Lowery v. TJX Companies, Inc. et al

Filing 63

ORDER AND REASONS: IT IS ORDERED that VH Group, L.L.C. and Covington Specialty Insurance Company's 45 motion for summary judgment is GRANTED. IT IS FURTHER ORDERED that TJX Companies, Inc. and Zurich American Insurance Company's 47 motion for summary judgment is GRANTED IN PART, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 9/5/2017. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DOROTHY LOWERY

CIVIL ACTION

VERSUS

NUMBER: 16-14182

TJX COMPANIES, INC., ET AL

SECTION: “B”(1)

ORDER AND REASONS
Before the Court are two motions for summary judgment.
First is “VH Group, L.L.C. and Covington Specialty Insurance
Company’s Motion for Summary Judgment.” Rec. Doc. 45. On August
16, 2017, Plaintiff Dorothy Lowery filed a notice of non-opposition
to this motion. Rec. Doc. 53.
Second is the “Motion for Summary Judgment Filed by the TJX
Companies, Inc. and Zurich American Insurance Company.” Rec. Doc.
47. Plaintiff timely filed an opposition memorandum. Rec. Doc. 52.
Defendants then requested, and were granted, leave to file a reply
memorandum. Rec. Doc. 57. For the reasons discussed below,
IT IS ORDERED that VH Group, L.L.C. and Covington Specialty
Insurance Company’s motion for summary judgment (Rec. Doc. 45) is
GRANTED.
IT IS FURTHER ORDERED that TJX Companies, Inc. and Zurich
American Insurance Company’s motion for summary judgment (Rec.
Doc. 47) is GRANTED IN PART.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY

1

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.
In her complaint, Plaintiff alleged 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 ¶ 5.1 She is asserting
claims under the Louisiana Products Liability Act (“LPLA”) for
failure to warn, design defect, and construction or composition
defect, as well as under Louisiana Civil Code articles 2315 and
2317. Id. at ¶¶ 7, 11.
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”); Vietnam Housewares; and unidentified parties as
Defendants. Rec. Doc. 33 at ¶ 2.

1

There was some dispute as to whether or not the table at issue was the table
later identified by and in the possession of TJX. See Rec. Doc. 42. In accordance
with the parties’ arguments and for the purposes of the instant motions for
summary judgment, the Court will assume that the table in TJX’s possession was
the table involved in the underlying incident. See Rec. Doc. 45-2 at 2 n.4, 3
n.8.

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.
A. IS TJX LIABLE UNDER THE LOUISIANA CIVIL CODE?
Under Louisiana law, the plaintiff in a negligence action
must prove “by a preponderance of the evidence the following five
elements:

1) duty of care owed by the defendant to the plaintiff;

2) breach of that duty by the defendant; 3) cause-in-fact; 4) legal
causation; and 5) damages to the plaintiff caused by that breach.”
Boudreaux v. Bollinger Shipyard, 15-1345, p. 21 (La. App. 4 Cir.
6/22/16);

197

So.

3d

761,

773-74

(citations

omitted).

More

specifically, “[w]hen an individual is injured as a result of an
unreasonably

dangerous

condition

existing

on

a

landowner’s

property, he can recover damages relying on either [Louisiana Civil
Code article 2315], which is the basis of general negligence
liability, or [article 2317], which provides for a strict liability
theory of recovery.” Amest v. City of Breaux Bridge, 01-1034, p.
1 (La. App. 3 Cir. 12/12/01); 801 So. 2d 582, 584 (quoting LeJeune
3

v. Riviana Foods, 97-1091, p. 2 (La. App. 3 Cir. 2/18/98); 707 So.
2d 1038, 1039, writ denied, 98-0749 (La. 5/1/98); 718 So. 2d 418).
Article 2315 provides that “[e]very act whatever of man that causes
damage to another obliges him by whose fault it happened to repair
it.” LA. CIV. CODE art. 2315. On the other hand, article 2317
provides that “[w]e are responsible, not only for the damage
occasioned by our own act, but for that which is caused by . . .
the things which we have in our custody.” LA. CIV. CODE art. 2317.
In 1996, the Louisiana legislature added article 2317.1, which
provides that “[t]he owner or custodian of a thing is answerable
for damage occasioned by its . . . defect, only upon a showing
that he knew, or in the exercise of reasonable care, should have
known of the . . . defect which caused the damage, that the damage
could have been prevented by the exercise of reasonable care, and
that he failed to exercise such reasonable care.” LA. CIV. CODE art.
2317.1.
Thus, under either article 2315 or 2317, “the plaintiff first
has the burden of proving:

