Recently, in Livshitz v. Designer Brands, Inc., No. 23-3082, 2025 WL 80259 (3d Cir. Jan. 13, 2025), the Honorable John F. Murphy of the Third Circuit affirmed the United States District Court for the Eastern District of Pennsylvania’s grant of summary judgment in favor of defendant, Designer Shoe Warehouse and its parent company, Designer Brands, Inc. (collectively, “DSW”), because plaintiff failed to produce or identify any evidence that DSW had constructive notice of the allegedly dangerous condition on the premises.
The appeal stemmed from a negligence claim brought against DSW after plaintiff slipped and fell on an allegedly orderless substance on the floor of a DSW bathroom. DSW filed for summary judgment, asserting that the negligence claim failed as a matter of law because plaintiff failed to provide any evidence that DSW had constructive notice of the substance on the bathroom floor. In granting the motion, the District Court reasoned that, while plaintiff’s allegations that DSW’s failure to abide by their own cleaning protocols for the store bathrooms may be evidence for breach of a duty, it was not relevant for establishing that a duty existed based on constructive notice. Indeed, the District Court explained that, “[u]nder Pennsylvania law, a business invitee suing a property owner for negligence ‘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.” Est. of Swift v. Ne. Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super. Ct. 1997).
The issue of constructive notice can be established via circumstantial evidence, such as the nature of defect, the location of the defect the premises, and/or a demonstration that the condition had existed for such a length of time that the storeowner, in the exercise of ordinary care, should have been aware of the condition. Felix v. GMS, Zallie Holdings, Inc., 501 F. App’x 131, 135 (3d Cir. 2012). In fact, the District Court specifically noted that “Pennsylvania courts often treat a plaintiff’s failure to provide evidence with respect to the timing of the dangerous condition as dispositive because ‘[a] jury is not permitted … to speculate or guess; conjecture, guess or suspicion do not amount to proof’.” McDowell v. Moran Foods, LLC, 680 F. App’x 72, 75 (3d Cir. 2017) (quoting Lanni v. Pa. R.R. Co., 88 A.2d 887, 889 (Pa. 1952)). Based on the foregoing case law, the District Court reasoned that, even if DSW failed to inspect the bathroom as is required by the company’s cleaning protocols, the jury would still be required to speculate as to the length of time that the dangerous condition existed. Accordingly, plaintiff failed to present evidence that would prevent a jury from speculating as to whether DSW had constructive notice of the allegedly dangerous condition on the bathroom floor.
On appeal, plaintiff argued that the District Court’s grant of summary judgment was improper because there was a disputed question of material fact as to whether DSW acted reasonably when it failed to discover the allegedly dangerous condition on the floor. The Third Circuit rejected plaintiff’s argument, explaining that, even if a question of fact existed as to whether DSW exercised reasonable care in the discovery of the dangerous condition, it was immaterial because she had failed to produce or identify evidence that DSW had a duty to protect her from the alleged dangerous condition in the first place. The Third Circuit reiterated the basic principles of premises liability under Pennsylvania law and determined that, because plaintiff “failed to produce or identify evidence that ‘the dangerous condition [was] apparent upon reasonable inspection,’ the care that DSW exercised to discover it is irrelevant.” Id. at *1. Given that no evidence of notice was presented, the Third Circuit affirmed the District Court’s grant of summary judgment.
Furthermore, in a footnote, the Third Circuit Court briefly addressed plaintiff’s argument that the lack of evidence of constructive notice did not otherwise preclude her from defeating DSW’s motion for summary judgment. In support, plaintiff had cited Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1196-97 (Pa. Super. Ct. 2015), where the Pennsylvania Superior Court concluded that, even with without actual or constructive notice, there was a dispute as to whether the appellees acted affirmatively to inspect the premises to ensure the invitees’ safety, and this question precluded summary judgment in that matter. However, the Third Circuit determined that Rodriguez was inapplicable because it relied on the Restatement (Second) of Torts, which does not have a notice requirement. The Third Circuit explained that the requirement of notice is well-established in Pennsylvania common law and, to the extent that the Restatement does not incorporate the notice requirement, the Pennsylvania Supreme Court in Com., Dep’t of Transp. v. Patton, 686 A.2d 1302, 1305 (Pa. 1997), has concluded that the Restatement should be interpreted as requiring notice and, if that is not possible, then it does not comport with Pennsylvania law.
The Livshitz v. Designer Brands, Inc. decision can be found here.
For additional questions, please contact Kylie A. Griffith, Esq. and/or Conrad James Benedetto, Esq.
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