Bruno, B. v. Sands Bethworks Gaming ( 2021 )

J-A04025-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BERNADETTE BRUNO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
SANDS BETHWORKS GAMING, LLC, :
A/K/A SANDS CASINO RESORT :
BETHLEHEM :
:
Appellee : No. 1231 EDA 2020
Appeal from the Order Entered May 18, 2020
In the Court of Common Pleas of Northampton County
Civil Division at No(s): No. C-48-CV-2019-01317
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED: APRIL 5, 2021
Appellant, Bernadette Bruno, appeals from the order entered in the
Northampton County Court of Common Pleas, which granted summary
judgment in favor of Appellee, Sands Bethworks Gaming, LLC, a/k/a Sands
Casino Resort Bethlehem, in this negligence action. We affirm.
The relevant facts and procedural history of this case are as follows. On
January 1, 2018, Appellant slipped and fell in a restroom stall on Appellee’s
premises. Appellant filed a complaint on February 15, 2019, asserting claims
of negligence against Appellee due to the hazardous condition in the restroom
stall. After the parties completed discovery, Appellee filed a summary
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A04025-21
judgment motion on January 21, 2020. Among other things, Appellee argued
that Appellant “was unable to identify what the alleged wet spot was, was
unaware of how the alleged wet spot had originated, and was unaware of the
length of time the alleged wet spot existed prior to the subject fall[.]”
(Summary Judgment Motion, filed 1/21/20, at 3).
Appellee’s motion also included a witness statement from Christina
Collins, Appellee’s employee who was working in the restroom on the night of
the accident. Ms. Collins indicated she had checked all restroom stalls shortly
before Appellant’s fall, and “everything was good” during her inspection. (Id.
at Exhibit C).
Appellant filed a response in opposition to the summary judgment
motion on April 16, 2020. Regarding the time elapsing between the origin of
the spill and the accident, Appellant asserted “the dangerous condition of the
stall existed when [Appellant] entered the bathroom. The latch for the stall
was broken so no other guests would use that [stall], and [Appellee’s]
bathroom attendant entered that stall five minutes prior to [Appellant].”
(Response, filed 4/16/20, at ¶13).
On May 18, 2020, the trial court granted Appellee’s summary judgment
motion. The court concluded that Appellant “does not allege actual notice of
the alleged harmful condition in the restroom, and has failed to produce
sufficient evidence that, if accepted by a jury, would establish that [Appellee]
had constructive notice of the alleged harmful condition.” (Order, filed
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5/18/20, at 3). The court also noted “the evidence presented by [Appellant]
does not naturally lead to the conclusion that wetness was present on the floor
for any particular length of time.” (Id. at 4).
Appellant timely filed a notice of appeal on June 16, 2020. On July 2,
2020, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained on appeal. Appellant timely filed her Rule
1925(b) statement on July 21, 2020.
Appellant raises one issue for our review:
Did the trial court err in holding on summary judgment that
[Appellant] failed to meet her burden of production
regarding the issue of actual/constructive notice in this
premises liability action?
(Appellant’s Brief at 3).
Our standard of review of an order granting summary judgment requires
us to determine whether the trial court abused its discretion or committed an
error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347
(Pa.Super. 2006).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it misapplies
the law or exercises its discretion in a manner lacking
reason. Similarly, the trial court abuses its discretion if it
does not follow legal procedure.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal
citations and quotation marks omitted). Our scope of review is plenary.
Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert.
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denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing
a trial court’s grant of summary judgment:
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there exists
a genuine issue of material fact. We view the record in the
light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must
be resolved against the moving party. Only where there is
no genuine issue as to any material fact and it is clear that
the moving party is entitled to a judgment as a matter of
law will summary judgment be entered. All doubts as to the
existence of a genuine issue of a material fact must be
resolved against the moving party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause of
action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or defense
which in a jury trial would require the issues to be submitted
to a jury. In other words, whenever there is no genuine
issue of any material fact as to a necessary element of the
cause of action or defense, which could be established by
additional discovery or expert report and the moving party
is entitled to judgment as a matter of law, summary
judgment is appropriate. Thus, a record that supports
summary judgment either (1) shows the material facts are
undisputed or (2) contains insufficient evidence of facts to
make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
On appeal, Appellant contends her deposition testimony established that
a dangerous condition existed on the floor of the restroom stall. Appellant
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acknowledges that Appellee’s employee, Ms. Collins, was present in the
restroom at the time of the accident, and Ms. Collins claimed that the hazard
did not exist minutes before the accident. Appellant insists, however, that Ms.
Collins’ statement “created a clear question of material fact regarding notice.
Had Ms. Collins simply looked in the stall as she claimed—and as was her job
duty—she would have seen the hazardous condition.” (Appellant’s Brief at
10). Appellant concludes the hazardous condition must have existed when
Ms. Collins conducted her inspection, Appellee failed to exercise reasonable
care under the circumstances, and this Court should reverse the order
granting Appellee’s summary judgment motion. We disagree.
“In trying to recover for an action in negligence, a party must prove four
elements.” Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286
(Pa.Super. 2005), appeal denied, 587 Pa. 731, 901 A.2d 499 (2006).
