United States Court of Appeals,

Fifth Circuit.

Elizabeth FRET, Plaintiff-Appellant,

v.

MELTON TRUCK LINES, INCORPORATED; Darrell Edmond, Defendants-Appellees.

No. 17-50031

|

Summary Calendar

|

Filed September 1, 2017

Appeal from the United States District Court for the Western District of Texas, USDC No. 5:15-CV-710

Attorneys and Law Firms

Shannon Kathleen Dunn, Attorney, Law Office of Beth Watkins, San Antonio, TX, for Plaintiff-Appellant

James Masterson Parker, Jr., Larry D. Warren, Naman, Howell, Smith & Lee, P.L.L.C., San Antonio, TX, for Defendants-Appellees

Before REAVLEY, OWEN, and ELROD, Circuit Judges.

Opinion

PER CURIAM:*

 

*1 In this appeal, Elizabeth Fret (“Fret”) contends the district court erred in granting summary judgment in favor of Melton Truck Lines (“Melton”) and Darrel Edmond (“Edmond”). Because the summary judgment burden never shifted to Fret with regard to Fret’s simple negligence claim, we REVERSE the judgment on the simple negligence and respondeat superior claims and REMAND those claims only.

 

 

1. FACTUAL BACKGROUND

This is a personal injury and negligence lawsuit resulting from a motor vehicle accident that occurred when Edmond, an employee of Melton, struck a vehicle driven by Fret. Fret alleges that she sustained personal injuries as a result of the collision. Fret has appealed the district court’s grant of summary judgment in favor of Edmond and the trucking company that employed Edmond on Fret’s simple negligence and respondeat superior claims.1

 

Fret and Edmond were both driving on a two-lane portion of Interstate 410 in San Antonio, Texas. While attempting to change from the right to the left lane, Edmond collided with Fret, who was driving in the left lane. Edmond was operating a commercial vehicle while in the course and scope of his employment with Melton and with the permission and consent of Melton.

 

Fret timely filed suit in Texas state court. Fret asserted causes of action against Edmond for negligence, gross negligence, and negligence per se for violation of Section 545.401 and 545.351 of the Texas Transportation Code. In addition, Fret asserted that Melton was liable under the doctrine of respondeat superior and asserted claims for gross negligence, as well as negligent hiring, entrustment, supervision, training, retention, and qualification.

 

Melton and Edmond removed the state civil action to the United States District Court for the Southern District of Texas, and they filed a motion to transfer venue to the Western District of Texas, San Antonio Division. The district court granted the motion and transferred the case.

 

In the district court, Melton and Edmond filed a “Partial Hybrid Motion for Summary Judgment” seeking summary judgment on the negligent hiring, training, supervision, qualification, retention, entrustment; negligence per se; and gross negligence claims. They did not seek summary judgment on either the simple negligence claim against Edmond or the respondeat superior claim against Melton. Fret filed a motion requesting an extension to file a response to Melton and Edmond’s partial hybrid summary judgment motion which the district court granted, setting her deadline to respond twenty days after the close of discovery deposition. After the close of discovery, Fret did not file a timely response to Melton and Edmond’s partial hybrid motion for summary judgment. Twenty-five days after the deadline to respond to the partial hybrid summary judgment, the district court entered an order granting Melton and Edmond’s motion for summary judgment. Without notice to the parties, the district court sua sponte granted summary judgment on the simple negligence claim.2 Fret failed to respond to the partial hybrid summary judgment motion at any point before the district court granted summary judgment. The district court stated that it granted Melton and Edmond’s motion because Fret lacked evidence to support her claims. The district court dismissed all of Fret’s claims and concluded that Fret failed to set forth specific facts showing that there was a genuine issue for trial.

 

*2 After the trial court granted Melton and Edmond’s summary judgment on all Fret’s claims, Fret filed three post-judgment motions seeking relief under Federal Rules of Civil Procedure 59(e) and 60(b). Fret timely filed a “Motion for Reconsideration and to Reopen,” seeking relief under Rules 59(e) and 60(b)(1) as to her simple negligence claims. Fret requested that the district court grant relief by setting aside the judgment. Fret argued that Edmond and Melton’s partial hybrid motion for summary judgment did not include the simple negligence claim and that the failure to respond to the motion for summary judgment was due to a misunderstanding between the parties and the district court. Fret alleged that the parties had agreed to extend the deadline for responding to the summary judgment motion but had failed to seek the district court’s approval. The district court entered an order denying Fret’s motion for reconsideration.

