J-A06045-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARIE WASNETSKY, 

ADMINISTRATOR OF THE ESTATE OF 

JOSEPH CHARLES WASNETSKY 

Appellant

v.

QUINN'S MARKET, QUINN'S MARKET 

OF ARCHBALD, INC., KRENITSKY'S 

OF BLAKELY, INC., KRENITSKY'S 

SUPERMARKET CORPORATION, 

WILLIAM KRENITSKY AND JOSEPH 

QUINN

 Appellees

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1160 MDA 2018

 

Appeal from the Order Entered June 15, 2018

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

No(s): 2014-04437

BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED APRIL 08, 2019

In this premises liability case, Marie Wasnetsky (Wasnetsky), as the 

administrator of her husband’s estate, appeals from an order of the Court of 

Common Pleas of Lackawanna County (trial court) granting summary 

judgment for defendants/Appellees (collectively “Quinn’s”). Wasnetsky 

contends that the trial court erred in ruling that the evidence posed no triable 

question of fact as to whether a dangerous condition on Quinn’s premises

caused a fatal injury to her husband (the decedent). We affirm.
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I.

On the date of the incident, the decedent was shopping for produce on 

Quinn’s premises. Without warning, the decedent suddenly slipped backwards 

and fell. His head struck the linoleum floor causing severe head injuries. 

Wasnetsky filed a wrongful death action alleging that Quinn’s was negligent in 

failing to protect the decedent from a dangerous condition that she “believed 

to be water or juice.” Trial Court Opinion, 6/15/18, at 2.

The only witness to the accident was another shopper, Cindy Wilson, 

who had been speaking with the decedent moments before he fell. She 

testified that a moment before falling, the decedent had walked a few steps 

away from the produce area while holding a bag of fruit. His legs suddenly 

“went up in the air” as he fell backwards. Id. at 3. Upon seeing that the 

decedent was seriously injured, she directed store employees to call an 

ambulance.

Ms. Wilson was concerned that the decedent had “slipped on something” 

but testified that the area was free of such hazards: “There was nothing that 

I could see on that floor. There were mats on the floor, but not where he 

walked, not where he tripped. It was just that linoleum floor.” Id. at 4. She 

emphasized that “there was no liquid on the floor.” Id. Ms. Wilson looked 

specifically for “water or juice” that may have fallen to the floor from a nearby 

corn shucking station, but she “didn’t see anything like that.” Id.
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Additionally, Ms. Wilson inspected the decedent’s shoes and found no 

trace of a slippery foreign substance. She noted, though, that the decedent 

was wearing a “boat shoe or a loafer” type of footwear which had a “smooth 

finish” on the bottoms of the soles. Id. She testified that “there was no grip 

on the bottom of his shoe” and that it “looked like a slippery type of shoe.”

Id.

The store manager, Michele Malewics and the produce manager, Richard 

Turner, Jr., also inspected the floor around where decedent fell and did not

observe any substance on the floor other than the decedent’s blood. There 

was a new security system with 12 functional cameras but none of those were

directed at the produce area where decedent fell. There was an additional 

“tinted camera” directed at the produce area which was installed by the 

previous premises owner, but this “old, out-of-service, security system . . . 

was never functional during Quinn’s . . . operation of the store.” Id. at 6.

Wasnetsky presented no evidence that this camera was in working order at 

the time of the accident.

To establish that the decedent slipped on a slick substance, Wasnetsky 

relied on the reports of two experts in bio-mechanical analysis. Both experts, 

Dr. Angela DiDomenico and Dr. Brian Benda, opined that the decedent slipped 

due to a substance on Quinn’s floor, and that Quinn’s was negligent in failing 

to protect it customers from that slick surface. However, neither expert could 

identify what kind of substance could have caused the accident. Indeed, Dr. 
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Benda concluded his report by emphasizing that “it is impossible to describe 

the specific state of the floor, that is, what material was on the floor, at that 

time and how that state contributed [to the accident.]” Id. at 15.

Quinn’s moved for summary judgment and the motion was granted.1

The trial court relied on the testimony of the three eyewitnesses regarding the 

lack of a slick substance on the floor where the decedent fell. Further, the 

trial court found that the two expert reports were speculative and inadmissible 

because the experts did not base their opinions on the case facts. The trial 

court ruled that the two reports were insufficient to raise a triable issue

regarding the existence of a dangerous condition. Finally, the trial court 

rejected Wasnetsky’s claim that Quinn’s withheld or destroyed video evidence 

of the accident, finding that “there were no security cameras positioned in 

[the relevant] area of the store.” Id. at 18. This appeal followed.

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1 Summary judgment is proper when a case presents no genuine issue of 

material fact and the moving party is entitled to relief as a matter of law.

Summers v. Certaineed Corp., 997 A.2d 1152, 1159 (Pa. 2010). The 

moving party is entitled to summary judgment if the non-moving party has 

failed to carry its burden of adducing sufficient evidence on an essential 

element of its case. Id. On review, the record must be construed in the light 

most favorable to the non-moving party. Id. An order granting summary 

judgment must be affirmed unless the trial court committed an error of law or 

abuse of discretion when entering it. Id.; see also Pyeritz v. 

Commonwealth, 32 A.3d 687, 692 (Pa. 2011).
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II.

In a negligence action, the plaintiff must prove that the defendant “owed 

a duty of care to the plaintiff, that duty was breached, the breach resulted in 

the plaintiff’s injury, and the plaintiff suffered an actual loss or damages.” 

Merlini ex rel. Merlini v. Gallitzin Water Authority, 980 A.2d 502, 506 

(Pa. 2009). A land possessor is liable for physical harm caused to an invitee

only if it failed to exercise reasonable care to protect the invitee from a

condition which involved an unreasonable risk of harm, but which the invitee 

would not reasonably be aware of or protect himself against. See Estate of 

Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719, 722 (Pa. 

1997); see also Restatement (Second) of Torts § 343.

An invitee must prove that the possessor either contributed to the 

condition or had constructive notice of it. See Swift, 690 A.2d at 722. 

Whether a possessor had constructive notice depends on the case facts, but 

an important factor is how long the condition existed prior to the accident. 

See Neve v. Insalaco’s, 771 A.2d 786, 791 (Pa. Super. 2001). A plaintiff 

may prove the existence of a dangerous condition on a premises

circumstantially, but such evidence must “so preponderate in favor of the 

offeror’s conclusion that it outweighs any other evidence and reasonable 

inferences therefrom which are inconsistent therewith.” Houston v. Canon 

Bowl, Inc., 278 A.2d 908, 910 (Pa. 1971).
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A.

Wasnetsky contends that there was enough direct and circumstantial 

evidence of a dangerous condition to overcome Quinn’s motion for summary 

judgment. She argues that the decedent fell near a corn shucking station that 

could have made the floor wet, and that according to Ms. Wilson, the decedent 

was steady on his feet prior to his fall. In her testimony, Ms. Wilson recounted 

that the decedent’s feet slipped out from under him, causing his legs to 

"project up in the air" and resulting in the side of his head smashing to the 

ground. From this Wasnetsky contends that her bio-mechanical experts could 

properly opine that the fall was caused by contaminants on Quinn’s floor and

the bottom of the decedent’s shoes. However, the evidence in this case does

not establish that there was anything “slippery” on the floor and the experts’ 

opinions to the contrary are purely speculative.

As the trial court found, the three individuals who were present at the 

scene testified that there was no slick substance on the floor which could have 

caused the accident:

The decedent was unable to offer any testimony regarding his fall 

due to his untimely demise . . . The only witnesses with any 

personal and admissible knowledge of the condition of the floor, 

Cindy Wilson, Michele Malewics, and Richard Turner, Jr., uniformly 

testified that there was no liquid or other substance on the floor, 

the bottom of the decedent’s shoes, or the decedent’s clothing. 

