Lowery v. TJX Companies, Inc. et al

Filing 42

ORDER AND REASONS: IT IS ORDERED that the 34 motion for summary judgment is DENIED WITHOUT PREJUDICE to re-urge if it is later discovered that the table allegedly responsible for Plaintiff's injuries was not manufactured or supplied by VH Group. Signed by Judge Ivan L.R. Lemelle on 6/27/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DOROTHY LOWERY

CIVIL ACTION

VERSUS

NO. 16-14182

TJX COMPANIES, INC., ET AL.

SECTION "B"(1)

ORDER AND REASONS
Before the Court is defendants and third-party defendants “VH
Group, L.L.C. and Covington Specialty Insurance Company’s Motion
for Summary Judgment.” Rec. Doc. 34. Defendants and third-party
plaintiffs, TJX Companies, Inc. and Zurich American Insurance
Company, timely filed an opposition memorandum. Rec. Doc. 37.
Defendants and third-party defendants then requested (Rec. Doc.
39), and were granted (Rec. Doc. 40), leave to file a reply
memorandum (Rec. Doc. 41). For the reasons discussed below,
IT IS ORDERED that the motion for summary judgment (Rec. Doc.
34) is DENIED WITHOUT PREJUDICE.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of a fall suffered by Dorothy Lowery

(“Plaintiff”) on September 7, 2015. Rec. Doc. 33 at ¶ 4. Plaintiff
was visiting a TJ Maxx store owned by Defendant TJX Companies,
Inc. (“TJX”) to try on shoes. Id. She leaned against a table for
support and “the screw/nail that was holding the table leg onto
the table bent, causing the table leg to fold under the table and
the table (along with [Plaintiff]) to fall.” Id.

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Plaintiff alleges that the table’s legs were not adequately
fastened by the table’s manufacturers, Defendants VH Group, LLC
(“VH

Group”)

and

Vietnam

Housewares

Co.,

Ltd.

(“Vietnam

Housewares”). Rec. Doc. 33 at ¶ 5. She is asserting claims under
the Louisiana Products Liability Act (“LPLA”) for failure to warn,
design defect, and construction or composition defect. Id. at ¶ 7.
Plaintiff’s

second

amended

complaint

named

TJX;

TJX’s

insurer, Zurich American Insurance Company (“Zurich”); VH Group;
VH

Group’s

insurer,

Covington

Specialty

Insurance

Company

(“Covington”); and unidentified parties as Defendants. Rec. Doc.
33 at ¶ 2.
TJX

filed

a

third-party

complaint

against

VH

Group

and

Covington, alleging that TJX purchased the table at issue from VH
Group pursuant to a Purchase Order dated February 15, 2015. Rec.
Doc. 14 at ¶ VI. TJX maintains that VH Group agreed to indemnify
and hold TJX harmless for any claims brought by third parties
arising from injuries allegedly caused by a defect in the table.
Id. at ¶ VII. Accordingly, TJX argues that VH Group is obligated
to pay the defense costs arising from this litigation. Id. at ¶
XI.
II.

THE PARTIES’ CONTENTIONS
In the instant motion, VH Group maintains that the table

identified

in

the

third-party

complaint

2

and

TJX’s

discovery

responses is not the table that Plaintiff alleges caused her
injuries. Rec. Doc. 34-2.
TJX and Zurich respond that a TJX employee identified the
table at issue as the table responsible for Plaintiff’s injuries.
Rec. Doc. 37 at 2.
III. LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate

only

interrogatories,

if
and

“the

pleadings,

admissions

on

depositions,
file,

answers

together

to

with

the

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (quoting FED. R. CIV. P. 56(c)). See also TIG Ins. Co. v.
Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A
genuine issue exists if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must point to
“portions

of

interrogatories,

‘the
and

pleadings,
admissions

depositions,
on

file,

answers

together

with

to
the

affidavits, if any,’ which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex, 477 U.S. at 323. If
and when the movant carries this burden, the non-movant must then
go beyond the pleadings and present other evidence to establish a

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genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
However, “where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence, thus
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
Under the LPLA, a product’s manufacturer may be held liable
for damages caused by a characteristic of a product that rendered
it unreasonably dangerous when the damages arose from a reasonably
anticipated use of that product. LA. REV. STAT. ANN. § 9:2800.54(A).
Thus, “proving the element of causation requires proof of exposure
to the specific product alleged to have caused or contributed to
the

plaintiff’s

injuries

and

identification

of

the

product’s

manufacturer.” Scaffidi v. Thompson-Hayward Chem., Inc., No. 943860, 1997 WL 469966, at *2 (E.D. La. Aug. 12, 1997) (citations
omitted). See also, e.g., Maldanado v. State Through Dep’t of
Transp., 618 So. 2d 537, 538-39 (La. App. 4 Cir. 1993) (granting
summary judgment in favor of the defendant where, after depositions
of

both

the

plaintiff

and

arresting

officer

were

taken,

interrogatories and requests for production and for admissions
4

were propounded, and more than three years had elapsed since the
suit was filed, the plaintiff could not offer proof as to who
manufactured the handcuffs that were used in his arrest).
During her deposition, Plaintiff testified that the table was
about as high as her hip. See Rec. Doc. 34-5 at 2, 6 (“The table
was a little higher than I think my hip”).1 The parties measured
the distance from the ground to Plaintiff’s hip and determined
that it was about thirty-five (35) inches. Id. at 7. Further,
Plaintiff testified that the table was tan or beige in color. Id.
at 2. VH Group maintains that the table sold to TJX was only
twenty-two (22) inches tall and black in color. Rec. Doc. 34-2 at
4 (citing Rec. Docs. 34-4 at 30, a picture of a round black table,
34-7, a picture showing the height of the round black table to be
approximately twenty-two inches).2
On March 30, 2017, VH Group propounded a single request for
admission. Rec. Doc. 34-6. It stated simply, “[p]lease admit the
table shown in Exhibit ‘A’ was not the one involved in the incident
which is the subject of the instant litigation.” Id. at 4. “Exhibit
A” contained a photograph of a round black table. Id. at 6.

