Opinion
J-A06037-16 No. 1245 MDA 2015
06-16-2016
VERONICA HONIS Appellant v. GIANT FOOD STORES, INC. Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered August 31, 2015
In the Court of Common Pleas of Luzerne County
Civil Division at No: 9603-2012 BEFORE: LAZARUS, STABILE, and DUBOW, JJ. MEMORANDUM BY STABILE, J.:
Appellant, Veronica Honis, appeals from the judgment entered on August 31, 2015, following denial of her motion to remove the nonsuit entered in her premises liability case against Appellee, Giant Food Stores ("Giant"). Appellant argues there was sufficient evidence for a jury to conclude Giant created a dangerous condition that caused her to fall and/or failed to conduct a reasonable inspection that would have discovered the dangerous condition. We disagree and, therefore, affirm.
Although Appellant suggests she is appealing from the trial court's July 1, 2015 order, the appeal properly lies from judgment entered on the order denying removal of the nonsuit. See , e.g., Harvey v. Rouse Chamberlin , Ltd.,901 A.2d 523, 524 n. 1 (Pa. Super. 2006). We note that this case proceeded to trial on February 3, 2015. At the close of Appellant's case, Giant moved for a compulsory nonsuit, which the trial court granted after hearing argument on the motion. By order dated July 1, 2015, the trial court denied Appellant's post-trial motion seeking removal of the nonsuit. Appellant filed a notice of appeal on July 21, 2105. By order of this Court dated August 27, 2015, we quashed the appeal for failure to enter final judgment on the July 1 order. By subsequent order entered September 3, this Court vacated the August 27 order and reinstated the appeal in light of Appellant's motion for reconsideration accompanied by evidence that judgment was entered on the order on August 31, 2015.
In its July 1, 2015 memorandum opinion, the trial court aptly summarized the evidence Appellant presented in her case-in-chief at the jury trial held on February 3, 2015. Trial Court Opinion ("T.C.O."), 7/1/15, at 3-6. We adopt the trial court's summary as our own and incorporate it herein by reference in this Memorandum. Briefly, Appellant and her husband testified that they went to the Giant on Locust Street in Hazelton on June 23, 2010. When they were in the checkout aisle, they realized they forgot to get ice cream. While her husband was bagging their groceries, Appellant went to an end cap display where the on-sale ice cream was located. She returned to the checkout aisle and, as she placed the ice cream on the conveyor, she stepped on a small bottle of Red Bull and fell, causing injuries to various parts of her body. Neither she nor her husband observed the bottle in the aisle before Appellant fell.
As part of her case-in-chief, Appellant called a Giant service associate to testify as on cross-examination. The associate, who did not witness the incident, explained the "clean sweep" procedure by which she and other employees would survey the store for hazards. She explained that she would use a gun to swipe "tags" in the aisles, indicating the aisle was inspected. While there were no tags in the individual checkout aisles, those aisles were inspected as part of the "front end" inspection. The employee would swipe a tag in the front end indicating the aisles and other front end areas were checked for hazards. The associate also explained that there were small refrigerators placed in front of the checkout aisles and that items were stocked in and on them. However, as the trial court observed, "[t]here was no testimony offered that the Red Bull was one of the items in the refrigerator or on display." T.C.O., 7/1/15, at 6.
Following the grant of nonsuit, Appellant filed a motion seeking removal of the nonsuit. The trial court denied the motion on July 1, 2015. Appellant filed an appeal to this Court and filed a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant presents one issue for our consideration, which fairly embodies the errors alleged in her Rule 1925(b) statement.
A. Did the learned trial judge err in granting the motion for compulsory nonsuit of [Giant] by reason that, there existed sufficient evidence from which the jury could have reasonably concluded that [Giant] created the dangerous condition that caused [Appellant's] injuries and/or that, [Giant] failed to conduct a reasonable inspection of the premises that would have discovered the dangerous condition?Appellant's Brief at 4.
We begin by setting forth our standard of review.
Our standard of review is well-established: "A nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the
cause of action had been established." Brinich v. Jencka ,757 A.2d 388, 402 (Pa. Super. 2000), appeal denied, 565 Pa. 634, 771 A.2d 1276 (2001) (citation and internal quotation marks omitted). Furthermore, all conflicts in the evidence must be resolved in the plaintiff's favor. See Gigus v. Giles & Ransome , Inc.,868 A.2d 459, 461 (Pa. Super. 2005), appeal denied, [895 A.2d 550 (Pa. 2006)]. In reviewing the evidence presented we must keep in mind that a jury may not be permitted to reach a verdict based on mere conjecture or speculation. See Brinich ,757 A.2d at 402. We will reverse only if the trial court abused its discretion or made an error of law. See Weiner v. Fisher ,871 A.2d 1283, 1285 (Pa. Super. 2005).Harvey v. Rouse Chamberlin , Ltd.,901 A.2d 523, 526 (Pa. Super. 2006).
In its memorandum opinion, the trial court examined Pennsylvania law applicable to premises liability cases and acknowledged that Pennsylvania has adopted the Restatement (Second) of Torts § 343. Section 343 (Dangerous Conditions Known to or Discoverable by Possessor) provides:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
Restatement (Second) Torts § 343. The trial court proceeded to examine case law applying § 343 and reviewed the trial testimony to ascertain whether Appellant presented evidence tending to prove that Giant deviated from the duty of reasonable care under the circumstances existing in Appellant's case. The trial court also reviewed and distinguished cases upon which Appellant relied. Ultimately, the trial court determined that Appellant failed to present evidence proving that Giant deviated from its duty of reasonable care.(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
We find the trial court's analysis is sound and its conclusions are properly based on appropriate and relevant authority. As the trial court's analysis confirms, Appellant failed to present evidence that Giant either created a dangerous condition that caused Appellant to fall or failed to conduct a reasonable inspection of its premises. We find no abuse of discretion or error of law in the trial court's conclusion. Therefore, we shall not disturb it.
We adopt the entirety of the trial court's July 1, 2015 opinion as our own and incorporate it herein by reference as it fully set forth. In the event of further proceedings, the parties shall attach a copy of the opinion to any filings.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/16/2016
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