 

Fret subsequently filed two similar motions for reconsideration. The latter motion for reconsideration included over one thousand pages of evidence and other exhibits. In her motions, Fret argued that the district court’s decision to grant summary judgment without consideration of the miscommunication regarding the agreement between the parties was manifestly unjust. Fret also argued it was manifestly unjust for the district court to dismiss in toto all of Fret’s claims. Fret argued that the sua sponte dismissal of her simple negligence and vicarious liability claims were inappropriate. The district court denied both motions to reconsider. Fret timely filed a notice of appeal of the district court’s order granting Melton and Edmond’s motion for summary judgment.

 

 

1. STANDARD OF REVIEW

We review grants of summary judgment de novo, applying the same standard as the district court. Templet v. HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008). “[W]here the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial. Only when ‘there is sufficient evidence favoring the nonmoving party for a jury trial to return a verdict for that party’ is a full trial on the merits is warranted.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). All reasonable inferences must be viewed in the light most favorable to the party opposing summary judgment, and any doubt must be resolved in favor of the non-moving party. Hillman v. Loga, 697 F.3d 299, 302 (5th Cir. 2012). The non-movant must adduce affirmative evidence to defeat summary judgment. Anderson, 477 U.S. at 257, 106 S.Ct. 2505.

 

 

III. ANALYSIS

In her complaint, Fret asserts simple negligence, negligence per se, gross negligence, and respondeat superior claims. Fret only challenges the district court’s dismissal of the simple negligence and respondeat superior claims. Even though Melton only specifically moved for summary judgment on the negligent hiring, training, supervision, entrustment, negligence per se, and gross negligence claims, the district court also granted summary judgment on Fret’s simple negligence claim. Fret argues that the district court’s grant of summary judgment on her simple negligence claim was inappropriate because the burden never shifted from the defendants to Fret. We conclude that the district court erred in granting summary judgment with respect to the simple negligence claim.

 

*3 Under Texas law, to prevail on a negligence cause of action, the plaintiff must prove “the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach.” IHS Cedars Treatment Ctr. of DeS oto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). Fret alleges that Edmond was negligent because he: (1) drove at a speed greater than a reasonable person would, (2) failed to timely apply his brakes; (3) took faulty evasive action; (4) failed to drive defensively; (5) failed to make safe decisions; (6) failed to blow his horn to warn of imminent collision, and (7) drove recklessly.

 

Melton and Edmond’s motion for partial hybrid summary judgment does not specifically address the claim of simple negligence. The motion only states, in a conclusory manner, that “Defendants respectfully request summary judgment on Plaintiffs causes of action because Plaintiff has no evidence to support these allegations.” Fret argues, and we agree, that this allegation of “no evidence,” without pointing to a specific element, is not enough to shift the burden from the defendants to Fret. See Austin v. Kroger Texas L.P., 864 F.3d 326, 335-36 (5th Cir. 2017).

 

Federal Rule of Civil Procedure 56 requires that the party “asserting that a fact cannot be … genuinely disputed” support its assertion by either “(A) citing to particular parts of materials in the record,” or “(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B) (emphasis added). Subsection B is disjunctive, allowing the moving party to support its position either by reference to materials in the record or by “showing” that the other party does not have admissible evidence supporting the fact at issue.

 

This showing does not require the party moving for summary judgment “to produce evidence showing the absence of a genuine issue of material fact, even with respect to an issue on which the nonmoving party bears the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed. R. Civ. P. 56(c) advisory committee’s note to 2010 amendment (“Subdivision (c)(1)(B) recognizes that a party need not always point to specific record materials.”). But it is also true that even when the non-movant bears the burden of proof at trial, “[s]imply filing a summary judgment motion does not immediately compel the party opposing the motion to come forward with evidence demonstrating material issues of fact as to every element of its case.” Russ v. Int’l Paper Co., 943 F.2d 589, 591 (5th Cir. 1991). It is not enough for the moving party merely to make a conclusory statement that the other party has no evidence to prove his case. See Celotex, 477 U.S. at 328, 106 S.Ct. 2548 (White, J., concurring).