(1) the property which caused the

damage was in the custody of the defendant; (2) the property was
defective because it had a condition that created an unreasonable
risk of harm to persons on the premises; and, (3) the defect in
the property was a cause-in-fact of the resulting injury.” Amest,
801 So. 2d at 584 (quoting LeJeune, 707 So. 2d at 1040). As to the
second element, “the defect mu[st] be of such a nature as to
4

constitute

a

dangerous

condition

which

would

reasonably

be

expected to cause injury to a prudent person using ordinary care
under the circumstances.” Jordan v. Hickman, 39,519, p. 4 (La.
App. 2 Cir. 4/6/05); 899 So. 2d 830, 833, writ denied, 05-1066
(La. 6/17/05); 904 So. 2d 712 (quoting Durmon v. Billings, 38,514,
p. 7 (La. App. 2 Cir. 5/12/04); 873 So. 2d 872, 877, writ denied,
04-1805 (La. 10/29/04); 885 So. 2d 588). A defect will not be
“inferred simply because an accident occurred” and “where a risk
of harm is obvious, universally known and easily avoidable, the
risk is not unreasonable.” Jordan, 899 So. 2d at 833-34 (citing
Carroll v. Holt, 36,615, pp. 4-5 (La. App. 2 Cir. 12/11/02); 833
So. 2d 1194, 1197-98).
Ultimately, to determine if the defendant “failed to exercise
reasonable care” or “acted unreasonably,” the court may consider
the “Learned Hand formula” promulgated by Judge Hand in United
States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947). Myers
v. Dronet, 01-5, p. 14 (La. App. 3 Cir. 6/22/01); 801 So. 2d 1097,
1109. This formula “prescribes the amount of caution which a
particular occurrence requires a person to take” and requires
consideration of (1) the likelihood that the thing will cause
injury; (2) the seriousness of any resulting injury; and (3) the
burden imposed on the defendant to avoid the risk. Id. (citation
omitted).

5

TJX and Zurich argue that Plaintiff cannot show that TJX (1)
breached a duty to provide adequate seating; or (2) owed a duty to
protect Plaintiff from any risk associated with using the table to
support her weight. Rec. Doc. 47-1 at 4. Specifically, Defendants
note that there were two red-topped benches at the end of the
aisles in the shoe department, a bench at the entrance of the
store, and two benches at the entrance to the dressing rooms. Rec.
Docs. 47-4 at 30-31, 34, 65; 47-6 at 1, 3-6. They further argue
that there is no evidence that the table was defective and that
“the risk created by using the table to support her weight was .
. . patently obvious and easily avoidable,” thereby precluding
liability under articles 2315 and 2317 and the LPLA. Rec. Doc. 471 at 7-9.
Plaintiff responds that the benches provided by TJX “are not
readily apparent to shoppers.” Rec. Doc. 52 at 2. Rather, the
benches in the shoe department were “placed at the end of the shoe
racks facing a nearby wall and their width matches the width of
the shoe racks,” such that they “are not visible from large
percentages of the shoe department.” Id. The TJ Maxx Operations
Manager, Sara Martin, testified that “the benches were placed
pursuant to a corporate policy called ‘department flow.’” Id.
Because Plaintiff has not had the opportunity to take the TJX
corporate deposition and inquire into both “department flow” and
how often customers try on shoes outside the shoe department, she
6

requests additional time to conduct discovery under Federal Rule
of Civil Procedure 56(d). Id. at 2-3; see also Rec. Doc. 52-2 at
¶¶ 3-4. Citing to the Learned Hand test, Plaintiff argues that
this additional discovery could help determine the likelihood of
injury and whether or not the risk of harm outweighed any burden
imposed on TJX. Rec. Doc. 52 at 4. Plaintiff also requests the
opportunity to depose TJ Maxx personnel who may have information
regarding how often customers try on shoes outside the shoe
department and notes that she “has commissioned a photographer to
take pictures of the shoe department . . . .” Id. Finally, she
reminds

the

Court

that

the

discovery

deadline

is

not

until

September 25. Id. at 3; see also Rec. Doc. 29 at 1.
In their reply memorandum, TJX and Zurich argue that Plaintiff
has failed to show that the table was defective or to allege that
additional

discovery

will

yield

evidence

that

the

table

was

defective. Rec. Doc. 54-2 at 5. Thus, they reason that Plaintiff
is limiting her claim and seeking only to hold TJX liable for
allegedly providing inadequate seating. Id. They respond that
Plaintiff failed to explain how additional discovery would be
material to whether or not TJX breached an alleged duty to provide
additional or more visible seating, whether any resulting risk was
avoidable, and/or whether any alleged breach caused her injuries.
Id. at 6, 8.