As a result, even after the record is examined in a light most 

favorable to Wasnetsky as the non-moving party, it is devoid of 

any direct or circumstantial evidence of a dangerous condition on 

[Quinn’s] floor at the time of the decedent’s fall. Nor does the 

record contain any proof of [Quinn’s] actual or constructive notice 

of any such condition.
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1925(a) Opinion, at 2. Ms. Wilson had also noted that the decedent was 

wearing a “slippery type of shoe” which had a “smooth finish” on the bottoms 

of their soles, giving him little to no traction with the ground. Id.

The above testimony supported the trial court’s ruling that Wasnetsky’s

two experts did not raise an issue of fact as to the existence of a dangerous 

condition on Quinn’s premises.2 Under Pennsylvania Rule of Evidence 703, an 

expert’s opinion must be “based on facts or data in a particular case” and “an 

opinion based on mere possibilities is not competent evidence.” That is, the 

opinion cannot be based on “conjecture or surmise.” Pa.R.E. 703; see also

Helpin v. Trustees of University of Pennsylvania, 969 A.2d 601, 617 (Pa. 

Super. 2009). An expert may form an opinion with factual assumptions, but 

for the opinion to be admissible, such an assumption must have a basis in the 

record. See Collins v. Hand, 246 A.2d 398, 404 (Pa. 1968).

The two experts in this case conceded in their respective reports that 

they could not identify the cause of the accident. The experts speculated that 

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2 The exclusion of the two experts’ reports is subject to an abuse of discretion 

standard:

The admission or exclusion of evidence, including the admission 

of testimony from an expert witness, is within the sound discretion 

of the trial court. Thus our standard of review is very narrow; we 

may only reverse upon a showing that the trial court clearly 

abused its discretion or committed an error of law.

Crespo v. Hughes, 167 A.3d 168, 181 (Pa. Super. 2017) (citations omitted).
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the decedent slipped on a slick substance without referring to any specific 

evidence to that effect. Notably, neither expert even acknowledged the critical

testimony of an eyewitness that the decedent’s shoes had a “smooth finish.”

The experts also disregarded the testimony of three eyewitnesses that there 

was no slippery substance on Quinn’s floor which could have caused the 

decedent’s accident. These reports and the opinions contained in them were

not competent evidence that Quinn’s negligently maintained its premises or 

that an unreasonably dangerous condition on the premises caused the 

decedent to fall. The trial court correctly concluded that the experts’ reports 

were insufficient to overcome Quinn’s motion for summary judgment.

B.

Finally, the trial court properly denied Wasnetsky’s request for relief on 

spoliation grounds.

3 Wasnetsky asserted that to sanction the withholding or 

destruction of video evidence of the accident, Quinn’s should be precluded 

from prevailing on summary judgment. See Schroeder v. Commonwealth 

Dept. of Transportation, 710 A.2d 23, 27 (Pa. 1998) (courts have broad 

authority on how to sanction a party for withholding or destroying evidence).

As explained by the trial court, the “only evidence in the record pertaining to 

that claim reflects that no such videotape was ever obtained, let alone 

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

evidence for pending or future litigation.” Pyeritz v. Commonwealth, 32 

A.3d 687, 692 (Pa. 2011).
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destroyed, since there were no [functional] security cameras positioned in 

[the produce] area of the store.” Trial Court Opinion, 7/17/18, at 18. The 

absence of such a recording does not warrant any sanction on Quinn’s.

In sum, summary judgment was proper here because Wasnetsky failed 

to carry her burden of adducing any evidence that a dangerous condition on 

Quinn’s premises caused the accident. Even viewing the admissible evidence 

in the light most favorable to Wasnetsky, there is no direct or circumstantial 

evidence that a hazard existed. Several witnesses testified that there was no 

slick substance on Quinn’s floor. Conversely, there is competent evidence that 

the decedent himself wore shoes which afforded him little to no traction with 

the ground. Wasnetsky simply did not raise a triable issue of material fact as 

to all the elements of her negligence action, so the order of summary 

judgment in Quinn’s favor must stand.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/08/2019