2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-30-2010

Ann Corrado v. Super Fresh Food Market, Inc.

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1133

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Recommended Citation

"Ann Corrado v. Super Fresh Food Market, Inc." (2010). 2010 Decisions. Paper 531.

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NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_______________ 

No. 10-1133 

_______________ 

ANN CORRADO; AUGUSTINE CORRADO, HUSBAND AND WIFE, 

Appellants 

v. 

SUPER FRESH FOOD MARKET, INC. 

_______________ 

On Appeal from the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civil Action No. 2-08-cv-01905) 

District Judge: Honorable Jan E. Dubois 

_______________ 

Submitted Under Third Circuit LAR 34.1(a) 

September 21, 2010 

_______________ 

Before: MCKEE, Chief Judge, AMBRO, and CHAGARES, Circuit Judges

(Opinion filed: September 30, 2010) 

_______________ 

OPINION 

_______________ 

AMBRO, Circuit Judge

 Ann and Augustine Corrado appeal the District Court’s grant of Super Fresh Food 

Markets’ (“Super Fresh”) motion for summary judgment on their negligence claim. 
Specifically, they challenge the Court’s conclusion that Super Fresh did not have 

constructive notice that one or more blueberries fell to the floor of its grocery store, 

causing Ann Corrado to slip and fall. For the reasons set forth below, we affirm. 

I. Background 

 In July 2006, the Corrados stopped at a grocery store owned by Super Fresh. They 

were en route to their son’s house for dinner and had decided to purchase a fruit bowl to 

bring with them. Ann Corrado entered the store and proceeded to the produce section. 

After making her selection, she walked back through the produce section toward the 

checkout counter, where she slipped and fell backwards after stepping on a blueberry, 

injuring her left knee. The fall occurred within five feet of a display of blueberries in 

plastic “clamshell” packaging. 

 In April 2008, the Corrados filed a complaint against Super Fresh in the Eastern 

District of Pennsylvania. After the parties completed discovery, Super Fresh filed a 

motion for summary judgment. The District Court granted Super Fresh’s motion. It held 

that the Corrados had failed to show sufficient evidence that Super Fresh had actual or 

constructive notice of the presence of blueberries on the floor of the produce department 

and thereby breached its duty of care. The Corrados filed a timely notice of appeal. We 

agree with the District Court, and thus affirm. 

II. Jurisdiction 

 The District Court had diversity jurisdiction over this case under 28 U.S.C. § 

1332. We have jurisdiction over this appeal under 28 U.S.C. § 1291. 

 We review the decision to grant a motion for summary judgment de novo, reading 

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all facts in the light most favorable to the non-moving party. Facenda v. N.F.L. Films, 

542 F.3d 1007, 1013 (3d Cir. 2008). 

 Although the Corrados brought suit in the Eastern District of Pennsylvania, we 

apply Delaware law to this case.1

 

III. Discussion 

 Super Fresh argues that the Corrados have failed to make a prima facie case for 

negligence because they presented no evidence that Super Fresh had actual or 

constructive notice that a dangerous condition existed on store premises. We agree. 

 To prevail on a negligence claim under Delaware law, the Corrados must prove 

that (1) Super Fresh owed them a duty of care, (2) it breached that duty, and (3) Ann 

Corrado’s injury was caused by the breach. Halchuck v. Williams, 635 F. Supp. 2d 344, 

346 (D. Del. 2009). Super Fresh is responsible for only those injuries caused by “defects 

or conditions of which [it] had actual notice or which could have been discovered by such 

reasonable inspection as other reasonably prudent storekeepers would regard as 

necessary.” Howard v. Food Fair Stores, New Castle, Inc., 57 Del. 471, 476 (1964). 

 The crux of the dispute between the parties is whether the Corrados have 

 

1 As the District Court noted, federal courts exercising diversity jurisdiction must apply 

the conflicts-of-law rules of the forum state. See On Air Entm’t Corp. v. Nat’l Indem. 

