Wade Clark Mulcahy LLP

<p style="text-align: justify;">"Slip and fall" cases are so common that many people, even some seasoned professionals, lose sight of the fact that a plaintiff must establish more than a slip and fall in order to recover.  In the recent case of <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/01/Biggs-v-Sams-East.pdf">Biggs v Sam's East</a></em> the U.S. District Court for the Western District of Pennsylvania reaffirmed this basic principle.  In <em>Biggs, </em>the plaintiff was a woman who slipped and fell at a Sam’s Club café in Monroeville, Pennsylvania.  According to the plaintiff, she sat down at the store's café with her sister and saw an elderly woman fall to the ground.  As she got up to the help the woman, she also fell to the floor.  While the plaintiff admitted that she did not notice anything about the flooring or any substance on the ground, she claimed the floor was slippery, and that her pant leg felt damp after the fall.</p>
<p style="text-align: justify;">Similarly, the Sam’s Club customer incident report only stated that the floor was “very slippery” but made no mention to any substance or dangerous condition on the floor itself. Plaintiff’s complaint referred to the Sam’s Club floor as “an unnaturally slippery floor” and claimed that Defendant “knew or should have known of the dangerous condition and failed to warn or eliminate the hazard to its invitees.”</p>
<p style="text-align: justify;">With no identifiable dangerous condition, plaintiff’s counsel then attempted to depend upon surveillance video and claimed that prior to Plaintiff’s fall, a patron spilled a drink and wiped the drink with his foot. The Court found that the video was grainy and that “the video contains absolutely no visual of someone spilling a drink.” The Court held that it could not consider this theory pursuant to Federal Rule of Civil Procedure 56, as Plaintiff’s counsel was relying on a mere theory/speculation to what the video depicted.  An expert also tested the floors for slip resistance and opined that the floors of Sam’s Club “met the scientific criteria for a slip resistant floor and that a slip and fall incident would not be expected or likely under normal conditions (i.e. without the presence of a foreign substance).”</p>
<p style="text-align: justify;">The Court relied upon the Restatement (Second) of Torts § 343 and stated that Pennsylvania courts, when construing § 343, found where the Plaintiff can show that a dangerous condition is “traceable to the proprietor or his agents, then the plaintiff need not prove that the owner had actual notice of the condition. . .” However, here, no reasonable jury could find that Defendant breached a duty to the Plaintiff as Plaintiff stated that she did not see the floor in front of her before she fell, and she never identified any foreign substance or dangerous condition on the floor. She merely described the floor as being “very slippery” and stated that her pant leg was damp.</p>
<p style="text-align: justify;">Thus, the Court granted the Defendant’s motion for summary judgment because Plaintiff failed to raise an issue of material fact that there was a dangerous condition in the café area of which Defendant had actual notice, or that the condition existed for such a length of time that Defendant should have known of it as required under Pennsylvania law.</p>
<p style="text-align: justify;"><em>Biggs </em>should provide some comfort to store owners and the insurers because it reaffirms that a slip, a fall, and a plaintiff's bald characterization is insufficient for a plaintiff to recover.  Without a dangerous condition of some sort, no recovery can be had.</p>
<p style="text-align: justify;"><span>Thanks to Emily Finnegan for her contribution to this post.  Please email <a href="mailto:mgauvin@wcmlaw.com">Michael Gauvin </a></span><span>with any questions.</span></p>