Opinion
Civil Action No. 03-6837.
September 22, 2004
MEMORANDUM
This case arises from an incident in which plaintiff Angelina Risoldi tripped and fell on a doormat while entering the Philadelphia Park racetrack. In their complaint, plaintiffs Angelina and Othello Risoldi bring claims of negligence against the following parties: 1) Greenwood Racing, Inc.; 2) Bensalem Racing Association, Inc.; 3) Keystone Turf Club, Inc. (these three defendants will be referred to collectively as "Greenwood Racing"); 4) UNICCO Service Company ("UNICCO"); and 5) Cintas Corporation ("Cintas"). Though not explicitly clear in the pleadings, it is apparent that Greenwood Racing, Bensalem Racing and Keystone collectively own and operate Philadelphia Park racetrack. These three defendants have submitted a motion for summary judgment (Doc. No. 12) jointly.
At the time of the incident giving rise to Plaintiffs' claims UNICCO was under contract with Greenwood Racing to provide janitorial services at Philadelphia Park. UNICCO has filed a separate motion for summary judgment (Doc. No. 11). For the reasons that follow, the Court will grant both motions for summary judgment.
According to the complaint, Cintas is the manufacturer of the mat on which the plaintiff allegedly slipped. Nothing has been filed by Cintas and no appearance has been entered on its behalf. A default judgment for failure to appear, plead or otherwise defend was entered against Cintas on September 13, 2004.
Plaintiff Angelina Risoldi incurred $133,000 in medical expenses relating to the treatment of injuries caused by her fall. She is personally responsible for approximately $44,000 of those expenses. She also seeks to recover damages for pain and suffering. Additionally, plaintiff Othello Risoldi claims loss of consort, companionship, society, affection, services and support of his wife as a result of the injuries suffered.
Though not before the Court on this motion, Greenwood Racing defendants and UNICCO have both filed cross claims against each other for indemnification. Greenwood Racing filed an additional cross claim against Cintas for negligence.
The Court heard oral argument on September 13, 2004.
I. Background
For the purposes of this motion, the relevant undisputed facts are as follows. On September 8, 2003 plaintiff Angelina Risoldi was at Philadelphia Park racetrack with her husband, Othello Risoldi, her daughter, Mary Roberts, and son-in-law, Leo Roberts. While entering the racetrack through the main entrance, Mrs. Risoldi, who was 88 years old at the time, tripped and fell. As a result of the fall Mrs. Risoldi sustained a fractured right hip. The main entrance to the racetrack consists of three pairs of doors, followed by a vestibule, and then a second set of three pairs of doors. On the ground in the doorways are doormats. Plaintiff claims that one of these doormats caused her fall.
It is undisputed that neither Mr. Risoldi nor Mr. Roberts witnessed the fall. Mr. Risoldi entered the building in front of Mrs. Risoldi, and only observed the scene immediately following the fall. Mr. Roberts was not in the vicinity at the time of the fall. Mrs. Risoldi admits that she did not see the doormat prior to her fall, and therefore did not observe the condition of the doormat prior to the fall. Mrs. Roberts observed the fall but is not certain as to the condition of the doormat prior to the fall. Mrs. Roberts observed that after the fall the right side of the doormat was "turned up." (M. Roberts depo. at 19.) Mrs. Roberts did not see Mrs. Risoldi's foot come into contact with the mat. Mrs. Roberts concedes that it may, in fact, have been Plaintiff's foot that caused the doormat to become "turned up." (M. Roberts depo. at 19.)
Plaintiffs allege that the fall and subsequent injuries were directly and proximately caused by the defendants' negligent care of the business premises and negligent failure to warn of dangerous conditions on the premises.
II. Jurisdiction and Legal Standard
This Court has diversity subject matter jurisdiction over this matter under 28 U.S.C. § 1332(a), as all the defendants are residents of different states than the plaintiff and the amount in controversy exceeds $75,000. Here the plaintiffs claim approximately $44,000 in compensatory damages, in addition to unspecified damages for pain and suffering. Plaintiffs also seek unspecified damages for loss of consort, companionship, society, affection, services and support. In the aggregate it is more than likely that the total damages sought by the plaintiffs will exceed $75,000. The defendants do not object to this Court's exercise of jurisdiction in this matter.
A federal court exercising diversity jurisdiction must apply the substantive law of the state in which it sits. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Therefore, this Court should apply Pennsylvania common law as it applies to negligence.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Under Rule 56, the Court must view the evidence presented on these motions in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.
III. Discussion
This is a classic "slip and fall" case. Plaintiff was a business invitee on the premises. See Palange v. City of Philadelphia Law Department, 640 A.2d 1305, 1308 (Pa.Super. 1994) (defining a business invitee as 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). The duty owed to her by the defendants is described in the Restatement (Second) of Torts § 343, which 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
(a) knows or by the existence 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."
