A Philadelphia grocer and a Delaware Valley bottler of Canada Dry products have avoided a federal slip-and-fall trial in a case where an injured shopper said the defendants had actual and constructive notice of the puddle of clear liquid in which she claims she slipped.

The U.S. Court of Appeals for the Third Circuit, in a nonprecedential opinion, declined to connect a Canada Dry pallet, spotted in the vicinity of where Marion Felix fell minutes before she fell, and the fall itself.

The store’s manager, Mike Roth, “speculated” the pallet was leaking, but testified he never actually saw a leak and that he was not aware of any liquid on the floor.

The six or seven “dust balls” in the puddle — to the plaintiff, a sign of its age — did not preserve the case of Felix v. GMS.

First, the unanimous panel declined to find the store or bottler had “actual notice” of the spill. In other words, there was no showing the store had been warned.

“Contrary to Felix’s assertions, Roth’s testimony provides no indication that any representative of the grocery store was aware of the puddle on the floor,” Judge Joseph A. Greenaway Jr. wrote for the three-judge panel. “His speculation about the Canada Dry pallet is just that — speculation; he neither observed the liquid coming from the pallet nor had any knowledge that a spill was caused in that way.”

Additionally, testimony from a Canada Dry employee, Sean Early, that he spilled but then cleaned up an orange soda near where Felix fell did not create enough of a factual dispute to greenlight the case.

“Although Early admitted to spilling a can of Sunkist soda at an earlier time, his testimony that he cleaned up the spill with paper towels and Windex cleaning solution, combined with the fact that the liquid he spilled was orange and not clear, render this insufficient evidence of notice on behalf of Canada Dry,” Greenaway added.

As for constructive notice, a showing that a party should have been aware of a condition, the panel said Felix’s arguments failed.

Felix had argued three things pointed to a showing of constructive notice. First, Felix said the manager’s testimony that there were no set schedules for scanning for spills meant the store failed to use reasonable care. However, the panel said she confused the lack of a set schedule with the lack of a policy to clean spills, period.

Then, there was her assertion that the dust in the liquid puddle implied the puddle was not fresh.

The court has apparently rejected the argument that dust is somehow probative of constructive notice where there is no evidence offered about how much dust there was, how long it would have taken to accumulate, or whether it was picked up off the floor by the offending liquid or the force of the fall.

In this case, Felix had indicated there were six or seven dust balls in the water, about a quarter of a pencil eraser in size each.

“However, the presence of the dust in the puddle after Felix’s fall still ‘does not inform any decision as to the amount of time the [liquid] was on the floor before the fall,’” Greenaway said, quoting the court’s 2001 decision in Saldana v. Kmart.

Finally, Felix circled back to the manager’s testimony about the pallet that had been sitting near where she fell.

But Greenaway disagreed that prevented the case from being decided as a matter of law.

“Similarly, the fact that the Canada Dry pallet was in the same area before the fall does not imply any form of notice because there is no evidence indicating that the pallet was leaking, had liquid near it or had otherwise caused the liquid puddle on the floor,” Greenaway said.

Lastly, Felix pled the U.S. District Court for the Eastern District of Pennsylvania failed in denying her request for a spoliation inference based on the store’s failure to provide security camera footage showing her fall.

The lower court said there was no evidence of destruction of evidence.

Greenaway mentioned that some of the store’s cameras are stationary, while others move to cover different angles and areas.

The District Court noted Felix had not provided evidence that the cameras had, in fact, captured the fall, though they did capture her post-fall.

David B. Sherman and Ryan Briskin of Solomon, Sherman & Gabay represented Felix.

Sherman said there was a “sufficient nexus” between the pallet and the spill for the case to head to a jury.

“Respectfully, I think the court substituted its own judgment for that which a jury should have determined,” Sherman said.

Sherman said the panel’s reasoning puts an onerous burden on a plaintiff if there is evidence that there was more than just a spill. In this case, according to Sherman, that was the dust.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the 10-page opinion in Felix v. GMS, PICS No. 12-1973, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •