Wade Clark Mulcahy LLP

<p style="text-align: justify;">In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2020/12/Derito-v.-Walmart-Stores-East-L.P..pdf">Derito v. Walmart Stores East, L.P.</a></em> (District Court of the Western District of Pennsylvania), plaintiffs Charles and Kimberly DeRito (collectively “DeRito”) were unable to overcome defendant Walmart’s summary judgment motion in this slip and fall action.  According to DeRito, Walmart’s front door was stuck open for approximately 31 seconds due to a malfunction while it was actively snowing.   Snow and ice was allegedly blowing into the store when  Mr. DeRito slipped and fell due to an accumulation of “powdery” snow and ice inside the store.  Walmart had salted the pathway leading to its entrance and had weather mats laid out at the entry of the store.  Walmart filed a motion for summary judgment arguing that its employees did not have notice of an allegedly dangerous condition.  The Court granted the motion dismissing DeRito’s claims.</p>
<p style="text-align: justify;">In Pennsylvania, landowners owe business invitees the highest duty of care.  However, the simple fact that a plaintiff was allegedly injured on a defendant’s premises does not automatically prove negligence.  While Mr. DeRito testified powdery snow had been blowing into the store because the door was stuck open, Walmart employees testified they saw no accumulation of snow, ice or water at the entrance when they went to inspect the malfunctioning door.  While accepting DeRito’s allegations that the malfunctioning door and alleged powdery snow/ice may be hazardous conditions, DeRito failed to prove that Walmart had actual notice of them.  Also, DeRito did not demonstrate Walmart had actual knowledge of snow accumulation or the malfunctioning door, nor did DeRito offer any evidence that the malfunctioning door was a recurring problem.  Thus, he could not prove “actual notice” to Walmart.</p>
<p style="text-align: justify;">Concerning “constructive notice,” Pennsylvania courts recognize the the length of time an allegedly hazardous condition remains in place is indicative of a property owner’s constructive notice.  Here, the malfunctioning door was only open for thirty-one seconds before Mr. DeRito fell.  Thus, Walmart employees would not have had sufficient time to discover the condition prior to his alleged slip and fall and DeRito provided no evidence to support a claim there was snow inside the store entrance prior to his arrival.  Thus, DeRito’s claim slipped and fell short of the legal requirements for negligence.</p>
<p style="text-align: justify;">Given our recent winter storm and forecast for more, this is a reminder that a slip and fall on snow or ice does not automatically confer liability on a property owner.  Plaintiff still  has the burden to prove the property owner violated the standard of care owed to an invitee.</p>
<p style="text-align: justify;">Thanks to Gabrielle Outlaw for his contribution to this post. If you have any questions or comments, please contact <a href="mailto:tbracken@wcmlaw.com">Thomas Bracken</a>.</p>
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