Marina Livshitz v. Designer Brands Inc

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 23-3082 _____________ MARINA LIVSHITZ; MIKHAIL LIVSHITZ, W/H, Appellants v. DESIGNER BRANDS, INC; DSW, INC _____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:22-cv-03355) District Judge: Hon. John F. Murphy _____________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 3, 2024 _____________ Before: SHWARTZ, MATEY, and McKEE, Circuit Judges.

(Filed: January 13, 2025) _____________ OPINION* MATEY, Circuit Judge.

Marina Livshitz went shopping at a shoe store where she alleges that she slipped and fell on a clear and odorless substance on the restroom floor. She sued Designer Shoe Warehouse and its parent company, Designer Brands, Inc. (collectively, “DSW”), for negligence in Pennsylvania’s Court of Common Pleas of Philadelphia County.1 DSW removed the case and the District Court granted DSW’s motion for summary judgment because Livshitz failed to identify evidence that DSW had constructive notice of the substance allegedly on the restroom floor.2 We see no error in that decision.

Premises liability under Pennsylvania law3 requires evidence that the defendant “had a hand in creating the harmful condition” or “had actual or constructive notice of such condition.” Est. of Swift v. Ne. Hosp. of Phila., 690 A.2d 719, 722 (Pa. Super. Ct. 1997). A business has “constructive notice of a dangerous condition” when it “should have known” of the condition because it was “apparent upon reasonable inspection.”

Commonwealth, Dep’t of Transp. v. Patton, 686 A.2d 1302, 1305 (Pa. 1997).4 Livshitz argues that summary judgment was improper because there is a disputed question of material fact as to whether DSW acted reasonably when it failed to discover the allegedly dangerous condition on the floor. But even if such a question of fact exists, it is not material.

“A disputed fact is ‘material’ if it would affect the outcome of the suit as determined by the substantive law.” Doe v. Luzerne Cnty., 660 F.3d 169, 175 (3d Cir. 2011) (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992)).

Here, the dispute over whether DSW exercised reasonable care is not material because Livshitz failed to identify evidence that DSW had a duty to protect her from the alleged hazard in the restroom. See Neve v. Insalaco’s, 771 A.2d 786, 790–91 (Pa. Super. Ct. 2001).5 In other words, because Livshitz failed to produce or identify evidence that “the dangerous condition [was] apparent upon reasonable inspection,” Gurnari v. Luzerne Cnty. Hous. Auth., 911 A.2d 236, 239 (Pa. Commw. Ct. 2006), the care that DSW exercised to discover it is irrelevant.6 See McDevitt v. Terminal Warehouse Co., 450 A.2d 4 See David v. Pueblo Supermarket of St. Thomas, 740 F.2d 230, 233–34 (3d Cir. 1984) (“Slip and fall cases involving foreign substances on . . . floors . . . present the plaintiffs with a difficult task of proof.”).

991, 999 n.6 (Pa. Super. Ct. 1982) (“Actual or constructive notice of a defect is a prerequisite to holding a possessor of land liable for bodily injury sustained by a business invitee.”).7 *** For these reasons, we will affirm the District Court’s order granting summary judgment for DSW.

Kravco Simon Co., which relied on the Restatement (Second) of Torts to deny summary judgment notwithstanding a lack of evidence of constructive notice. 111 A.3d 1191, 1196–97 (Pa. Super. Ct. 2015) (citing Restatement (Second) of Torts § 343 cmt. b (1965)). But the Pennsylvania Supreme Court has cautioned that “if any relevant section of the Restatement (Second) of Torts does not incorporate the requirement” of notice, it “will interpret it as requiring notice, if possible.” Patton, 686 A.2d at 1305. And when such an interpretation is not possible, Pennsylvania courts must “conclude that” the Restatement provision “does not comport with Pennsylvania law.” Id.