J-A22026-17

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CAROL SCHNEIDER AND ERIK 

SCHNEIDER 

Appellants

v.

GIANT FOOD STORES, LLC, AND 

GIANT FOOD STORE #6043

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 458 EDA 2017

Appeal from the Order Entered January 9, 2017

In the Court of Common Pleas of Northampton County Civil Division at 

No(s): C0048CV2015-1548

BEFORE: BOWES, J., LAZARUS, J., and PLATT*, J.

MEMORANDUM BY BOWES, J.: FILED JUNE 14, 2018

Carol and Erik Schneider appeal from the January 9, 2017 order 

granting summary judgment in favor of Giant Food Stores, LLC, and Giant 

Food Store #6043 (collectively “Giant”). We affirm. 

At approximately 4:45 p.m. on July 30, 2013, Carol Schneider entered 

the Giant Food Store located at 1880 Leithsville Road in Hellertown, 

Northampton County. After selecting the items she intended to purchase,

she proceeded to the checkout area at the front of the store. As she 

approached a self-checkout register, her right leg slipped out from under her 

and her left knee touched the floor. After she righted herself, she noticed 

that her pant leg was wet. 
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Mrs. Schneider approached the self-checkout attendant, later identified 

as Melissa Regalis. She notified Ms. Regalis that she had fallen and pointed 

to the area where she fell. Ms. Regalis assured her that she would clean up 

the area. Mrs. Schneider paid for her groceries, and, as she exited the 

store, she stopped at the customer service desk and informed the service 

representative that she had slipped and fallen. 

The Schneiders filed the instant complaint against Giant on February 

18, 2015. They alleged that the puddle of liquid that caused Mrs. Schneider 

to slip was near a refrigerated display case located within the self-checkout 

area visible from the platform where the attendant was located. They 

averred further that Giant created the dangerous condition and/or that Giant 

knew or should have known of it with reasonable inspection. Giant was 

negligent as it failed to inspect and discover the hazard and either warn or 

correct it, although it had ample time to do so. Mrs. Schneider pled that she 

sustained injuries to her left knee, aggravation of pre-existing tendinitis and 

arthritis in that knee, and back and neck pain due to the fall. Her husband 

made a claim for loss of consortium. Giant filed an answer denying that any 

puddle of liquid or dangerous condition existed or that it was negligent. 

Following discovery, Giant filed a motion for summary judgment. It 

alleged that since the Schneiders had adduced no evidence regarding the 

origin of the puddle of clear liquid or how long it was present on the floor 

prior to the incident, it had failed to prove that Giant had actual or 
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constructive notice of the condition. The Schneiders countered that notice of 

the condition could reasonably be inferred from several facts elicited during 

Mrs. Schneider’s deposition. First, Mrs. Schneider testified that Ms. Regalis 

looked directly to the spot where she fell without having been told, and the 

attendant assured her that it would be cleaned up. Second, according to 

Mrs. Schneider, the liquid was visible from the spot where Ms. Regalis was 

standing, and her pant leg was wet after the fall. Finally, the Schneiders 

maintained that it could be inferred from the fact that a soda case located 

near the area of her fall was subsequently relocated that it was the cause of 

the puddle. 

The trial court granted summary judgment based on a lack of evidence 

of actual or constructive notice. The Schneiders timely appealed, complied 

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal, and the trial court issued its Rule 1925(a) 

opinion. The Schneiders raise three issues for our review: 

A. Did the trial court commit an error of law or an abuse of 

discretion by granting summary judgment as Defendant had 

destroyed or withheld relevant evidence necessitating that the

matter be submitted to a jury?

B. Did the trial court commit an error of law or an abuse of 

discretion by granting summary judgment in favor of 

Defendant as the Court relied exclusively on oral testimony?

C. Did the trial court committed [sic] an error of law and abuse 

of discretion by granting summary judgment in favor of 

Defendant?

Appellants’ brief at 4 (unnecessary capitalization omitted).
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All of the Schneiders’ issues challenge the trial court’s grant of 

summary judgment and the dismissal of their claims. The following 

principles inform our review. “[S]ummary judgment is appropriate only in 

those cases where the record clearly demonstrates that there is no genuine 

issue of material fact and that the moving party is entitled to judgment as a 

matter of law.” Truax v. Roulhac, 126 A.3d 991, 996 (Pa.Super. 2015) 

(quoting Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). 

In ruling on such a motion, “the trial court must take all facts of record and 

reasonable inferences therefrom in a light most favorable to the non-moving 

party” and “resolve all doubts as to the existence of a genuine issue of 

material fact against the moving party.” Id. "Where the non-moving party 

bears the burden of proof on an issue, he may not merely rely on his 

pleadings or answers in order to survive summary judgment.” Babb v. Ctr. 

Cmty. Hosp., 47 A.3d 1214, 1223 (Pa.Super. 2012) (citations omitted). 

“[F]ailure of a non-moving party to adduce sufficient evidence on an issue 

essential to his case and on which he bears the burden of proof establishes 

the entitlement of the moving party to judgment as a matter of law.” Id. 