This section of the Restatement was adopted by the Pennsylvania Supreme Court in Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983). To establish liability under this standard, "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 Hospital of Philadelphia, 690 A.2d 719, 723 (Pa.Super. 1997) (quoting Moultrey v. Great A P Tea Co., 422 A.2d 593 (Pa.Super. 1980).
At oral argument, the Court suggested two possible theories for the plaintiffs to pursue. The first was whether the defendants were responsible for some defect related to the doormat. Plaintiff's counsel admitted he had no facts other than those stated in the summary judgment papers and summarized above. Because the plaintiffs presented no evidence that the defendants actually caused the allegedly harmful condition that gave rise to Mrs. Risoldi's fall, plaintiffs must proceed on the theory that the defendants knew or should have known of the harmful condition.
Plaintiffs do not claim that the defendants had actual notice of a dangerous condition, but rather that they should have known of the allegedly dangerous condition — that they had constructive notice of such a condition. Constructive notice is established where the "condition existed for such a length of time that in the exercise of reasonable care the owner should have known of it." Moultrey, 422 A.2d at 596. Even making every inference in a light most favorable to the plaintiffs, there is no evidence by which a jury might conclude that there was a dangerous condition. Even if there was evidence of a dangerous condition, there is no evidence that the defendants had constructive notice of it. As stated above, witnesses were deposed and none of them could testify as to the condition of the doormat prior to Mrs. Risoldi's fall.
Moreover, neither Mrs. Risoldi nor Mrs. Roberts (the only witness to the actual fall) provided any testimony as to how or why Mrs. Risoldi fell, or how her foot came into contact with the doormat. Mrs. Risoldi surmised that the doormat caused the fall, but this deposition testimony was only conjecture or opinion, which is of no weight in deciding these motions. "Although the non-moving party must be given the benefit of all reasonable inferences, that party need not be given the benefit of inferences not supported by the record or of mere speculation."Myers v. Penn Traffic Co., 606 A.2d 926, 930 (Pa.Super. 1992).See also Galullo v. Federal Express Corp., 937 F. Supp. 392, 398-99 (E.D. Pa. 1996) ("What caused her to fall could only be a guess, and that is not sufficient to take a case to the jury." (quoting Watkins v. Sharon Aerie No. 327 Fraternal Order of Eagles, 223 A.2d 742, 745 (Pa. 1966)); Cuthbert v. Philadelphia, 209 A.2d 261, 264 (Pa. 1965) ("A jury may not be permitted to reach its verdict on the basis of speculation or conjecture; there must be evidence upon which its conclusion may be logically based."). At oral argument, plaintiffs' counsel admitted he had no case law to support this theory on these facts.
As to the second theory, that defendants failed to take reasonable measures, plaintiffs make two other arguments. First, plaintiffs argue that Greenwood Racing failed to adopt certain safeguards intended to protect people entering the racetrack. "No guards or greeters were present to direct the flow of traffic at the entrance. No railings were available to assist persons entering the racetrack. No warning signs were posted." Defendant's Memorandum Opposing Summary Judgment, Doc. No. 19, at 5 . The plaintiffs do not direct the Court to any case law to support the implicit contention that such measures are necessary to satisfy the duty of care owed to business invitees. Additionally, the absence of such precautionary measures is not disputed by the defendants and therefore does not seem to pose a factual question for a jury. Rather, the lack of such safeguards relates more to the appropriate standard of care.
The second responsive argument made by the plaintiffs is that "UNICCO's failure to maintain the common areas during hours of operation creates a material factual dispute needed to be resolved by a jury." Id. at 6. Plaintiffs argue that UNICCO did not maintain the premises during business hours and therefore breached its contractual duty to "protect the invitees from harm." Id. at 8. Plaintiffs are asserting an alternative legal theory of liability rather than identifying additional issues of material fact, and have no facts or law requiring a trial to determine whether UNICCO, by virtue of its contractual relationship with the Greenwood Racing defendants or otherwise, breached any duty to the plaintiffs.
IV. Conclusion
The case law is clear that a mere accident on business premises does not automatically create a colorable negligence claim, and plaintiffs have failed to demonstrate any genuine issues of fact for trial. Therefore the Court must grant defendants' motions for summary judgment.
An appropriate Order follows.
ORDER
AND NOW, this 22nd day of September, 2004, it is hereby ORDERED that:1. Defendants' Motions for Summary Judgment (Doc. No. 11 and Doc. No. 12) be GRANTED and judgment is entered in favor of Defendants Greenwood Racing, Inc., Bensalem Racing Association, Inc., Keystone Turf Club, Inc. and UNICCO Service Company, and against Plaintiffs.