 

Here, because the defendants did not move for, argue, or brief the simple negligence claim in its partial hybrid motion for summary judgment, it is impossible for them to satisfy the movant’s burden as set out in Celotex and Russ. See Celotex 477 U.S. at 325, 106 S.Ct. 2548; Russ, 943 F.2d at 591. Melton and Edmond’s motion for summary judgment failed to identify an absence of any specific element of simple negligence. In fact, the motion raised no fact issues with regards to simple negligence nor did it identify any absence of evidence pertaining to any specific theory of Fret’s simple negligence claim. A mere conclusory statement that the other side has no evidence is not enough to satisfy a movant’s burden. See Ashe v. Corley, 992 F.2d 540, 543 (5th Cir. 1993). As a result, the burden never shifted to Fret to go beyond the pleadings to come forward with specific facts creating a genuine issue for trial on the simple negligence claims. Therefore, it was inappropriate for the district court to grant summary judgment on that claim.

 

*4 Further, the district court’s brief analysis on the simple negligence issue also highlights why summary judgment was inappropriate. The district court concluded that there was no evidence from which a reasonable jury could find that Edmond breached a legal duty it owed Fret and therefore no damages were proximately caused by the breach. In support of this finding, the district court pointed to Edmond’s deposition where he testified that he believed the accident was not preventable because he looked in his mirrors, turned on his blinkers, and moved slowly before changing lanes. The district court held that because Fret submitted no evidence to contradict the precautionary measures taken by Edmond and because Fret never amended her original petition, no issues of material fact remained regarding Fret’s simple negligence claim.

 

We respectfully disagree with the district court and believe there are genuine issues of material fact as to whether a reasonable jury could have determined that Edmond’s breach of duty proximately caused Fret’s injuries. The facts relied upon by the district court are not sufficient to overcome Fret’s theories of negligence. For example, the fact that Edmond may have looked before turning on his blinker and changing lanes does not defeat Fret’s theory of negligence based on the allegation that Edmond did not timely apply his brakes, or that he drove at an unreasonable speed. Further, Edmond’s deposition itself—relied upon by the district court—demonstrates there is an issue of fact. Specifically, in the very portion of the deposition the district court cites, Edmond repeatedly testified that he said the collision was his fault at the scene immediately following the crash. Edmond’s testimony itself creates a fact issue that defeats summary judgment with respect to the simple negligence claim.

 

Therefore, because the summary judgment burden did not shift to Fret, and because there is a genuine issue of material fact, we REVERSE the district court’s grant of summary judgment with respect to simple negligence. We also REVERSE the district court’s sua sponte grant of summary judgment in respect to respondeat superior claim to the extent those claims are related to the simple negligence claim.

 

 

1. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s order that sua sponte grants summary judgment in respect to the simple negligence and respondeat superior claims in favor of Melton and Edmond and REMAND to the district court for proceedings consistent with this opinion, and we AFFIRM in all other respects.

 

All Citations

— Fed.Appx. —-, 2017 WL 3841581

 

 

Footnotes

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1

Fret does not appeal the district court’s granting of summary judgment in regard to the negligence per se, gross negligence, negligent hiring, entrustment, supervision, training, retention and qualification claims.

2

A district court may sua sponte grant summary judgment so long as the losing party has notice. HS Res., Inc. v. Wingate, 327 F.3d 432, 441 (5th Cir 2003).

United States District Court,

M.D. Pennsylvania.

DORI FLOOK, Plaintiff,

v.

THE TJX COMPANIES, INC, Defendant.

No. 4:15-CV-02069

|

09/15/2017

 

Matthew W. Brann, United States District Judge

 

MEMORANDUM OPINION SEPTEMBER 15, 2017

*1 Defendant The TJX Companies, Inc. (hereinafter “TJX”) filed a motion for partial summary judgment1 and a motion for summary judgment2 on Count I of Plaintiff Dori Flook’s complaint. For the reasons discussed below, both motions are granted.

