Larsen v. Speedway LLC

MEMORANDUM DECISION and ORDER On July 24, 2019, defendant Speedway, LLC (“Speedway” or “defendant”) removed plaintiffs Christopher Larsen (“Christopher”) and Sarah Larsen (“Sarah” and together “plaintiffs”)’s state law complaint for negligence to this district. At bottom, Christopher claims that he slipped and fell outside defendant’s gas station and convenience store (the “store”) due to defendant’s negligent care of its property. For her part, Sarah brings a loss of consortium claim. Between 12:41 and 12:45 p.m. on February 6, 2019, Christopher slipped and fell while walking across the driveway of a Speedway convenience store in Syracuse.¹ Dkt. 36-11, Defendant’s Statement of Material Facts (“DSMF”),

1, 3. Christopher suffered a medial malleolus fracture extending into the tibia and a “proximal spiral fracture of the fibula,” or a broken ankle and lower leg. Dkt. 39-2, Plaintiffs’ Statement of Material Facts (“PSMF”), 4. Christopher has pointed to two contributing factors to his fall: (1) the uneven pavement in Speedway’s driveway; and (2) icy conditions. Dkt. 36-2 (“Pl. Dep.”), p. 68.² As to the pavement, plaintiffs rely on two pieces of the record to establish a defect. First, Christopher testified that the pavement was “uneven” and generally a “whole mess of an area.” Id. Second, plaintiffs rely on a pre-discovery answer to an interrogatory which claimed that “upon information and belief…[Speedway] was negligent in failing to maintain the driveway in sound condition and good repair; in failing to repair or replace the deteriorated tarvia;…[and] in failing to inspect the parking lot and driveway to determine the condition it was in.” Dkt. 36-4, p. 4. There are no pictures of uneven surfaces in the record³ or expert reports detailing any failures to maintain defendant’s parking lot. By contrast, plaintiffs’ showing that there was ice on Speedway’s driveway on February 6, 2019 is more substantial. According to plaintiffs’ expert Wayne G. Mahar (“Mr. Mahar”), a forensic and broadcast meteorologist, the temperature at the store at the time of Christopher’s fall was thirty-one degrees. DSMF