NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 2864

_____________ CHARLES MCDOWELL,

Appellant

v. MORAN FOODS , LLC , d/b/a SAVE

- A

- LOT, LTD.

_____________ On Appeal from the United St ates District Court for the

Eastern District of Pennsylvania (D.C. No. 2

- 15

- cv - 0 4995) District Judge: Hon. Robert F. Kelly

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

January 23, 201 7 Before: CHAGARES, RESTREPO , and ROTH , Circuit Judges
.

(Filed: February 28, 2017 )

_____________ OPINION 

_____________

 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 McDo well (“McDowell”) brought this suit in Pennsylvania state court alleging negligence o n the part of Moran Foods , LLC , d/b/a Save

- a - Lot, Ltd. (“Sa ve - 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 j udgment of the District Court. I
. Becau se 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 s tore. When he was approximately a quarter of the way up the aisle, he slipped on a piece of banana and fell. T he 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 cle an , and it did not appear that the banana had otherwise been stepped on or t hat a cart had rolled over i t. McDowell stated that he did not know how long the banana was on the floor or how it got there. The3

produce section is located in aisle one . T he banana peel was not located. McDowell’s fall was recorded on store surveillance , and he alleges that he s uffered 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 t here [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 “cl ean 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 t hat 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 re stocked
. Weisbrod testified that the o ther 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

- 1 2. 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.4

The D istrict 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 stand ard 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 u pon 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 lan d 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 suc h condition.” Estate of Swift v. Ne. Hosp. of Phila
. ,

1 The parties agr ee 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 noti ce of the dangerous condition. Thus, resolution of the issue of constructive notice [was] dispositive.” App. 13 (footnote omitted)
. Because McDowell did not present any e vidence that Save

- a - Lot caused the banana to be on the flo or or had actual notice o f 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 conditio n a s 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, 88 9 (Pa. 1952) (reversing denial of defendant’s motion for judgment notwithstandin g 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 128 2, 1286 (Pa. Super. Ct. 2004) (affirming
summar y 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 whe re plaintiff did not provide any evidence “ as to how6

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 Weisbro d 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. Acco rdingly, argues McDowell, one of those issues could have been the banana. See McDowell Br. 13

- 14. However, Weisbro d testified that when he did the clean sweep there was no banana on the floor and also testified that the second issue ha d something to do w ith 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 ca rt. The banana was still yellow and was not dirty. Any jury would have to speculate how long the banana ha d been there. Pure conjecture cannot defeat summary judgment , and we hold that summary judgment was properly ent ered 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 sufficie nt to defeat summary judgment.” (quoting Robertson v. Allied Signal, Inc. , 914 F.2d 360, 382 n. 12 (3d Cir.1990) ) )
.7

McDowell also argues that the District Court erred in co ncluding that his claim under § 344 of the Restatement (S econd) 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 t o be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or other wise to protect them against it. Restatement (Second) of Torts § 344 (1965). The District Court concluded that “without evidence that the hazard was caused by t he negligence of a third

- party and that this third

party 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 judg ment in favor of Save

- a - Lot
. IV. For the foregoing reasons, we will affirm the j udgment of the District Court.