Rec. Doc. 34-5 contains excerpts from Plaintiff’s deposition testimony. It
will be cited according to the record document page number, rather than the
deposition transcript page number.
2 The first picture was produced by TJX in response to interrogatories. TJX
identified the picture as a “[c]olor photograph[] of the table at issue taken
be Zurich . . . .” Rec. Doc. 34-4 at 10. VH Group appears to admit that the
round black table, approximately twenty-two inches tall, is a table supplied by
VH Group. See Rec. Doc. 34-2 at 4 (“The VH Group table in the possession of TJX
is black and only twenty-two inches (22”) tall”) (emphasis added).
1

5

Plaintiff failed to respond to this request for an admission. Rec.
Doc. 34-2 at 5.
Federal Rule of Civil Procedure 36(a)(3) provides that “[a]
matter is admitted unless, within 30 days after being served, the
party to whom the request is directed serves on the requesting
party a written answer or objection addressed to the matter and
signed by the party or its attorney.” Further, “[a] matter admitted
under this rule is conclusively established unless the court, on
motion, permits the admission to be withdrawn or amended.” FED. R.
CIV. P. 36(b). Thus, if a request for admission “concern[s] an
essential issue, the failure to respond . . . can lead to a grant
of summary judgment against the non-responding party.” Murrell v.
Casterline, 307 F. App’x 778, 780 (5th Cir. 2008) (citing Dukes v.
S.C. Ins. Co., 770 F.2d 545, 548-49 (5th Cir. 1985)).
According to TJX and Zurich, Yasmine Parker, a TJX employee,
“identified the round, black twenty-two inch high table . . . as
being the broken table she saw in the store after Plaintiff’s fall
on September 17, 2015.” Rec. Doc. 37 at 2 (citing Rec. Doc. 37-2,
Parker’s affidavit). Even though Parker was working in the store
on that day, she did not witness the incident; however, she states
that she “did see the customer and the table after the incident.”
Rec. Doc. 37-2 at 1, ¶ 3. She accordingly testified that “[t]he
table depicted in the photographs attached to this Affidavit . .
. is the table that was involved in the incident with a female
6

customer at the store on September 7, 2015.” Id. at 1, ¶ 5. One of
the photographs appears to show that one of the legs of the round
black table is broken. Id. at 6. TJX and Zurich further argue that
Plaintiff’s failure to respond to the request for admission should
not be used to support summary judgment against TJX and Zurich.
Id. at 5 n.23. Finally, TJX and Zurich argue that Plaintiff intends
to depose Parker, such that the instant motion for summary judgment
should be denied as premature. Id. at 5.
VH Group and Covington respond that Parker’s affidavit is not
based on personal knowledge, because she did not witness the
incident; the instant motion sought to dismiss only Plaintiff’s
claims under the LPLA against VH Group and Covington, not the
cross-claims of TJX and Zurich; and Plaintiff failed to respond to
the instant motion. Rec. Doc. 41 at 1-4.
Even though TJX and Zurich may not be the subject of the
instant motion, they clearly have an interest—if the Court grants
the motion, essentially finding that Plaintiff cannot prove that
the black, twenty-two-inch-high table was the table responsible
for her injuries, then the cross-claims filed by TJX and Zurich
are rendered moot. Therefore, the Court will consider evidence
produced by TJX and Zurich in response to the instant motion.
Under Rule 56(c)(4), an affidavit used to support or oppose
a motion for summary judgment “must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that
7

the affiant or declarant is competent to testify on the matters
stated.” Parker’s affidavit, in its current form, is problematic.
She did not witness the incident and therefore cannot competently
testify to whether or not the black table was the table responsible
for Plaintiff’s fall. Even though Parker’s conclusion that the
black table was the table “involved in the incident” is not based
on her personal knowledge, it could reasonably be based on facts
within her personal knowledge. Parker was present on the day of
the incident, so she competently testified to seeing the customer
and the black table following the purported incident. It appears
probable therefore that Parker arrived on the scene and witnessed
Plaintiff sitting on the floor next to, or otherwise near, a broken
black table. This information could have reasonably led her to
believe that Plaintiff fell after leaning on the black table and
to subsequently testify that the black table was the table “that
was involved in the incident with the female customer at the store
on September 7, 2015.”
Parker’s

affidavit

contains

sufficient

circumstantial

material to defeat summary dismissal of Plaintiff’s claims at this
time.
IV.

CONCLUSION

Accordingly,
IT IS ORDERED that the motion for summary judgment (Rec. Doc.
34)

is

DENIED

WITHOUT

PREJUDICE
8

to

re-urge

if

it

is

later

discovered that the table allegedly responsible for Plaintiff’s
injuries was not manufactured or supplied by VH Group.
New Orleans, Louisiana, this 27th day of June, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

9