7

Plaintiff has failed to clearly describe the basis for her
claims against TJX. Based on her response memorandum, the Court
surmises, like Defendants, that Plaintiff is no longer claiming
that the table was defective. Even though she stated in her
statement of contested and uncontested material facts that she
disputes Defendants’ statement that “Plaintiff has offered no
evidence that the table was defective,” (Rec. Docs. 47-2 at ¶ 20;
52-1 at ¶ 20), she presented no evidence of a defect in the table
and failed to explain how additional discovery could lead to a
genuine issue of material fact regarding any alleged defect.
Further, Plaintiff did not oppose the motion for summary judgment
filed by VH Group and Covington, which essentially argued that
Plaintiff could not prove that the table was defective under the
LPLA. Rec. Docs. 45, 53. Accordingly, the only remaining issue is
whether or not Defendants provided adequate seating to customers.
This claim appears to arise under article 2315 and Louisiana’s
negligence law. Thus, Plaintiff must prove that (1) TJX owed a
duty to provide adequate seating, (2) TJX breached that duty, and
(3) TJX’s breach was both a cause-in-fact and (4) a legal cause of
(5) Plaintiff’s injuries. See, e.g. Boudreaux, 197 So. 3d at 77374. In her response, Plaintiff essentially requests additional
time to discover facts to address the duty and breach elements.
Even though she does not address the remaining elements of her
claim, she suggests that additional discovery will create a genuine
8

issue of material fact as to duty and breach because (1) TJ Maxx
personnel have seen other customers lean on furniture to try on
shoes; (2) the photographs will demonstrate that the available
benches are hidden from view; and (3) the burden of providing
additional seating is outweighed by the risk to customers. Rec.
Doc. 52 at 2-3.
At this stage, it is unclear if the requested discovery will
yield these facts and the Court is unsure if such facts would
create a genuine issue warranting trial. However, because it is
possible that they may create such an issue, the discovery deadline
is not until September 25, 2017,2 Plaintiff has requested relief
under Rule 56(d), and such relief “should be liberally granted”
[Culwell v. City of Ft. Worth, 468 F.3d 868 at 871 (5th Cir. 2006)],
we will deny without prejudice Defendants’ motion for summary
judgment

on

Plaintiff’s

negligence

claim

regarding

adequate

seating.
B. IS TJX LIABLE UNDER THE LPLA?
In her Rule 56(d) opposition, Plaintiff did not address
whether or not she was pursuing any LPLA claims against TJX. For

2

Defendants also argue that Plaintiff has not diligently pursued her claims.
Rec. Doc. 54-2 at 7. Specifically, even though several potential witnesses were
identified in an April 13, 2017 deposition, Plaintiff waited until August 11,
2017 (three days after Defendants filed their motion for summary judgment), to
notice those witnesses for deposition. Id. (citations omitted). Plus, Plaintiff
waited until the same day to request a corporate deposition of TJX. Id. However,
the simple fact that discovery does not close until September 25, 2017
undermines Defendants’ argument that Plaintiff did not diligently pursue her
claims.

9

the reasons discussed below, any such claims are dismissed with
prejudice.
The LPLA provides that a product is unreasonably dangerous
if:
(1)

(2)
(3)

(4)

The
product
is
unreasonably
dangerous
in
construction or composition as provided in R.S.
9:2800.55;3
The product is unreasonably dangerous in design as
provided in R.S. 9:2800.56;4
The product is unreasonably dangerous because an
adequate warning about the product has not been
provided as provided in R.S. 9:2800.57;5 or
The product is unreasonably dangerous because it
does not conform to an express warranty of the

3

A product has a manufacturing defect “if, at the time the product left its
manufacturer’s control, the product deviated in a material way from the
manufacturer’s specifications or performance standards for the product or from
otherwise identical products manufactured by the same manufacturer.” §
9:2800.55. “Accordingly,
a claimant must demonstrate not only what a
manufacturer’s specifications or performance standards are for a particular
product, but how the product in question materially deviated from those
standards so as to render it ‘unreasonably dangerous.’” Welch v. Technotrim,
Inc., 34,355, p. 8 (La. App. 2 Cir. 1/24/01); 778 So. 2d 728, 733, writ not
considered, 01-0512 (La. 4/20/01); 790 So. 2d 12, writ denied, 01-0512 (La.
6/15/01); 793 So. 2d 1232 (citations omitted).
4 A product is defectively designed “if, at the time it left the manufacturer’s
control, there existed an alternative design that was capable of preventing the
claimant’s damage and the likelihood and gravity of that damage outweighed the
burden on the manufacturer of adopting the alternative design and any adverse
effect on the product’s utility.” Gladney, 911 So. 2d at 370; § 9:2800.56.
Significantly, “Louisiana law does not allow a fact finder to presume an
unreasonably dangerous design solely from the fact that injury occurred.”
McCarthy v. Danek Med., Inc., 65 F. Supp. 2d 410, 412 (E.D. La. 1999) (citation
omitted). In some cases, if the plaintiff fails to present “expert or technical
evidence to support the contention that the design was defective or to establish
an alternative design,” there is no triable issue of fact for the jury. Id.
(citations omitted).
5 A product is unreasonably dangerous due to an inadequate warning “if, at the
time the product left its manufacturer’s control, the product possessed a
characteristic that may cause damage and the manufacturer failed to use
reasonable care to provide an adequate warning of such characteristic and its
danger to users and handlers of the product.” § 9:2800.57(A). The statute
further provides that an “adequate warning” refers to “a warning or instruction
that would lead an ordinary reasonable user . . . to contemplate the danger in
using . . . the product and either to decline to use . . . the product or, if
possible, to use . . . the product in such a manner as to avoid the damage for
which the claim is made.” § 9:2800.53(9).

