Nicholas Malfitano Feb. 17, 2016, 1:38pm


PHILADELPHIA – A motion for summary judgment has been granted for Sears Roebuck, Inc. in the U.S. District Court for the Eastern District of Pennsylvania, in a slip-and-fall negligence suit filed against the department store company.

Judge Richard Barclay Surrick approved Sears’ motion on the grounds that no evidence of negligence had been found in the suit brought by Bettie Daniels.

Daniels – then 75 years old – went to a Sears retail store in Philadelphia to purchase items of clothing on Feb. 21, 2014. After shopping for 30 minutes, Daniels walked into a women’s fitting room with three items, which she hung on a rack. As Daniels was removing her own clothes, she fell to the fitting room’s floor and injured her left arm, shoulder, and hip as a result, according to the suit.

Daniels testified that she did not observe anything on the floor of the fitting room before or after she fell.

Daniels reported what happened to several Sears employees and those same employees did not observe anything on the fitting room floor, though photographs of the scene were taken. After Daniels completed her purchases and left the store, she felt pain in her arm and sought medical attention. Per the lawsuit, Daniels averred she later developed hip and shoulder pain.

In August, Daniels filed a negligence-based premises liability suit against Sears in the Philadelphia County Court of Common Pleas, which the defense later removed to the U.S. District Court for the Eastern District of Pennsylvania.

According to Surrick, it was incumbent upon Daniels in her negligence suit to prove “(1) The existence of a duty or obligation recognized by law; (2) A breach of the duty; (3) Causal connection between the breach of duty and the resulting injury; and (4) Actual loss or damage.”

On Jan. 18, the defendants filed a motion for summary judgment, claiming no evidence of a hazardous condition existed in the store which could cause Daniels to fall. Daniels responded by saying the floor was “unusually shiny," which was proof of such a hazardous condition.

Yet in Daniels’s deposition, she testified she did not see any “foreign substances” on the floor of the Sears fitting room, nor knew what caused her to fall.

“Plaintiff argues that this testimony is not fatal to her lawsuit. She asserts that her testimony regarding the floor’s shininess creates an issue of material fact that must be resolved by a jury,” Surrick said.

“The evidence – even when viewed in a light most favorable to plaintiff – does not establish the existence of a hazardous condition,” Surrick added. “The parties agree that no one witnessed plaintiff’s fall. Plaintiff has not herself established that the floor was in a hazardous condition, and she cannot identify any third party who observed that the fitting room floor was in a hazardous condition before or after the incident. Plaintiff testified only that the floor was shiny. She did not testify that the floor was slippery, and she did not testify as to what caused her to fall.”

Surrick referred to Daniels’ assertion that a jury could infer the “shiny” floor counted as a hazardous condition as an inference amounting to nothing more than “sheer speculation”, and granted the motion for summary judgment from Sears.

“Since the evidentiary record in this matter does not contain any evidence that would support a finding of negligence, summary judgment in favor of defendant is required,” Surrick said. “For these reasons, defendant’s motion for summary judgment will be granted.”

The plaintiff is represented by Leonard V. Fodera and Albert J. Brooks Jr. of Fodera & Long, in Philadelphia.

The defendant is represented by Robert L. Sanzo of Litchfield Cavo, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-04821

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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