NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-2864

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CHARLES MCDOWELL,

Appellant

 

v.

MORAN FOODS, LLC, d/b/a SAVE-A-LOT, LTD.

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On Appeal from the United States District Court for the 

Eastern District of Pennsylvania

(D.C. No. 2-15-cv-04995)

District Judge: Hon. Robert F. Kelly 

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Submitted under Third Circuit L.A.R. 34.1(a)

January 23, 2017

Before: CHAGARES, RESTREPO, and ROTH, Circuit Judges.

(Filed: February 28, 2017) 

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OPINION

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 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

CHAGARES, Circuit Judge.

Plaintiff Charles McDowell (“McDowell”) brought this suit in Pennsylvania state 

court alleging negligence on the part of Moran Foods, LLC, d/b/a Save-a-Lot, Ltd. 

(“Save-a-Lot”), and Save-a-Lot removed the case to federal court. Save-a-Lot then 

moved for summary judgment, and the motion was granted. McDowell timely appealed. 

For the reasons set forth below, we will affirm the judgment of the District Court.

I.

Because we write exclusively for the parties, we set forth only those facts 

necessary to our disposition. “[W]e view the record in the light most favorable to 

[McDowell] and draw all reasonable inferences in his favor.” Nicini v. Morra, 212 F.3d 

798, 806 (3d Cir. 2000) (en banc).

On January 13, 2014, McDowell was shopping at a Save-a-Lot store located in

Philadelphia, Pennsylvania. He was with his then-girlfriend and her daughter. At 

approximately 2:26 p.m., McDowell entered aisle six from the back of the store. When 

he was approximately a quarter of the way up the aisle, he slipped on a piece of banana 

and fell. The banana piece was yellow or light tannish in color. It was approximately

three and a half inches long. A two-inch portion of the banana was “smushed” by 

McDowell’s foot, and the remaining inch and a half of it was intact. Appendix (“App.”) 

190:9-191:1. The intact part of the banana was clean, and it did not appear that the 

banana had otherwise been stepped on or that a cart had rolled over it. McDowell stated

that he did not know how long the banana was on the floor or how it got there. The 
3

produce section is located in aisle one. The banana peel was not located. McDowell’s 

fall was recorded on store surveillance, and he alleges that he suffered serious injuries as 

a result of the fall. 

At some time between 1:00 p.m. and 1:30 p.m., assistant store director, Joe 

Weisbrod, performed a “Commitment to Win” (“CTW”) walkthrough of the store with 

the manager. A CTW is conducted to “make sure there [are] no trip hazards . . . make 

sure things are filled properly.” App. 313:10-11. When he did the CTW walkthrough, the 

banana was not on the floor in aisle six. At approximately 1:20 p.m., Weisbrod, the store 

manager, and another employee did a “clean sweep” of the store. Clean sweeps are 

conducted every four hours at that Save-a-Lot. As part of a clean sweep, employees 

inspect the floors. The employee conducted the sweep first and then Weisbrod and the 

manager followed her. Weisbrod testified that there was no banana on the floor at this 

time either. He also testified, however, that the employee had made note of two issues 

needing attention in aisle six. One of the issues was that the milk needed to be restocked. 

Weisbrod testified that the other issue was also in the dairy section of aisle six, but he did 

not remember what it was. At one point in his deposition, Weisbrod referred to this 

second issue as related to something else that needed to be restocked, possibly the yogurt. 

App. 322:8-12. 

On March 29, 2016, Save-a-Lot filed a motion for summary judgment. The 

District Court granted this motion on June 13, 2016, concluding that there was no 

genuine issue of fact regarding Save-a-Lot’s actual or constructive notice of the banana. 
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The District Court granted summary judgment in favor of Save-a-Lot. This appeal timely 

followed. 

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have 

jurisdiction to review the District Court’s grant of summary judgment pursuant to 28 

U.S.C. § 1291. “We review an order granting summary judgment de novo, applying the 

same standard used by the District Court.” Nicini, 212 F.3d at 805.

III. 