 

 

1. BACKGROUND
2. The Injury3

Ms. Flook is a truck driver.4 On February 21, 2014, while delivering a trailer full of goods to a distribution center in Pittston, Pennsylvania, she slipped and fell on some snow and ice and injured herself.5 That injury is the genesis of this lawsuit.

 

At the time of the accident, Ms. Flook was driving as an employee of 4M Express, a trucking company owned by her father-in-law.6 The distribution center was operated by TJX.7 On the day in question, Ms. Flook arrived at the distribution center around 9:50 am and checked in with an employee at the guard shack.8 She was assigned a slot at the warehouse, where she was to park her trailer so that it could be unloaded.9 It had recently snowed in Pittston, but “the road going into the place was clear” and she could see “piles of snow in different areas where it had [been] plowed.”10 She saw, however, that “they didn’t plow under the trailers” parked in other warehouse slots; in fact, “[a]ll the trailers…had mounds of ice and snow under them…[i]ncluding the dock [she] was going into[, which] had a patch of ice, a hump.”11

 

Ms. Flook noticed that snow and ice at her assigned slot “[w]hen [she] first drove up to it.”12 She had previously made deliveries to distribution centers with snow and ice on the ground, knew that such conditions were “not uncommon during the winter months,” and knew that she should “take extra precautions” in such situations.13 Although she realized that the snow and ice in her slot “could be slippery” and that she had to “be careful and exercise care,” she didn’t think it would “present a hazard or [be] dangerous to” her.14

 

After Ms. Flook backed the trailer up to the warehouse, she noticed that there was approximately 6 inches of snow and ice on the ground near her rear tires.15 Walking “carefully across the mound of ice and through the snow,” she unhooked the airlines connecting the trailer to her truck, chocked her tires, and rolled down the trailer’s landing gear, without incident.16 When she reached in to pull the pin on the truck’s fifth wheel, however, she “got off balance[ ]” and “just slipped.”17 As she remembers the incident, her “feet went out from under [her] on the ice [and] went up in the air[,] and [she] landed flat on [her] back.”18 As a result, she suffered a broken tailbone and trauma to her back and head.19

 

 

1. Procedural History

*2 On September 18, 2015, Ms. Flook instituted the instant action in the Court of Common Pleas of Luzerne County. Her complaint alleged that her accident “was caused exclusively and solely by the negligence, carelessness, and/or recklessness” of TJX, and that TJX failed to, inter alia, eliminate or warn her of the “dangerous condition” – i.e., the ice and snow – on its property.20 On October 26, 2015, TJX removed the action to this Court on the basis of diversity jurisdiction.21

 

On December 20, 2016, TJX filed the instant motions. In its motion for partial summary judgment, TJX argues that there is insufficient evidence, as a matter of law, to support Ms. Flook’s allegation that its actions were “reckless.” In its motion for summary judgment, TJX argues that Ms. Flook’s negligence claim must fail because it owed Ms. Flook no duty vis-à -vis the snow and ice on its property. Ms. Flook filed oppositions to these motions on February 17, 2017, and TJX replied to these oppositions on March 3, 2017. Attached to these filings were transcripts of the deposition testimony of Ms. Flook and several other individuals who worked at the distribution center.

 

 

1. Snow and Ice Removal at the Distribution Center

Several distribution center employees testified about the policies and procedures in place for dealing with snow and ice there, as well as the way those policies and procedures were put into practice.

 

In 2014, Kevin McDermott was the distribution center’s maintenance manager.22 In that position, his “primary duty” regarding snow and ice removal was “to policy,”23 and to that end, he created a “Snow Removal Plan” to be followed by management and staff.24 As part of its “Purpose,” the plan indicated that it “will be used to ensure procedures are in place to keep parking areas for associate vehicles and trailers clear,” and one of its “Objectives” was to take “all actions required to maintain proper control of trailers.”25 The plan outlines a list of “Responsibilities,” broken down by employee position (e.g., management, maintenance) and “phase” (i.e., before a winter storm or after), that includes the responsibility to “[m]aintain a snow removal contract that provides the resources to maintain the grounds clear of snow and ice buildup in a reasonable period of time.”26

 

