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A Grocery Store is Not Liable for a Transitory Spill

A court dismissed a plaintiff’s Complaint filed against ShopRite for a fall due to debris in the main walkway of ShopRite’s parking lot in Monroe County, Pennsylvania. Karten v. ShopRite, Inc., No. 4416 CV 2016, (C.P. Dec. 3, 2018). ShopRite’s summary judgment was granted and the case against it was dismissed. The court held that ShopRite had no actual or constructive notice of the condition to find liability as it was a transitory spill.

A possessor of land can be liable for a dangerous condition on its premises if it created the condition, knew of the condition or should have known of the condition by the exercise of reasonable care. Restatement (Second) of Torts §343. A transitory spill is one that was created only moments before causing harm. Therefore, a possessor of land may not be liable for a transitory spill that it did not create, have an opportunity to rectify, or warn invitees of the condition.

In Karten, the plaintiff had just left the ShopRite and was walking on the main walkway of its parking lot when she slipped and fell on what she described as, “dark, slippery and smelled of rotten banana.” The plaintiff was unable to state how the substance got on the ground, or how long it had been there. ShopRite moved for summary judgment arguing the condition was a transitory spill and it had neither actual nor constructive notice to warrant liability.

The plaintiff argued that ShopRite had actual notice of the condition, because it had received prior complaints regarding debris in the parking lot. The court disagreed. The court held that general knowledge of a similar condition is not akin to actual knowledge of a transitory spill.

The plaintiff then attempted to argue that ShopRite had constructive notice of the spill. The plaintiff was also unsuccessful in this argument. The court dismissed any of the plaintiff’s arguments on constructive notice. The court found that the plaintiff had no evidence of constructive notice and the argument was just manufactured in opposition to ShopRite’s motion.

Ultimately, the court granted ShopRite’s motion for summary judgment. The plaintiff was unable to identify sufficient evidence to find that ShopRite had actual or constructive notice of the transitory spill. The plaintiff failed to meet her burden and the Complaint was dismissed.

ShopRite was protected from liability, because the court held that the condition was transitory. The spill could have occurred only seconds before the plaintiff fell. Therefore, it would be unjust for ShopRite to be responsible for something it could not have had control over.

Lack of notice is a powerful defense in a slip and fall case. A possessor of land is not the ultimate insurer of any injury that occurs on its property. The law still requires that a possessor of land be aware of a potential dangerous condition, or should have been aware of it for it to be held liable. Therefore, a possessor of land may not be liable for damage caused by a transitory spill if there is no evidence that could prove how long the condition existed before causing harm. Therefore, proper questioning during discovery is necessary to determine whether a plaintiff is able to prove how long a dangerous condition existed, or if a possessor of land should have been aware of the condition by the exercise of reasonable care.

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A Commercial Truck Driver Who Causes An Accident While Using a Cell Phone May Be Liable For Punitive Damages

The use of a cell phone by a commercial truck driver at the time of a motor vehicle accident may subject the driver to punitive damages.  In Ehler v. Old Dominion Freight Line, No. 2018-00307 (C.P. Lebanon August 30, 2018), filed in the Court of Common Pleas, Lebanon County, Pennsylvania, a commercial truck driver was sued for causing a 64-car accident during a winter storm. The plaintiffs alleged that the truck driver was on his cell phone at the time of the accident.  The plaintiffs sought punitive damages as they alleged that the use of a cell phone by a commercial truck driver under severe weather conditions is reckless. The truck driver filed preliminary objections seeking to strike the allegations of recklessness thus eliminating the possibility of punitive damages. The court overruled the preliminary objections, thereby allowing the plaintiffs to continue to seek punitive damages pending further discovery.

Punitive damages are used to punish a defendant’s behavior and to deter such future conduct. When a plaintiff alleges that a defendant was negligent in causing damages to the plaintiff, the plaintiff is entitled to seek such compensation as lost wages, unpaid medical bills and pain and suffering.  A defendant must be found to have acted recklessly through outrageous or willful misconduct demonstrating an evil motive or reckless indifference to the rights of others in order to pursue punitive damages.  A plaintiff must allege specific facts that demonstrate this type of behavior in a complaint.  A defendant can challenge a plaintiff’s ability to seek punitive damages through preliminary objections.  Preliminary objections are used to strike portions of a plaintiff’s complaint prior to discovery to eliminate irrelevant or inappropriate allegations.

The defendant-truck driver sought to strike the claims for punitive damages by arguing that merely being on the phone while driving does not amount to reckless conduct. However, Pennsylvania’s Distracted Driving Law prohibits commercial truck drivers from using a cell phone while driving except for contacting emergency personnel.  Additionally, it is alleged that snow produced “white-out” conditions at the time of the accident. The court held that under these circumstances it was even more important for a truck driver to take extra precautions while driving in severe weather conditions.

However, since the driver’s estate is proceeding in the defense of this lawsuit, it is unknown who the driver was on the phone with at the time of the accident and even if there was any actual connection between being on the phone and the happening of the accident. Even with these unknown facts, the court held the allegations were specific enough to warrant keeping the possibility of punitive damages alive pending further discovery. The court did hint that these allegations could be stricken in the future if facts are uncovered during discovery that do not support them.

In a time when distracted driving is a major safety concern to anyone on the roads, it is important to thoroughly analyze and scrutinize a plaintiff’s complaint to determine the viability of a plaintiff’s allegations of reckless conduct that could open the door for punitive damages.  Punitive damages can lead to increased jury verdicts as it allows a jury to not only compensate a plaintiff, but to punish a defendant and deter such future behavior.  Therefore, preliminary objections must be strongly considered to challenge these types of allegations during the early stages of litigation.