On appeal, this Court 

may reverse a grant of summary judgment if there has been an 

error of law or an abuse of discretion. But the issue as to

whether there are no genuine issues as to any material fact 

presents a question of law, and therefore, on that question our 

standard of review is de novo. This means we need not defer to 

the determinations made by the lower tribunals. 
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Truax, supra at 996 (quoting Weaver v. Lancaster Newspapers, Inc., 

926 A.2d 899, 902-03 (Pa. 2007)). “To the extent that this Court must 

resolve a question of law, we shall review the grant of summary judgment in 

the context of the entire record.” Id. at 903. 

Thus, our responsibility as an appellate court is to determine 

whether the record either establishes that the material facts are 

undisputed or contains insufficient evidence of facts to make out 

a prima facie cause of action, such that there is no issue to be 

decided by the fact-finder. If there is evidence that would allow a 

fact-finder to render a verdict in favor of the non-moving party, 

then summary judgment should be denied.

Id., (quoting Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa.Super. 

2011)) (citations omitted).

This is a premises liability case. It is undisputed that Mrs. Schneider 

was a customer of Giant at the time of the fall, and that business visitors are 

invitees and entitled to the highest duty of care. “The landowner is under an 

affirmative duty to protect a business visitor not only against known dangers 

but also against those which might be discovered with reasonable care.”

Emge v. Hogosky, 712 A.2d 315, 317 (Pa.Super. 1998) (citation omitted). 

“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 or reasonable care would 

discover the condition, and should realize that it 

involves an unreasonable risk 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
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(c) fails to exercise reasonable care to protect them 

against the danger.

Campisi v. Acme Mkts., 915 A.2d 117, 119 (Pa.Super. 2006); see also 

Restatement (Second) of Torts § 343. 

Thus, in order to recover in a slip and fall case in a store, a plaintiff 

bears the burden of proving that the owner knew, or with the exercise of 

reasonable care, should have known, of the existence of the harmful 

condition. Where the storeowner created the harmful condition, he is 

deemed to have actual or constructive notice of the condition. Zito v. Merit 

Outlet Stores, 647 A.2d 573, 574-75 (Pa.Super. 1994). Where the nonmoving party bears the burden of proof of a contested fact, but fails to 

produce sufficient evidence, summary judgment is properly granted. 

Pa.R.A.P. 1035.3(d); Ertel v. The Patriot News, 674 A.2d 1038, 1042 (Pa. 

1996). The trial court granted summary judgment after finding that the 

Schneiders failed to introduce sufficient evidence that Giant created the 

hazard or had actual or constructive notice of the condition. 

The Schneiders allege first that summary judgment should not have 

been entered because Giant withheld or destroyed relevant video evidence 

of the incident recorded on surveillance equipment located in the front of the 

store. Specifically, they complain that although Giant retained and provided 

video from one camera angle commencing at 4:40 p.m. and the other 

camera angle from 4:55 p.m., both of which show the fall, Giant’s failure to 

preserve the entire video constituted spoliation of the evidence and that 
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sanctions are appropriate.1 The sanction they propose is that summary 

judgment be reversed and the matter remanded. 

“‘Spoliation of evidence’ is the non-preservation or significant 

alteration of evidence for pending or future litigation.” PTSI, Inc. v. Haley, 

71 A.3d 304, 315 (Pa.Super. 2013) (quoting Pyeritz v. Commonwealth of 

Pennsylvania, 32 A.3d 687, 692 (Pa. 2011)). Where it is determined that 

a party has proceeded to alter or dispose of relevant evidence, trial courts 

have the discretion to impose sanctions against the spoliator. PTSI, Inc., 

supra at 315. In determining what sanction is appropriate, the court 

weighs factors such as the degree of fault of the spoliator, the prejudice to 

the opposing party, and whether there are lesser sanctions that will serve as 

a deterrent to the spoliator’s conduct while avoiding substantial unfairness to 

the opposing party. Id. at 316. 

However, we do not reach the spoliation question as the Schneiders 

did not file a motion to compel or seek sanctions for spoliation in the trial 

court. Thus, they failed to preserve this issue for purposes of this appeal.2 

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1

 The video captured from one camera angle depicted the checkout area for 

the fifteen minutes preceding Mrs. Schneider’s fall. 

2

 One of the sanctions authorized for spoliation includes a jury instruction 

permitting the jury to draw a negative inference that evidence not produced 

would have been unfavorable to the party who failed to produce it.

However, since spoliation was not raised in the trial court as either a motion 

or a defense to summary judgment, the trial court did not decide whether 

spoliation occurred. 
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See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”). Furthermore, even if we 

were to treat the Schneiders’ spoliation claim as an argument in opposition 

to summary judgment, it is waived pursuant to Pa.R.C.P. 1035.3. In 

Lineberger v. Wyeth, 894 A.2d 141, 147 (Pa.Super. 2006), we held that to 

the extent that prior case law allowed presentation of new arguments in 

opposition to summary judgment, “it stands in derogation of Rules 1035.2 

and 1035.3.” The non-moving party must raise all defenses or grounds for 

relief before the trial court as we are an error-correcting court and may not 

reverse where the trial court was not given an opportunity to consider the 

argument. On either basis, the claim is waived. 

