Hastie, Chief Judge, Aldisert, Van Dusen, and McLaughlin, Circuit Judge. McLaughlin and Aldisert, Circuit Judges, dissenting.
The plaintiff in this negligence case was a shopper in one of the defendant's stores when she slipped, fell and sustained the injuries for which she is suing. The accident occurred in Pennsylvania and the case is in federal court solely under diversity jurisdiction.
After the trial judge had denied a defense motion for a directed verdict, the jury returned a verdict for the plaintiff in the amount of $20,000. However, on an appropriate post-judgment motion, the court set aside the verdict and entered judgment for the defendant. This appeal followed.
We have to decide whether, viewing the evidence in the light most favorable to the plaintiff and guided by applicable principles and rules of law, a jury could reasonably have imposed liability upon the defendant.
The plaintiff testified that, while walking through the store toward the display of certain goods which she wished to purchase, she slipped and fell. In her words, her "right leg went out so fast it was like greased lightning." Another witness who was walking a few feet behind the plaintiff testified that there were about five small fragments of lettuce on the floor in the area in which she fell. He said that the fragments were brown, wilted, old and one or two inches in length. He also testified that some forty minutes after the accident he observed a crushed piece of "oldish" and "brown" lettuce about the size of a fingernail adhering to the heel of plaintiff's shoe. The plaintiff testified similarly that on the floor in the area of her fall "there were pieces of lettuce leaves, the type you would have in a -- small pieces, like it would be torn up in a salad. . . . They were brown. They were yellow. They were old. They weren't fresh."
There was no evidence of any very recent sweeping or inspection of the floor.
The parties agree, as did the court below, that under Pennsylvania law the defendant could properly be found negligent and liable only if the evidence warranted a factual finding that the lettuce upon which plaintiff claims to have slipped had been on the floor long enough so that in the exercise of reasonable care the defendant's employees should have discovered and removed it. In cases of this type, the issue is sometimes stated as whether the danger-creating substance had been on the floor long enough to give "constructive notice" of its presence.
Small differences in the evidence can lead to opposite conclusions as to whether the condition of the foreign substance, alone or with other circumstances, was sufficient to support a rational inference that it had been there long enough for a reasonably careful proprietor to have discovered and removed it. Two decisions of the Pennsylvania Supreme Court involving slipping on grease spots are illustrative. In Mack v. Pittsburgh Rys. Co., 1915, 247 Pa. 598, 602, 93 A. 618, 619, the court said:
"The length of time that it [the grease spot] remained in the car was not shown by direct evidence, but the jury would have been warranted in finding that it had remained for some time, as it was covered with dust, had footmarks in it, and had been tramped over by other persons on the car, manifestly before plaintiff attempted to alight, as no person immediately preceded her to the front door."
Lanni v. Pennsylvania R.R., 1952, 371 Pa. 106, 111, 88 A.2d 887, 889, also involved a dust-covered oily spot, but in the absence of any indication that the oil had been stepped upon by others before the plaintiff, or any evidence of the time required for the dust to accumulate, the court reached a different conclusion:
"There was no evidence, facts or circumstances which were sufficient to enable a jury to reasonably and legitimately impute negligence, i.e. constructive notice of the unsafe condition. While the spot was soft and covered with dust or dirt, there were no other footprints on it except those of the plaintiff, which indicates it was of recent origin; nor is there the slightest evidence from which it could be reasonably and legitimately inferred in what period of time the dust or dirt could accumulate with or without wind in that particular locality."
Significantly, the Lanni case cites the Mack case and recognizes its authority.
Applying the teaching of these cases here, we find sufficient evidence to warrant, though certainly not to compel, a rational inference that the lettuce had been on the floor, as was said in Mack, for "some time." The lettuce was described as "old", not "fresh", "wilted", "brown" or "yellow". It was segmented into small irregular pieces. From the wilting and discoloration, a reasonable person could infer that it had been on the floor for hours. The passage of time is also suggested by the fragmentation into segments not more than an inch or two in length, for it is very unlikely that one would tear or break a lettuce leaf into such small pieces before dropping it. It is more likely that the fragmentation ...