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Pace v. Wal-Mart Stores E., LP

United States Court of Appeals for the Third Circuit

June 27, 2019, Submitted Pursuant to Third Circuit L.A.R. 34.1(a); January 28, 2020, Filed

No. 18-3313

Opinion

 [*128]  OPINION1

CHAGARES, Circuit Judge.

Plaintiff Arthur Pace instituted this slip and fall negligence lawsuit against Wal-Mart Stores East, L.P. ("Wal-Mart"), and the District Court granted Wal-Mart summary judgment. The District Court found that Pace failed to present any evidence that Wal-Mart had notice of the liquid on the floor that allegedly caused Pace to slip, fall, and injure himself. Because either actual or constructive notice of the relevant hazard is an essential element of slip-and-fall premises liability under Pennsylvania law, the District Court concluded that summary judgment was appropriate. For the following reasons, we will affirm.

We write for the parties and so recount only the facts necessary [**2]  to our decision. Our recitation of facts is construed in the light most favorable to Pace. On August 23, 2019, Pace was shopping at a Wal-Mart in Willow Grove, Pennsylvania. In the produce section, Pace slipped and fell due to a liquid substance on the floor, which Pace says may have come from grapes. Pace acknowledges that he does not know how the liquid came to be on the floor or how long it was there before he fell. After the incident, Pace suffered persistent pain in his back and right knee, and he eventually underwent a total right knee replacement.

Pace brought suit in the Court of Common Pleas for Philadelphia County in early 2017. Wal-Mart subsequently removed the case to federal court. Prior to filing his suit, Pace's counsel sent a letter to Wal-Mart requesting that it retain (among other items) six hours of pre-incident and three hours of post-incident surveillance video footage of the area where Pace fell.

During discovery, Wal-Mart's Asset Protection Associate, Fabian Wright, testified in his deposition that he maintains the  [*129]  Willow Grove Wal-Mart store's video surveillance records. He also testified that no video recordings had captured Pace's accident and that no recordings [**3]  related to Pace's fall had been destroyed. According to Wright, Pace fell in a "blind spot" in the produce section that was not covered by the store's surveillance cameras. Appendix ("App.") 402. Pace filed a motion to compel Wal-Mart to create and produce a map of the surveillance system's blind spots in the produce section.

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799 Fed. Appx. 127 *; 2020 U.S. App. LEXIS 2796 **; 2020 WL 429703

ARTHUR PACE, JR., Appellant v. WAL-MART STORES EAST, LP

Notice: NOT PRECEDENTIAL OPINION UNDER THIRD CIRCUIT INTERNAL OPERATING PROCEDURE RULE 5.7. SUCH OPINIONS ARE NOT REGARDED AS PRECEDENTS WHICH BIND THE COURT.

PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

Prior History:  [**1] On Appeal from the United States District Court for the Eastern District of Pennsylvania. (No. 2-17-cv-01829). District Judge: Honorable Michael M. Baylson.

Pace v. Wal-Mart Stores E., LP, 337 F. Supp. 3d 513, 2018 U.S. Dist. LEXIS 158752 (E.D. Pa., Sept. 18, 2018)

CORE TERMS

video, surveillance, spoliation, floor, summary judgment, liquid, summary judgment motion, constructive notice, footage, suppressed, destroyed, hazard

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Evidence, Relevance, Preservation of Relevant Evidence, Spoliation, Summary Judgment Review, Standards of Review, Torts, Activities & Conditions, Slip & Fall Injuries, Elements, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine