IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CIVIL DIVISION GENE C. BENCKINI, Plaintiff VS. Case No. 2013-C-2613 GIANT FOOD STORES, LLC, Defendant Appearances: Plaintiff, pro se George B. Faller, Jr., Esq. for Defendant January 14, 2014 Douglas G. Reichley, J. Memorandum Opinion Plaintiff, George Benckini, and Defendant, Giant Food Stores, LLC, have filed crossmotions for summary judgment. After careful consideration of the parties briefs and arguments, the Court grants summary judgment in favor of Defendant and against Plaintiff. Factual History According to Plaintiff s complaint and Plaintiff s deposition, on August 12, 2011, between 3:30 and 4:00 p.m. Plaintiff was a patron of the Giant Food Store located at 216 Fairmont Street, Coopersburg, Lehigh County, Pennsylvania. Plaintiff asserts he entered the store and while he was inside, a Giant employee allegedly stared at his sexual organ and later groped him near the checkout area. Plaintiff alleges the purported assailant was a transgender person named either Tommy or Falicia, and described the individual as being approximately five foot eight inches tall with long black hair and weighing between 150 and 180 pounds. 1
During his deposition, Plaintiff testified he entered the Giant Food Store to shop. The employee approached him and stared at his groin. Later, while Plaintiff was checking out and walking with his grocery bag, the employee allegedly walked across his path and groped him. Plaintiff described the contact as [j]ust a second, you know what I mean. But I know for a couple of days, my testicle hurt, because it was a - - it was a stiff grip. (Deposition of Gene Benckini, October 22, 2014, at 33.) Plaintiff asserted that after the incident, he went to the manager s office to lodge a complaint. He left after being informed that the manager was out of the office. On August 15, 2013, Plaintiff drafted a letter with an account of the assault and mailed it to the Giant store. Plaintiff s deposition indicates that he did not seek any treatment, medical or psychological, for the assault. There is no evidence of record indicating that similar incidents have occurred before or since at the Giant location. According to Defendant s Motion for Summary Judgment, in the summer of 2011, the Giant store at issue had a transgender employee. The store manager, David Kane, provided an affidavit indicating that at the time of the alleged incident, the transgender employee was approximately twenty years old and had black hair. However, an affidavit offered by Christianna Benner, Giant Food Stores Coordinator Claims Risk Management/Safety, indicated that the employee s last day at Giant was July 28, 2011. Accordingly, the transgender individual was not employed by Giant on the date and time in question, and there was not a transsexual or transgender employee working at Defendant s premises. 2
Procedural History On January 30, 2014, Plaintiff filed a pro se complaint alleging negligence, breach of responsibility, carelessness, and breach of duty. Defendant filed a motion seeking to dismiss the matter as frivolous pro se litigation on February 25, 2014, but Defendant withdrew that motion on April 1, 2014. Defendant filed an Answer on May 14, 2014. 1 On November 3, 2014, following the discovery period, Defendant filed the instant Motion for Summary Judgment. On November 10, 2014, Plaintiff filed a request for an extension of time to file his own summary judgment motion, to which Defendant objected. On December 1, 2014, Plaintiff filed his Motion for Summary Judgment. On December 4, 2014, the Court entered an order permitting Plaintiff to file his Motion for Summary Judgment despite the deadline for filing having lapsed and over Defendant s objection. Oral argument on the cross-motions for summary judgment was conducted on January 13, 2014 before the undersigned. At the close of the argument, the matter was taken under advisement. This Opinion follows. Discussion The matter before the Court is on cross-motions for summary judgment. The applicable standard of review in this matter is: [W]here there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non[- ]moving party to adduce sufficient evidence on an issue essential to his case and 1 Plaintiff sought to file an Amended Complaint in August of 2014, but never requested leave of Court do to so. He then requested leave of Court, but the pleadings were closed and the discovery period had already lapsed. Additionally, there were no additional cognizable claims in the proffered Amended Complaint. Accordingly, the Court denied that request. The operative complaint is therefore the one filed on January 30, 2014. 3
on which it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citation omitted). Plaintiff s complaint sounds in negligence. Plaintiff essentially alleges he was groped by a person he identifies as a transsexual and that it was Defendant s responsibility to prevent this alleged contact, to post warnings of the abnormal criminal actions of this transsexual s personal interest in male customers in [order] to prevent any farther [sic] misconduct by their employee and prevent any mental injury to future customers, (Complaint 15), and failure to provide a safe environment to shoppers without being physically assaulted by abnormal employees. (Complaint 17.) 2 While Plaintiff titles these actions as negligence and breach of responsibility, the actual theory of liability upon which his complaint is founded is premises liability based on his status as a business invitee. An invitee is someone who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. Restatement (Second) of Torts 332 (1965). As a general rule, possessors of land are not liable to invitees for physical harms caused to them by activities or conditions on the land whose danger is known or obvious to the invitee unless the possessor should anticipate the harm despite such knowledge or obviousness. Restatement (Second) of Torts, 343A. A danger is deemed obvious when both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment. Carrender v. 2 Plaintiff s complaint does not allege vicarious liability of Giant for the torts of its employee; rather, it alleges Giant knew or should have known of this transsexual s criminal conduct and allowed it to happen. (Complaint 11.) While Defendant argued that it would not be vicariously liable in its motion and brief, the Court notes that because vicarious liability was not pled, it need not be addressed. 4
Fitterer, 469 A.2d 120, 123-24 (Pa. 1983) (citation omitted). For a danger to be known, it must not only be known to exist, but... also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated. Id. at 124. While the question of whether conditions on land were in fact open and obvious is generally a question of fact for a jury to decide, it may be decided by a court where reasonable minds could not differ as to the conclusion. Id.; see also Long v. Manzo, 682 A.2d 370, 373 (Pa. Super. 1996) (citation omitted) (issues of plaintiff s knowledge of condition creating unreasonable risk of harm usually for jury to decide, but may be decided by court where reasonable minds could not differ). The most significant consideration is that a plaintiff must prove the condition about which he complained resulted from the defendant s direct negligence or that the defendant had sufficient constructive notice of the defect to have enabled it to correct the defect. Hess v. Sun Ray Drug Co., 127 A.2d 699, 701 (Pa. 1956). In this case, considering all of the evidence in the light most favorable to Plaintiff, Plaintiff cannot sustain his burden of proof in this matter. Plaintiff s allegations amount to assertions without evidentiary support. In his complaint and subsequent filings, Plaintiff essentially asserts that a transsexual employee of Giant assaulted him by groping him. However, the evidence fails to substantiate these claims. First, Plaintiff alleges that the purported assault occurred on August 12, 2011 between 3:30 and 4:00 p.m. However, Giant s records indicate that the transgender employee in question was not working that day. In fact, the records demonstrate that this employee was no longer employed by Giant Food Stores as of July 28, 2011. Second, Plaintiff has the burden of demonstrating that Giant knew or should have known of the purported sexually aggressive behaviors of this employee. Defendant served Plaintiff with 5
interrogatories inquiring, inter alia, what facts Plaintiff claimed existed prior to the alleged incident on August 12, 2011. A review of Plaintiff s answers to those interrogatories reveals that Plaintiff is unable to point to any facts in support of his allegation that Giant was or otherwise should have been on notice of any misconduct. For example, in response to Defendant s Interrogatory No. 12 which requested any information supporting Plaintiff s contention that the alleged assailant had aggressive feelings of intent to make physical contact in a sexual manner, and Giant was aware of those facts, Plaintiff responded: Well it does not take much time for a transsexual working for months at the Giant store for everyone to realize that the person obviously had strong interests [in] males, [obviously] the managers had employee information in every day work place to be aware of what the hell was going on here, no manager could be that stupid or blind since all managers do not have their heads in the hopper all day long, surely other employees had complainted (sic) of he/she interests (sic) and obvious actions that offended other employees that is not a joking matter to them, certainly I can t believe that there is no complaints by other employees work place complaints with no jokes in the Giant store files and we will demand that this information be disclosed in discovery. (Defendant s Motion for Summary Judgment, Exhibit B.) Likewise, in Plaintiff s answer to Defendant s question requesting all information supporting his contention that Giant failed to educate its employees in providing a safe environment to its shoppers, Plaintiff responded, Its (sic) quite obvious that the Giant store managers ignored the fact that they knew this he/she transsexual employee was an [assault] waiting to happen and were stupid not to educate every employee to report any illegal activity by this transsexual (sic), its (sic) obviously clear that over [months] and months of seeing the interest in other males by the Giant store employees, but did nothing to prevent an incidents (sic), its (sic) obviously clear that the Giant store were criminal minded managers to criminally alter the original videos by destroying exculpatory evidence (sic) on Oct,20,2011. (sic) (Defendant s Motion for Summary Judgment, Exhibit E.) 6
Plaintiff has failed to identify a single prior incident which would have had the effect of putting Giant on constructive notice of any danger posed by the employee in question. The records offered by Giant support the fact that there were no prior incidents. Plaintiff s proof amounts to accusations and speculation about what Giant s management staff should have or otherwise must have known, but he did not offer any evidence from which a trier of fact could find that Giant was on constructive notice of the alleged risks posed by its employee. Plaintiff s answer to the second interrogatory referenced above made note of an incident on October 20, 2011 that took place at the same Giant location. That incident involved Plaintiff having inappropriate contact with a female Giant employee. Plaintiff was charged with and convicted of summary harassment, for which he was sentenced to not less than ten nor more than ninety days in Lehigh County Prison. That incident relates to the case at bar because in Plaintiff s summary judgment motion, he makes extensive reference to the October 20, 2011 incident and asserts that Giant altered surveillance footage of Plaintiff from that date, leading to his conviction. In fact, many of the exhibits attached to the complaint in the instant case are in support of that assertion. Whatever occurred between the parties in relation to the October 20, 2011 is a matter within the jurisdiction of the criminal court. Plaintiff has not demonstrated a connection between the two incidents to make the latter relevant to the August 12, 2011 incident about which he complains herein. Rather, he asserts without evidentiary support that Giant altered the footage in retaliation against Plaintiff for him writing a letter complaining about the August 12, 2011 incident. This is insufficient to render the October 20, 2011 incident relevant to the case at bar. Plaintiff s case lacks a legal foundation. He makes numerous allegations of improper conduct against Defendant, and he alleges that Defendant s managerial staff had to be aware of 7
the risks allegedly posed by the transsexual employee in question. However, the unrebutted evidence of record demonstrates that the employee about whom Plaintiff made the within allegations was no longer employed by Giant and had not worked at the Giant store for over two weeks prior to the incident. Furthermore, Plaintiff has failed to offer any evidence from which Giant could reasonably be said to be on notice of the threat, if any, posed by the employee while that individual was still employed. Accordingly, the Court finds that Plaintiff cannot make out any of his claims under the law. Summary judgment is therefore appropriately granted in favor of Defendant. Conclusion For the foregoing reasons, Plaintiff has failed to offer any evidence in support of his allegations against Defendant. There is no genuine issue of material fact, and Plaintiff s unsupported assertions do not constitute evidentiary support. Therefore, summary judgment must be granted in favor of Defendant and against Plaintiff. The within matter is dismissed with prejudice. By the Court: Douglas G. Reichley, J. 8