comes down to the issue of time. Appellant does not present any evidence that Wal-Mart had a sufficient length of time to become aware of the spill. The appellant stated herself that even she did not notice the spill when she entered the store or walked to exit. The court compares this case to <em>Toro v. Fitness International LLC</em>., 150 A.3d 968 (Pa. Super. 2016), where the plaintiff similarly filed a negligence claim following a slip and fall on a soapy substance at a gym. Similar to Wal-Mart in this case, there was an expectation that the floor was being monitored, but a lack of sufficient evidence to indicate that the fitness center had constructive notice of the spill.  Ultimately, here as in <em>Toro</em>, the Superior Court finds that “mere speculation” that the spill may have lingered is insufficient to demonstrate a genuine issue of material fact.  In order to survive summary judgment, there must be concrete evidence of either actual knowledge or unreasonable disregard of a dangerous condition for a period of time.</p>
<p style="text-align: justify;">Thanks to Gabrielle Outlaw for her contribution to this post. Please email <a href="mailto:VPinto@wcmlaw.com">Vito A. Pinto</a> with any questions.</p>