To effectuate this plan, the distribution center contracted with Snow Management, Inc. (“SMI”).27 As described by Mr. McDermott, SMI’s “responsibility [was] to keep the parking lot clear of snow and ice, and to respond when we need them for dealing with snow and ice.”28 SMI would come automatically, without a call from anyone at the distribution center, when there was a snowfall or more than 2 or 3 inches.29 And SMI would “continuously plow during the actual storms…just to keep up with keeping the lots clear for the trucks, because the trucks continue to operate during the storm.”30

 

The distribution center did not leave all responsibility with SMI, however. As described by more than one employee at the distribution center, snow and ice removal was a “team effort.”31 The maintenance employees would assist in removal,32 the managers and supervisors would monitor any ongoing situation and obtain any needed assistance,33 and various materials –salt, ice choppers, and shovels – were located throughout the facility in case anyone, including drivers like Ms. Flook, needed them.34

 

*3 Mr. McDermott admitted, however, that the distribution center did not have a “totally dry policy,” and that the facility was “never going to be a hundred percent clear of snow or ice.”35 He agreed that there was an “issue with snow and ice accumulation underneath the trailers” and indicated that the company would pull the trailers away from the building in order to clear those areas completely only after a “heavy blizzard.”36 Although some of the deposed employees testified to seeing snow- and ice-related accidents at the distribution center,37 others could not remember any such accidents,38 and none of them could remember another driver slipping and falling on ice or snow there.39

 

 

1. DISCUSSION
2. Standard of Review

Summary judgment is granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”40 A dispute is “genuine if a reasonable trier-of-fact could find in favor of the non-movant,” and “material if it could affect the outcome of the case.”41 To defeat a motion for summary judgment, then, the nonmoving party must point to evidence in the record that would allow jury to rule in that party’s favor.42 When deciding whether to grant summary judgment, a court should draw all reasonable inferences in favor of the non-moving party.43

 

 

1. Whether TJX Owed Ms. Flook a Duty of Care Regarding Snow and Ice On Its Property

When adjudicating a state law claim pursuant to its diversity jurisdiction, a federal court applies the substantive law of the forum state44 – here, Pennsylvania. Under Pennsylvania law, a plaintiff alleging negligence must show (1) a duty of care owed by the defendant to the plaintiff, (2) a breach of that duty, (3) a causation connection between that breach and plaintiff’s injury, and (4) damages.45The existence of a duty is generally a question of law for the court.46

 

When a plaintiff alleges that a defendant was negligent as a possessor of land – as is the case here – the defendant’s duty depends on whether the plaintiff is considered a trespasser, licensee, or invitee.47 If plaintiff was an invitee – which the parties agree was the case here – then the defendant is required to protect her from foreseeable harm.48 The defendant, however, “is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”49 Whether a danger is “known or obvious” is usually a question of fact for the jury,50 but it “may be decided by the court where reasonable minds could not differ as to the conclusion.”51 Courts interpreting Pennsylvania law have repeatedly held that the danger of snow and ice on the ground is “known or obvious” and that, therefore, possessors of land are not liable when invitees slip and fall on it.52

 

*4 The danger from the snow and ice around Ms. Flook’s vehicle was both “known” and “obvious.” Ms. Flook repeatedly testified that she was aware of the conditions around her assigned slot. She spoke about the “patch of ice” there, which she noticed “[w]hen [she] first drove up to” the slot. She knew that these conditions were “not uncommon” and required her to “take extra precautions,” “be careful[,] and exercise care.” And although she testified that she personally didn’t think this particular patch would “present a hazard or [be] dangerous,” she nevertheless also admitted – perhaps contradictorily –that she realized it “could be slippery.” Ms. Flook, then, almost certainly knew of the danger posed by the conditions around her vehicle, which was, in any event, obvious.

 

Ms. Flook argues that, even if the danger of the snow and ice was known or obvious, TJX should have anticipated the harm to her. To support this contention, she points to the fact that some of the employees at the distribution center remember seeing other snow- and ice-related accidents there. However, there is no evidence that any other drivers ever slipped and fell on snow or ice at the parking slots, and Ms. Flook admitted that these “not uncommon” conditions required some “precaution” and “care.” In light of these facts, and in light of courts’ repeated holdings that possessors of land are not liable for accidents on known and obvious snowy and icy conditions,53 TJX should not have anticipated any harm to Ms. Flook.

