In a recent decision in the case of Zangenberg v. Weis Markets, Inc., et al., 10500 Civil 2012 (CCP Monroe Counrty, April 1, 2015), Judge Stephen M. Higgins granted Defendant, Weis Markets’ Motion for Summary Judgment on the grounds that Plaintiff had failed to set forth sufficient evidence that Weis was on notice of the slippery condition that allegedly caused Plaintiff’s fall.
Plaintiff alleged that her fall occurred due to a slippery condition caused by an excessive buildup of wax on the floor of the supermarket. In support of this theory, Plaintiff relied upon an invoice indicating that the supermarket floor was waxed sometime during the week of her fall. Plaintiff further relied upon the testimony of her daughter who stated that she saw a black skid mark on the floor after her mother’s fall. However, Plaintiff’s daughter was not present at the time of the fall, nor did she closely examine the area of the skid mark to determine whether there was wax on the floor. Plaintiff testified that the floor was very slippery but she did not notice any foreign substance on the floor either before or after her fall. She further stated that she did not notice anything on her body or clothing after the fall. A Weis employee testified that she examined the area of the fall after it occurred and found nothing.
In their Motion for Summary Judgment, Weis argued that Plaintiff failed to set forth evidence showing that her fall was caused by an excessive buildup of wax and, as such, Plaintiff had not shown that Defendant was on constructive notice of such a condition if it existed.
The most common method of proving constructive notice is by showing that the alleged defect existed for a prolonged period of time. In order to prove constructive notice, without evidence that the defective condition existed for a prolonged period of time, a Plaintiff must show “(1) the defect is of a type with an inherently sustained duration, as opposed to a transitory spill which could have occurred an instant before the accident; and (2) a witness saw the defect immediately before or after the accident.” Neve v. Insalaco’s, 771 A.2d 786, 791 (Pa. Super. 2001).
Based upon the evidence produced by Plaintiff, the Court determined that Plaintiff failed to show that Weis had constructive notice of the allegedly slippery condition that caused the subject fall. Plaintiff failed to set forth any evidence regarding the duration of the slippery condition nor did any witness testify that they saw the alleged wax buildup either before or after the fall.
This decision speaks to the importance of identifying the specific defect in a slip and fall case. Often times I take calls from potential clients who tell me that they slipped and fell on an unknown substance or that the floor was extremely slippery but they don’t know why. In these types of cases it is extremely important to conduct an immediate and thorough investigation in an effort to determine the precise cause of the fall, or to uncover evidence serving to establish the duration of the defect. Photographs, video footage and/or witness statements can all prove invaluable for this purpose. Without this evidence, many of these cases will be dismissed at the summary judgment stage.
If you or someone you know is injured in a slip and fall incident it is recommended that you consult with experienced legal counsel to discuss your options. For more information about what you should do if you are involved in situation like this, check out this recent blog.