The Schneiders’ second issue fares no better. They allege that the 

trial court erred in making credibility determinations based solely on oral 

testimony in the form of depositions. In addition, the Schneiders complain 

that the trial court disregarded the inferences favorable to them that could 

be drawn from the surveillance video. 

Preliminarily, we note that the factual predicate for the Schneiders’ 

argument is not supported by the record. The trial court did not consider

only oral testimony; it also viewed the surveillance video depicting the 

incident. Furthermore, the Schneiders, the non-moving party, proffered Ms. 

Regalis’s deposition testimony and urged the court to find her testimony that 

she could not recall the incident to be incredible. Moreover, the prohibition 
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against relying solely upon oral testimony in deciding a motion for summary 

judgment is generally referred to as the Nanty-Glo rule. See Nanty-Glo v. 

American Surety Co., 163 A. 523 (Pa. 1932). The rule only precludes 

summary judgment “where the moving party relies exclusively on oral

testimony, either through testimonial affidavits or deposition testimony, to 

establish the absence of a genuine issue of material fact except where the 

moving party supports the motion by using admissions of the opposing party

or the opposing party's own witness.” Lineberger, supra at 149 (quoting 

First Philson Bank, N.A. v. Hartford Fire Ins. Co., 727 A.2d 584, 587 

(Pa.Super. 1999)) (emphasis added). That did not occur herein. 

Moreover, we find the video surveillance tape, which depicted the 

following, to be most instructive. In the moments preceding the fall, Ms. 

Regalis, the attendant charged with supervising the self-checkout area 

inspecting that area for spills and hazards,

3 was shown surveilling the area 

and using a towel to wipe up spills on the equipment and floors. Mrs. 

Schneider approached the checkout with groceries in her arms, her right foot 

slipped, and her left knee went down and hit the floor. Mrs. Schneider 

quickly righted herself, and walked over to Ms. Regalis. As she was talking 

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3 The store manager testified about the clean sweep program. A Giant 

employee would travel hourly through the store looking for spills and 

hazards, and scan in his whereabouts. It did not include the checkout area 

as the self-checkout attendant was responsible for inspecting and cleaning 

that area. 
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to Ms. Regalis, Mrs. Schneider simultaneously pointed with her right hand 

and turned her head in the direction of the spill. Only, then, after being 

prompted, did Ms. Regalis look beyond her to the area of the spill. 

The Schneiders contend that the trial court should have inferred Ms. 

Regalis’ prior knowledge of the spill from the fact that she looked in its 

direction prior to being told of its location. Giant counters that the video 

shows that Mrs. Schneider looked and pointed out the area where the spill 

occurred to Ms. Regalis before Ms. Regalis looked in that direction. Giant 

directs our attention to Sellers v. Twp. of Abington, 106 A.3d 679, 690 

(Pa. 2014), where the plaintiffs’ version of the events was contradicted by 

in-car camera footage from a police vehicle. The trial court granted 

summary judgment in the defendant’s favor based on the video, and the 

plaintiffs accused the trial court of intruding into the jury’s fact-finding 

realm. Our Supreme Court disagreed. It embraced the rationale of the 

United States Supreme Court in Scott v. Harris, 550 U.S. 372, 380 (2007), 

that where video evidence contradicts the non-moving party’s version of 

events, the court should not adopt that party’s version of facts for purposes 

of ruling on a summary judgment. The Sellers Court concluded that, 

“witness accounts seeking to contradict an unambiguous video recording do 

not create a triable issue of fact.” Sellers, supra at 380. 

Herein, the video, which did not include audio, did not flatly contradict 

Mrs. Schneider’s testimony, but added additional information. While we 
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assume that for purposes of summary judgment that Mrs. Schneider did not 

tell Ms. Regalis where the spill was located, the video confirms that she 

pointed to the area and turned her head and looked in the direction of the 

spill. Only then did Ms. Regalis follow her indication and look towards the 

area of the spill. Thus, the video evidence undercuts the basis for drawing 

any inference of prior knowledge or notice. 

Mrs. Schneider presented no evidence as to how long the clear liquid 

was present on the floor before she fell. We agree with the trial court that, 

“a jury could at most speculate concerning when the spill took place or how 

long the liquid was on the floor.” Trial Court Opinion, 1/8/17, at 15. The 

Schneiders offered no direct evidence that the hazard was created by Giant 

employees or equipment from which notice could be imputed to Giant. 

Evidence that a soda case located near the area of Mrs. Schneider’s fall 

subsequently was relocated, without more, would not support any 

reasonable inference that it was the origin of the clear liquid puddle. In 

sum, there was no evidence from which the factfinder could reasonably 

conclude that Giant knew or should have known of the dangerous condition 

with the exercise of reasonable care. 

Since the evidence failed to demonstrate any genuine issue of material 

fact that would preclude the entry of summary judgment based on the lack 

of knowledge or notice, we affirm the trial court’s grant of summary 

judgment. 
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Order affirmed. 

Judge Platt joins the memorandum.

Judge Lazarus files a concurring dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/14/18