 

As a matter of law, then, TJX owed no duty to Ms. Flook regarding the snow and ice on its property.

 

 

1. Whether TJX Owed a Duty of Care to Ms. Flook in Her Role as an Independent Contractor

In its motion for summary judgment, TJX argues that it owed no duty of care to Ms. Flook in her role as an independent contractor. To support this contention, TJX notes that, under Pennsylvania law, a possessor of land “who engages an independent contractor is not responsible for the acts or omissions of such independent contractors or his employees.”54

 

This argument is misplaced, since that doctrine deals with situations where the independent contractor – not the possessor of land – acts negligently. Here, Ms. Flook has not alleged or produced evidence of negligence on the part of anyone but TJX. As she points out in her opposition to TJX’s motion for summary judgment, this doctrine is “completely inapplicable to the matter at hand.”55Therefore, this Court will not address it.

 

 

1. Whether TJX Owed a Duty of Care to Ms. Flook Because It Undertook a Rendering of Services to Her

Ms. Flook argues that TJX owed her a duty because it undertook a rendering of services to her – i.e., because it made an attempt to remove snow and ice from the distribution center. Under Pennsylvania law,

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon

the undertaking.56

 

Ms. Flook, however, has not cited to any cases interpreting Pennsylvania law where this doctrine has created a duty in a situation involving snow and ice removal, nor has this Court found one.57 In any event, Ms. Flook has pointed to no evidence showing that TJX’s efforts to remove snow and ice “increase[d] the risk” of any remaining snow and ice, or showing that she relied on those efforts.

 

*5 TJX’s efforts at removing snow and ice from the distribution center, then, created no duty to Ms. Flook.

 

 

1. Whether TJX’s Behavior Could Be Considered “Reckless”

Under Pennsylvania law, “reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to other involved in it or with knowledge of facts which would disclose this danger to any reasonable man.”58 Unlike negligence, which “consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions,” recklessness “requires conscious action or inaction which creates a substantial risk of harm to others.”59

 

Ms. Flook has failed to point to any evidence upon which a trier of fact could reasonably find that TJX’s actions were reckless. Mr. McDermott, the distribution center’s maintenance manager at the time, testified extensively about the policies in place to deal with snow and ice at the distribution center, including the detailed and carefully-created Snow Removal Plan and the contract with SMI. The other employees corroborated this testimony, and also indicated that keeping the area clear was a “team effort” involving everyone on site. It is true that the distribution center did not have a “totally dry policy,” that there was an “issue with snow and ice accumulation underneath the trailers,” and that the company would pull all the trailers away from the building to clear those areas completely only after a “heavy blizzard.” But these facts, in light of the thoroughly-established and comprehensive procedures for snow and ice removal at the distribution center, cannot support a finding that TJX made a “conscious choice” to leave unsafe areas of snow and ice that created a “serious danger” or “substantial risk of harm,” especially since none of the employees ever remembered a driver having an issue.

 

There is insufficient evidence, then, for a trier of fact to find that TJX acted recklessly.

 

 

III. CONCLUSION

As a matter of law, TJX owed no duty to Ms. Flook regarding the snow and ice on its property, and its efforts to deal with that snow and ice did not create such a duty. Additionally, as a matter of law, there is insufficient evidence for a trier of fact to find that TJX acted recklessly. TJX’s motion for summary judgment and its motion for partial summary judgment, then, are granted.

 

Because Ms. Flook has failed to identify any other theory under which TJX could owe her a duty of care, she is – despite her injuries – unable to prevail on her claim of negligence and recover from TJX. Therefore, judgment is entered in favor of TJX on Count I of her complaint.

 

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

 

 

Matthew W. Brann

United States District Judge

All Citations

Slip Copy, 2017 WL 4099753

 

 

Footnotes

1

ECF No. 25.

2

ECF No. 27.

3

The facts in this section are undisputed, and all inferences have been drawn in favor of Ms.

Flook. See Standard of Review, infra § II.A.

4

ECF No. 36, Ex. G at 41.

5

Id. at 59, 76.

6

Id. at 43.