Co., 210 F.3d 146, 149 (3d Cir. 2000). Under Pennsylvania conflicts-of-law rules, we 

must consider, as a threshold inquiry, whether an “actual or real conflict [exists] between 

the potentially applicable laws.” Powers v. Lycoming Engines, 328 F. App’x 121, 125 

(3d Cir. 2009). The District Court determined that, because several factors weighed in 

favor of applying Delaware law and the parties both argued for the same, Delaware law 

should apply. Neither party contested the application of Delaware law on appeal and we 

find no fault with the reasoning of the District Court. 

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presented “more than a scintilla” of evidence that Super Fresh had constructive notice 

that blueberries were on the floor of the produce department. See Saldana v. Kmart 

Corp., 260 F.3d 228, 232 (3d Cir. 2001).2

 

 First, the Corrados argue that they have presented sufficient evidence that Super 

Fresh had constructive notice of the existence of blueberries on the produce section floor. 

We disagree. As the District Court pointed out, there is no evidence in the record of 

when the blueberries fell on the floor. There is also no evidence of prior falls caused by 

slipping on fallen produce. Indeed, the Corrados have failed to introduce any evidence, 

other than Ann Corrado’s fall itself, to indicate that Super Fresh’s policy requiring clerks 

to make continuous, ongoing inspections of the produce floor was ineffective at keeping 

the store reasonably safe. We agree with the District Court that this does not meet the 

“more than a scintilla” standard forth in Saldana, 260 F.3d at 232. 

 Second, the Corrados argue that the existence of fruit on the produce floor is a 

“recurring or common” occurrence and thus, under Hazel v. Delaware, 953 A.2d 705 

(Del. 2008), Super Fresh should be presumed to have had notice of the fallen blueberries. 

Again, we disagree. 

 In Hazel, Janice Hazel slipped and fell in the frozen food aisle of a grocery store. 

Id. at 707. She identified two possible sources of the water that allegedly caused her to 

fall: (1) frost on a wooden pallet containing frozen food near the spot where she fell, and 

 

2 The Corrados do not contend that Super Fresh had actual notice of the fallen 

blueberries. It does not dispute that the Corrados have presented sufficient evidence that 

Ann Corrado’s fall resulted from stepping on one or more blueberries in the produce 

department and that her injury was caused by her fall.   

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(2) condensation from ice cream that a clerk was stocking into the store freezers after 

having brought the ice cream from the back of the store and through the aisle in a 

shopping cart. Id. Based on this evidence, the Court held that Hazel made a sufficient 

showing that the defendant grocery store should have been aware that there was water on 

the aisle floor. Id. at 710-11. It cited two cases to support the proposition that the 

spilling of water on the floor during frozen food deliveries and restocking was a 

“recurring incident or common occurrence.” Id. at 711 n.11 (citing Barrett v. Red Food 

Stores, No. 01-A-019108CV00302, 1992 WL 33891 (Tenn. Ct. App. Feb. 26, 1992); 

Ruppel v. Kroger Co., No. Civ. A. 3:99CV00115, 2000 WL 33232321 (W.D. Va. Dec. 

20, 2000)). The Hazel court reasoned that, because both activities had occurred just prior 

to Hazel’s accident and both were known by the store to cause slippery conditions, she 

had shown sufficient evidence for a reasonable jury to conclude that the grocery store 

was negligent in failing to take precautions to protect customers from injury. Id. at 711. 

 The District Court here was correct in distinguishing Hazel. The Corrados have 

not submitted any evidence that some event known by Super Fresh to cause fruit to fall 

had occurred prior to her injury. See Hazel, 953 A.2d at 711. All that occurred prior to 

Ann Corrado’s fall was her own journey through the produce section to reach the fruit 

bowls. No evidence shows that the passage of customers through the produce section 

regularly caused fruit to fall to the floor. Thus, the Corrados are not entitled to a 

presumption that Super Fresh had notice of the fallen blueberries. 

 Because the Corrados have failed to present sufficient evidence that Super Fresh 

had actual or constructive notice that blueberries had fallen to the floor of the produce 

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section, we hold that the District Court did not err in granting summary judgment in favor 

of Super Fresh. 

* * * * * 

 For the reasons stated above, we affirm the judgment of the District Court.