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No Duty Owed to Business Invitee Distracted by Product Displays Says Eastern District

March 1, 2019

Defense Digest, Vol. 25, No. 1, March 20196

by Michael S. Miller, Jr., Esq.*

Key Points

  • It is not “reasonable conduct” for a business invitee to pay attention to product shelves rather than the floor in front of her.
  • A business invitee must provide evidence that a clearly visible defect was somehow blocked from view.
  • A lack of safety policies and procedures is not relevant to the question of whether actual or constructive notice of a defect existed.


In the United States District Court for the Eastern District of Pennsylvania, Senior Judge Robert F. Kelly recently granted summary judgment in a premises liability action where the defendant argued that the substance on which the plaintiff fell was an open and obvious condition and the defendant had no notice of the alleged hazardous condition. In Thomas v. Family Dollar Stores of Pa, LLC 2018 U.S. Dist. LEXIS 196569 (E.D.Pa. Nov. 19, 2018), Eleanor Thomas went to a Family Dollar store in Philadelphia on June 27, 2016, to purchase laundry and dish detergent. She walked down an aisle on the left side of the store, made a right turn, and proceeded up the detergent aisle. As she rounded the corner of the aisle, she encountered a “thick, yellow substance” on the floor next to a broken glass bottle upon which she fell.

Thomas admitted that, as she was walking through the store, she was looking at the store’s shelves rather than at her feet. She did not recall there being anything in front of the substance she fell on that prevented her from seeing it. She alleged she suffered cervical sprains and strains, cervical disc herniations, disc bulges, radiculopathy, posttraumatice cephalgia and other injuries as a result of the incident.

Thomas argued that Family Dollar was negligent in breaching its duty of care to keep its premises free and clear of any hazardous conditions. Family Dollar argued that the alleged condition was open and obvious and that it owed the plaintiff no duty of care.

Senior Judge Robert F. Kelly granted Family Dollar’s motion for summary judgment and found that Thomas could not establish that Family Dollar owed her a duty of care or that Family Dollar breached any such duty. In doing so, the court rejected Thomas’ argument that it was reasonable conduct for her to be paying attention to the product on the shelves rather than the floor in front of her. The court stated:

‘It is hornbook law in Pennsylvania that a person must look where he is going.’ Graham v. Moran Foods, Inc., No. 11-239, 2012 U.S. Dist. LEXIS 69667, 2012 WL 1808952, at *4 (E.D. Pa. May 18, 2012) (quoting Villano v. Sec. Sav. Ass’n, 268 Pa. Super. 67, 407 A.2d 440, 441 (Pa.Super. Ct. 1979)) (rejecting argument that business invitee was distracted from hazardous condition because of in-store sale signs). ‘[J]ust as drivers are not relieved of responsibility for accidents if they are distracted by billboards, customers are not relieved of the responsibility of watching for obstacles while they walk, even if they are distracted by sales displays.’ Id. (quoting Campisi v. Acme Mkts., Inc., 2006 PA Super 368, 915 A.2d 117, 121 (Pa. 2006)).

Thomas, 2018 U.S.Dist. LEXIS 196569, at *7-8.

The court stated that the substance posed an obvious condition that would have been readily apparent to a reasonable person exercising normal perception, intelligence and judgment:

Thomas would have easily avoided the ‘thick yellow substance’ if she had been exercising reasonable care and paying attention to where she was walking. Thomas provides no evidence that the substance was obstructed from view and admits that she had her eyes ‘trained on the merchandise’ rather than on her surroundings.

Id., at *9.

The court found that because Thomas had not paid the requisite attention to her surroundings, Family Dollar owed no duty to her and could not be liable for her injuries. The court also found that Thomas’ negligence claim failed because she could not establish that Family Dollar had the requisite notice of the condition to breach a duty of care.

Thomas did not argue that Family Dollar either created the hazardous condition or had actual notice of it. Instead, she argued that Family Dollar was negligent in allowing the condition to exist due to a lack of safety policies, procedures and training in its stores. According to her, Family Dollar failed to exercise reasonable care by not inspecting the premises or having adequate safety policies.

The court found that Thomas’ argument was insufficient to establish that Family Dollar had constructive notice of the spill. It held that under Pennsylvania law, a plaintiff is required to provide some proof as to the length of time a spill existed on the floor to establish constructive notice. Thomas, supra, 2018 U.S. Dist. LEXIS 196569, *9 (citations omitted). The court explained:

Though perhaps not a ‘bright-line rule,’ without any evidence regarding the length of time the spill existed, it is immaterial when Family Dollar conducted an inspection because a ‘[d]efendant cannot be liable for negligence by failing to identify and clean up a spill only a short time after its occurrence.’

Id., at *12 (citations omitted).

The court also found unpersuasive Thomas’ argument that because the spill had “a brown ring around it,” it must have existed for an extended period of time. The court concluded that no reasonable jury could find that Family Dollar had constructive notice of the spill prior to Thomas’ fall and, without such notice, Family Dollar could not have breached a duty of care to her.

The Thomas decision highlights and reinforces several concepts commonly cited by defense attorneys practicing in the area of premises liability. It remains to be seen whether the Eastern District will continue to be receptive to commonly made defense arguments concerning lack of duty and notice in premises cases with similar fact patterns. However, the Thomas decision will certainly be a tool for defense practitioners in premises cases where duty and notice are at issue.

*Michael is an associate in our King of Prussia, Pennsyvlania office. He can be reached at 610.354.8465 or



Defense Digest, Vol. 25, No. 1, March 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact

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