7

TJX owns and operates a host of retail stores including T.J. Maxx, Marshalls, and

HomeGoods.

8

ECF No. 36, Ex. G (Flook Dep. of September 28, 2016) at 61, 67.

9

Id. at 64.

10

Id. at 62.

11

Id. at 63-64.

12

Id. at 68.

13

Id. at 92.

14

Id. at 69, 94.

15

Id. at 71, 73.

16

Id. at 72, 74-75.

17

Id. at 76.

18

Id.

19

Id. at 21.

20

ECF No. 1, Ex. A ¶ 12.

21

ECF No. 1 ¶ 5.

22

ECF No. 36, Ex. F (McDermott Dep. of Nov. 11, 2016) at 9.

23

Id. at 20.

24

Id. at 47-48; Ex. I.

25

ECF No. 36, Ex. I.

26

Id.

27

ECF No. 36, Ex. F at 23.

28

Id. at 22.

29

Id. at 24-25.

30

Id. at 25.

31

ECF No. 36, Ex. D at 28, Ex. E at 34.

32

ECF No. 36, Ex. E at 31-32, 46.

33

ECF No. 36, Ex. F at 40, 49.

34

Id. at 34.

35

Id. at 50-51.

36

Id. at 48.

37

ECF No. 36, Ex. D at 36, Ex. E at 38.

38

ECF No. 36, Ex. A at 41-42, Ex. C at 20-21, Ex. F at 57.

39

ECF No. 36, Ex. A at 41-42, Ex. B at 26-27, Ex. D at 37, Ex. E at 38, Ex. F at 57.

40

Federal Rule of Civil Procedure 56(a).

41

Lichtenstein v. University of Pittsburgh Medical Center, 691 F.3d 294, 300 (3rd Cir. 2012)

(citing Anderson v. Liberty Lobby, 477 U.S. 242, 248, 252 (1986).

42

Federal Rule of Civil Procedure 56(c)(1); Liberty Lobby, 477 U.S. at 249.

43

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation

omitted).

44

Kaplan v. Exxon Corp., 126 F.3d 221, 224 (3rd Cir. 1997); Erie R.R. Co. v. Tompkins, 304

U.S. 64 (1938).

45

 

Northwestern Mut. Life Ins. Co. v. Babayan, 430 F.3d 121, 139 (3rd Cir. 2005).

46

In re TMI, 67 F.3d 1103, 1117 (3rd Cir. 1995).

47

Carrender v. Fitterer, 503 Pa. 178, 184 (1983).

48

Id. at 185.

49

Id. (emphasis added) (quoting Restatement (Second) of Torts § 343A).

50

See, e.g., Devlin v. Home Depot U.S.A., Inc., 2013 WL 6835409 at *3-6 (M.D. Pa. 2013);

Wagner v. H.H. Knoebel Sons, Inc., 2016 WL 531694 at *2-4 (M.D. Pa. 2016).

51

Carrender, 503 Pa. at 186.

52

See, e.g., Id. at 186-87; Freudenvoll v. Stavros, 49 Pa. D. & C.4th 328, 333-34 (Com. Pl.

2000); King v. Rocktenn CP, LLC, 643 Fed.Appx. 180, 183-84 (3rd Cir. 2016) (Jordan, J.).

53

See supra, FN 52.

54

ECF No. 27 ¶ 50 (citing Beil v. Telesis Const., Inc., 608 Pa. 273, 289 (2011)).

55

ECF No. 37 at 10.

56

Feld v. Merriam, 506 Pa. 383, 392-93 (1984) (citing Restatement (Second) of Torts § 323).

57

Cf. Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1089 (Pa. Super. Ct. 1997) (finding

no duty); Saris v. Charles, 67 Pa. D. & C.4th 545, 553 (Com. Pl. 2004) (same). But see Cater v. Starbucks Corp., 2010 WL 3169613 at *4 (E.D. Pa. 2010) (finding this issue a question for the jury where one party “regularly salt[ed] icy areas of the parking lot” and “inform[ed the other party] if the parking lot needed to be cleared of ice or snow”).

58

Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 402 (2012) (citing Restatement (Second) of

Torts § 500, cmt. g).

59

Id. at 402.