They are:
1. A duty or obligation recognized by law.
2. A breach of the duty.
3. Causal connection between the actor’s breach of the duty
and the resulting injury.
4. Actual loss or damage suffered by complainant.
Id. (emphasis omitted).
“The burden of proving the existence of negligence rests upon the party
who has asserted it.” Schmoyer by Schmoyer v. Mexico Forge, Inc., 649
A.2d 705, 707 (Pa.Super. 1994). “The mere fact that an accident has occurred
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does not entitle the injured person to a verdict. A plaintiff must show that the
defendant owed a duty of care, and that this duty was breached.” Rauch v.
Mike-Mayer, 783 A.2d 815, 824 n.8 (Pa.Super. 2001), appeal denied, 568
Pa. 634, 793 A.2d 909 (2002) (internal citations omitted).
The nature of the duty which is owed in any given situation
hinges primarily upon the relationship between the parties
at the time of the plaintiff’s injury. The standard of care
that a possessor of land owes to one who enters upon the
land depends upon whether the entrant is a trespasser, a
licensee or an invitee. … A business visitor is a person who
is invited to enter or remain on land for a purpose directly
or indirectly connected with business dealings with the
possessor of the land. … Applying section 343 of the
Restatement (Second) of Torts, this court has explained that
a party is subject to liability for physical harm caused to an
invitee only if:
he knows of or reasonably should have known of the
condition and the condition involves an unreasonable
risk of harm, he should expect that the invitee will not
realize it or will fail to protect themselves against it,
and the party fails to exercise reasonable care to
protect the invitees against the danger.
An invitee must prove either the proprietor of the land had
a hand in creating the harmful condition, or he had actual
or constructive notice of such condition.
Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719, 722
(Pa.Super. 1997), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997) (internal
citations omitted).
In determining whether a plaintiff has established actual or constructive
notice:
Pennsylvania courts have uniformly held that if the harmful
transitory condition is traceable to the possessor or his
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agent’s acts, (that is, a condition created by the possessor
or those under his authority), then the plaintiff need not
prove any notice in order to hold the possessor accountable
for the resulting harm. In a related context, where the
condition is one which the owner knows has frequently
recurred, the jury may properly find that the owner had
actual notice of the condition, thereby obviating additional
proof by the invitee that the owner had constructive notice
of it. Where, however, the evidence indicates that the
transitory condition is traceable to persons other than those
for whom the owner is, strictly speaking, ordinarily
accountable, the jury may not consider the owner’s ultimate
liability in the absence of other evidence which tends to
prove that the owner had actual notice of the condition or
that the condition existed for such a length of time that in
the exercise of reasonable care the owner should have
known of it.
Moultrey v. Great A & P Tea Co., 422 A.2d 593, 596 (Pa.Super. 1980)
(internal citations omitted). “What constitutes constructive notice must
depend on the circumstances of each case, but one of the most important
factors to be taken into consideration is the time elapsing between the origin
of the defect or hazardous condition and the accident.” Neve v. Insalaco’s,
771 A.2d 786, 791 (Pa.Super. 2001) (quoting Rogers v. Horn & Hardart
Baking Co., 127 A.2d 762, 764 (Pa.Super. 1956)).
Instantly, Appellee’s summary judgment motion included relevant
portions of the transcript from Appellant’s deposition. In her deposition
testimony, Appellant indicated someone else was leaving the restroom as she
entered it. (See Exhibit B of Summary Judgment Motion at 41). When
Appellant entered the stall, she looked down and “[s]aw debris, I saw a couple
wet spots.” (Id.) Appellant further described the hazard as “brown spots,”
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interspersed with “water spots.” (Id. at 58).
Significantly, regarding the time elapsing between the origin of the spill
and the accident, Appellant stated:
[COUNSEL:] Okay. Do you have any understanding
how the wet spots that you observed in the stall arrived on
the ground there?
[APPELLANT:] No.
[COUNSEL:] Do you have any understanding as
to how long they were in that spot before you fell?
[APPELLANT:] No.
(Id. at 56) (emphasis added). On this record, we agree with the trial court’s
determination that Appellant failed to establish Appellee’s constructive notice
of the hazard. See Estate of Swift, supra; Moultrey, supra. See also
Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1195 (Pa.Super. 2015)
(explaining store owner owes duty of care to patrons; however, no action is
necessary if store owner does not know about spill or spill did not exist long
enough to impute store owner’s knowledge of it).
Additionally, Appellee’s summary judgment motion included incident
reports and Ms. Collins’ witness statement. (See Summary Judgment Motion
at Appendix C). Ms. Collins stated she had checked the stalls for “wetness”
and paper towels approximately five minutes before Appellant entered the
restroom. (Id.) To the extent Appellant contends this statement
demonstrates a question of material fact regarding constructive notice, we
disagree with such a characterization. Ms. Collins’ statement does not even
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mention the “spots,” and such evidence cannot definitively establish how long
they might have been on the floor. See Neve, supra. Absent more, the
court did not abuse its discretion or commit an error of law by entering
summary judgment in favor of Appellee. See Mee, supra. Accordingly, we
affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/21
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