Under Pennsylvania law,1“[t]he standard of care a possessor of land owes to one 

who enters upon the land depends upon whether the person entering is a trespassor, 

licensee, or invitee.” Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). It is 

undisputed that McDowell was an invitee of Save-A-Lot. Under Pennsylvania law, 

[a] possessor of land is subject to liability for physical harm caused to his 

invitees by a condition on the land if, but only if, he:

(a) knows or by the exercise of reasonable care would discover the 

condition and should realize that it involves an unreasonable risk of 

harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or 

will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Kirschbaum v. WRGSB Assocs., 243 F.3d 145, 152 (3d Cir. 2001) (footnote omitted) 

(quoting Restatement (Second) of Torts § 343)). In other words, “[a]n invitee 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.” Estate of Swift v. Ne. Hosp. of Phila., 

 

1 The parties agree that Pennsylvania law applies, as do we. 
5

690 A.2d 719, 722 (Pa. Super. Ct. 1997). The District Court concluded that “there [was]

no evidence whatsoever that Defendant itself either caused the dangerous condition or 

that it had actual notice of the dangerous condition. Thus, resolution of the issue of 

constructive notice [was] dispositive.” App. 13 (footnote omitted). Because McDowell 

did not present any evidence that Save-a-Lot caused the banana to be on the floor or had 

actual notice of it, the District Court properly concluded that the issue of constructive 

notice was dispositive. 

To establish constructive notice of a dangerous condition, a plaintiff must show 

that “the condition existed for such a length of time that in the exercise of reasonable care 

the owner should have known of it.” Moultrey v. Great A&P Tea Co., 422 A.2d 593, 596 

(Pa. Super. Ct. 1980). 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.” Lanni v. Pa. R.R. Co., 88 A.2d 887, 889 (Pa. 1952) (reversing denial 

of defendant’s motion for judgment notwithstanding verdict since “there was no 

evidence, facts or circumstances which were sufficient to enable a jury to reasonably and 

legitimately impute negligence, i.e., constructive notice of the unsafe condition”); see 

also Porro v. Century III Assocs., 846 A.2d 1282, 1286 (Pa. Super. Ct. 2004) (affirming 

summary judgment where plaintiff “admitted in his deposition he [did] not know how 

long the substance he slipped on was present on the stairs”); Swift, 690 A.2d at 722

(affirming summary judgment where plaintiff did not provide any evidence “as to how 
6

the water [that plaintiff slipped on] arrived on the floor” or how long the dangerous 

condition existed).

On appeal, McDowell argues that there was a genuine issue of material fact as to 

whether Save-A-Lot had actual or constructive notice of the banana. In particular, he 

points to the fact that Weisbrod said that the employee doing the clean sweep had noted 

two issues on aisle six that needed to be addressed, and he could not remember what the 

second issue was. Accordingly, argues McDowell, one of those issues could have been 

the banana. See McDowell Br. 13-14. However, Weisbrod testified that when he did the 

clean sweep there was no banana on the floor and also testified that the second issue had 

something to do with restocking, possibly the yogurts. No reasonable jury could 

conclude that the second issue was the banana. 

There is no evidence in the record that could prove that Save-a-Lot had 

constructive notice of the banana on the floor. Neither McDowell nor Weisbrod knew 

how long the banana was on the floor. There was no indication that anyone else had 

stepped on the banana or run it over with their cart. The banana was still yellow and was 

not dirty. Any jury would have to speculate how long the banana had been there. Pure 

conjecture cannot defeat summary judgment, and we hold that summary judgment was 

properly entered in favor of Save-a-Lot. See Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d 

Cir. 2014) (“[A]n inference based upon a speculation or conjecture does not create a 

material factual dispute sufficient to defeat summary judgment.” (quoting Robertson v. 

Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir.1990))).
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McDowell also argues that the District Court erred in concluding that his claim 

under § 344 of the Restatement (Second) of Torts was not viable. Section 344 provides 

that

[a] possessor of land who holds it open to the public for entry for his 

business purposes is subject to liability to members of the public while they 

are upon the land for such a purpose, for physical harm caused by the 

accidental, negligent, or intentionally harmful acts of third persons or 

animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or 

otherwise to protect them against it.

Restatement (Second) of Torts § 344 (1965). The District Court concluded that “without 

evidence that the hazard was caused by the negligence of a third-party and that this thirdparty hazard was a regular occurrence, Plaintiff’s claim under § 344 of the Restatement 

(Second) of Torts also fails as a matter of law.” App. 18 n. 8. McDowell argues that the 

existence of Save-A-Lot’s clean sweep program is implicit acknowledgment of the fact 

that hazards are a regular occurrence. However, McDowell’s argument is meritless, as he 

offers no evidence supporting his contention. Accordingly, the District Court properly 

entered summary judgment in favor of Save-a-Lot. 

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.