From a plaintiff’s perspective, one of the most difficult parts of a premises liability case is proving that the defendant had notice of the dangerous condition that caused her injuries. Generally, the plaintiff must prove that the defendant knew or should have known of the dangerous condition. Below, I provide portions of my response brief to a motion for summary judgment in a trip and fall case. The defendant argued that it was entitled to judgment in its favor because we couldn’t prove that it had notice of the dangerous condition. I have omitted identifying information, facts, analysis, and conclusions, so that all that remains is the law.
- Because Plaintiff was a business invitee, Defendant owed her the highest standard of care owed to any entrant upon its land.
The standard of care Defendant owes to Plaintiff depends on whether Plaintiff was a trespassor, licensee, or invitee when she entered and remained on Defendant’s property. Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). Because Plaintiff was on Defendant’s property for a business-related purpose, she is a business invitee. Emge v. Hogosky, 712 A.2d 315, 317 (Pa. 1998). Defendant concedes that Plaintiff was a business invitee. (Defendant’s Brief at pg. 9).
The duty of protection that the landowner owes to a business invitee is the highest duty owed to any entrant upon land. Treadway v. Ebert Motor Company, 436 A.2d 994, 999 (Pa.Super. 1981). “[T]he landowner is under an affirmative duty to protect the business visitor not only against dangers which he knows, but also against those which with reasonable care he might discover. The business visitor enters landowner’s premises with implied assurance of preparation and reasonable care for his protection and safety while he is there.” Id.
The landowner has a duty to conduct reasonable inspections of the premises, discover dangerous conditions, and provide warnings or protection against those conditions. Filippova v. Community Bank and Trust Co. and Comm. Bancorp., Inc., 2011 Pa. Dist. & Cnty. Dec. LEXIS 298, 7 (Lackawanna 2011) (citing Greco v. 7-Up Bottling Co. of Pittsburgh, 165 A.2d 5 (Pa. 1960), Lonsdale v. Joseph Horne Co., 587 A.2d 810, 814 (Pa.Super. 1990), and Crotty v. Reading Industries, Inc., 345 A.2d 259, 263 (Pa.Super. 1975)). “A visual inspection has long been required for the protection of business visitors; [citations omitted]; and indeed, the duty may go beyond a mere visual inspection.” Crotty, 345 A.2d at 263.
In the present case, Defendant is liable to Plaintiff under Pennsylvania common law and the Restatement (Second) of Torts Sections 343 and 344. In order to recover, Plaintiff must prove that Defendant had actual or constructive notice of the dangerous condition; that it had knowledge of prior repeated occurrences of the dangerous condition; or that the dangerous condition was traceable to or created by Defendant. Lanni v. Pennsylvania R. Co., 88 A.2d 887, 889 (Pa. 1952); Moultrey v. Great A & P Tea Co., 422 A.2d 593, 596 (Pa.Super. 1980); Vazquez v. Wal-Mart, 2010 U.S. Dist. LEXIS 82445, 12 (ED. Pa. 2010); Farina v. Miggys Co. Five & Six, 2010 U.S. Dist. LEXIS 76786 (M.D. Pa. 2010).
. . .
- Defendant had constructive notice of the condition upon which Plaintiff tripped.
Whether a defendant has constructive notice of a dangerous condition is a fact specific inquiry. Katz v. John Wanamaker Philadelphia, Inc., 112 A.2d 65, 67 (Pa. 1955). Notice of a dangerous condition can be proven through circumstantial evidence. Moultrey v. Great A & P Tea Co., 422 A.2d 593, 594 (Pa.Super. 1980). Circumstantial evidence that a dangerous condition was on a floor for a substantial period of time is sufficient to show constructive notice. Filippova v. Community Bank and Trust Co. and Comm. Bancorp., Inc., 2011 Pa. Dist. & Cnty. Dec. LEXIS 298, 7 (Lackawanna 2011).
The characteristics of the dangerous condition itself can be sufficient proof that the condition was present for a substantial period of time. In Mack v. Pittsburgh Railways Company, the court found that a railroad had constructive notice of a grease spot due to testimony of its dustiness and the presence of footprints through it. 93 A. 618, 619 (Pa. 1915). In Baynes v. The Home Depot U.S.A., Inc., the court noted that constructive notice can be proven through introduction of “evidence of the amount of grime or stickiness of a spill, which may demonstrate how long it has remained on the floor.” 2011 U.S. Dist. LEXIS 62685, 15 (E.D. Pa. 2011).
The extent to which a court will find sufficient circumstantial proof of constructive notice is demonstrated by Rumsey v. Great Atl. & Pac. Tea Co., 408 F.2d 89 (3rd Cir. 1969). In Rumsey, the plaintiff slipped and fell within a store. Id. at 90. In the area of her fall, she found small pieces of discolored lettuce. Id. Plaintiff alleged that this lettuce caused her fall. Id. At issue on appeal was whether the defendant could be charged with constructive notice of the hazardous condition. Id. Citing Smith v. Bell Telephone Co., 153 A.2d 477 (Pa. 1959) the court stated, “[A] plaintiff’s prima facie case need only be such that the jury, by drawing logical inferences from the evidence in the light of their own knowledge and experience, can reasonably reach the conclusion sought by the plaintiff, even though a contrary conclusion could rationally be based on the same evidence.” Id. at 91. The court found that the discoloration and fragmentation of the lettuce was sufficient proof that it had been on the floor for some time, and therefore a jury could reasonably find that the store had constructive notice of its presence. Rumsey, 408 F.2d at 91 (citing Mack v. Pittsburgh Railways Company, 93 A. 618, (Pa. 1915)).
. . .
III. Plaintiff satisfies the notice requirement because Defendant had notice of recurring spills and dirty conditions in the area of the fall.
In its Motion for Summary Judgment, Defendant does not address its liability under Restatement (Second) of Torts §344. This is not surprising, given Defendant’s clear liability under that section.
Section 344 provides:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (1) discover that such acts are being done or are likely to be done, or (b) give warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
Section 344 is the law in Pennsylvania. See Moran v. Valley Forge Drive-In Theater, Inc., 246 A.2d 875, 878 (Pa. 1968) and Miller v. Peter J. Schmitt & Co., 592 A.2d 1324 (Pa.Super 1991). Comment f to §344 provides that if the place or character of a land possessor’s “business, or his past experience, is such that he should reasonably anticipate careless . . . conduct on the part of third persons” . . . he may be under a duty to protect against dangers caused by the conduct and provide a sufficient number of servants to protect against them. Id. (emphasis added).
Under Section 344, it is not necessary for a Plaintiff to show that Defendant had actual notice of the precise condition that caused harm. Moran, 246 A.2d at 878-879 (Pa. 1968). It is sufficient for Plaintiff to show that Defendant “had notice, either actual or constructive, of prior acts committed by third persons within their premises which might cause injuries to patrons.” Id. (emphasis added).
Further, under Pennsylvania common law, the notice requirement is satisfied if the landowner has knowledge of a recurring dangerous condition. See Markman v. Fred P. Bell Stores Co., 132 A. 178 (Pa. 1926) and Farina v. Miggys Co. Five & Six, 2010 U.S. Dist. LEXIS 76786 (M.D. Pa. 2010). Constructive notice of a dangerous condition can be shown through knowledge that a hazardous condition has occurred in the past. The present case is similar to Evans v. Wal-Mart Stores, Inc., 2007 U.S. Dist. LEXIS 66675 (M.D. Pa. 2007). In Evans, the plaintiff slipped on about ten grapes scattered on the floor of a store. Defendant moved for summary judgment on the issue of notice. Id. at 14. As in this case, the defendant argued that the plaintiff had not produced evidence of the length of time that the dangerous condition remained on the floor. Id. at 16-17. The court stated:
We agree with Plaintiffs that they are not required to prove the exact manner in which the grapes were placed on the floor. A jury may conclude in this case that the scattered grapes on Defendant’s floor, about ten (10) in number, were traceable to the Defendant’s employees’ conduct. Significantly, as Plaintiffs state, they have produced evidence that Defendant was aware that grapes could accumulate on the floor in front of the display, and yet failed to use protective mats to shield its customers from slipping on them. This evidence could clearly be considered by a jury to have placed Defendant on constructive notice that grapes had previously fallen to the floor in the produce section near their display. The Plaintiffs also offered evidence that despite Defendant’s knowledge that grapes fell on the floor in the produce section and that the produce display drips water, it did not install rubber mats to protect its customers from slipping on them.
Id. at 18 (citations to the record removed).
. . .
- Plaintiff satisfies the notice requirement because Defendant helped to create the dangerous condition.
Under Restatement (Second) of Torts §344, the notice requirement is satisfied if the Defendant helped to create a dangerous condition. Vazquez v. Wal-Mart, 2010 U.S. Dist. Lexis 82445 (ED. Pa. 2010) (citing Moultrey v. Great Atl. & Pac. Tea Co., 422 A.2d 593, 598 (Pa.Super. 1980). In Vazquez, the plaintiff slipped on a puddle of bubble solution on the floor of a Wal-Mart store. Id. at 2. The solution was spilled by a child customer who picked the solution up from a store display. Id. at 2-3. The store designed this display with the knowledge that customers would interact with it. Id. The defendant moved for summary judgment on the issue of liability, arguing that it had no notice of the substance on the floor. Id. at 4. The court found that, because Wal-Mart designed the area so that customers would be picking up merchandise, including liquids, spills were foreseeable and §344 applied to the case. Id. at 12-14.
 Section 343 provides: A possessor of land is subject to liability for physical harm if caused to his invitees by a condition of the land if, but only if, he (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.
 Section 344 provides: A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (1) discover that such acts are being done or are likely to be done, or (b) give warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
 See also Farina v. Miggys Corp. Five & Six, 2010 U.S. Dist. LEXIS 76786, 23 (M.D. Pa. 2010) (stating “Under these particular facts, this court believes that ‘sticky’ and ‘gritty’ characteristics and appearance of ‘grime’ in this hazard, among other characteristics, are sufficient evidence of constructive notice to defeat defendant’s motion for summary judgment.”)
 See also Miller v. Peter J. Schmitt & Co., 592 A.2d 1324 (Pa.Super. 1991) (applying §344 to a situation in which an independent contractor spilled ice on the landowner’s floor, causing the plaintiff to fall) and McMillan v. Mountain Laurel Racing, Inc., 367 A.2d 1106 (Pa.Super. 1975) (striking a nonsuit and applying §344, among other Restatement sections, in a situation in which patrons at a race track left trash and refreshments on the floor, causing Plaintiff’s fall).