10

manufacturer about the product as provided in R.S.
9:2800.58.
§ 9:2800.54(B). Plaintiff bears the burden of proving the existence
of a defect by a preponderance of the evidence. § 9:2800.54(D);
Gladney v. Milam, 39,982, p. 7 (La. App. 2 Cir. 9/21/05); 911 So.
2d 366, 370 (citations omitted).
“[T]he LPLA does not provide a cause of action against
‘sellers,’ but only against manufacturers.” Tantillo v. Cordis
Corp., No. 04-2005, 2004 WL 2212113, at *1 (E.D. La. Sept. 30,
2004) (citing LA. REV. STAT. ANN. § 9:2800.52 (providing that the
statute

“establishes

the

exclusive

theories

of

liability

for

manufacturers for damage caused by their products”)). According to
the statute, “manufacturer” “means a person or entity who is in
the business of manufacturing a product for placement into trade
or commerce.” LA. REV. STAT. ANN. § 9:2800.53(1). It also means:
(a)

(b)

(c)

(d)

A person or entity who labels a product as his own
or who otherwise holds himself out to be the
manufacturer of the product.
A seller of a product who exercises control over or
influences
a
characteristic
of
the
design,
construction or quality of the product that causes
damage.
A manufacturer of a product who incorporates into
the product a component or part manufactured by
another manufacturer.
A seller of a product of an alien manufacturer if
the seller is in the business of importing or
distributing the product for resale and the seller
is the alter ego of the alien manufacturer.

Id.

11

TJX and Zurich argue that Plaintiff cannot prove that TJX
manufactured the table. Rec. Doc. 47-1 at 9-10. In her statement
of material facts, Plaintiff did not dispute the statement that
“TJX is a retail seller of goods.” Rec. Doc. 47-2 at ¶ 21; 52-1 at
¶ 21. Thus, the Court must assume that Plaintiff is not pursuing
claims against TJX as a manufacturer of the table at issue.
Nonetheless, a non-manufacturing seller may be held liable if
(1) the product sold was defective; (2) the seller had actual or
constructive knowledge that the product was defective; and (3) the
seller failed to declare the defect. Alexander v. Toyota Motor
Sales, U.S.A., 13-0756, pp. 3-4 (La. 9/27/13); 123 So. 3d 712, 714
(citing Reaux v. Deep S. Equip. Co., 02-1571, pp. 5-6 (La. App. 4
Cir. 2/5/03); 840 So. 2d 20, 23-24, writ denied, 03-1165 (La.
6/20/03); 847 So. 2d 1237); see also Ayala v. Enerco Grp., Inc.,
569 F. App’x 241, 245 (5th Cir. 2014); Tunica-Biloxi Indians of
La. v. Pecot, No. 02-1512, 2006 WL 273604, at *3 (W.D. La. Feb. 2,
2006) (citations omitted). “There is no duty, however, for a nonmanufacturer seller to inspect a product prior to sale to determine
the possibility of inherent vices or defects” and “a seller has no
independent duty to warn or instruct purchasers in the proper use
of a product.” Zehner v. Nordskog Indus., Inc., No. 92-2508, 1992
WL 233984, at *3 (E.D. La. Sept. 2, 1992) (citations omitted).
Even

if

Plaintiff

wishes

to

hold

TJX

liable

as

a

non-

manufacturing seller, Plaintiff has presented no evidence of any
12

alleged defect or Defendants’ knowledge of such defect or argued
that additional discovery will yield a genuine issue of material
fact regarding any alleged defect or Defendants’ knowledge of any
such defect. Therefore, TJX and Zurich cannot be held liable as
manufactures or non-manufacturing sellers.
Accordingly,
IT IS ORDERED that VH Group and Covington’s motion for summary
judgment (Rec. Doc. 45) is GRANTED as unopposed. Consequently,
Plaintiff’s claims against VH Group and Covington are DISMISSED
WITH PREJUDICE;
IT IS FURTHER ORDERED that TJX and Zurich’s motion for summary
judgment (Rec. Doc. 47) is GRANTED IN PART. Any LPLA claims and
any claims that Plaintiff’s injuries resulted from some defect in
the table asserted against TJX and Zurich are DISMISSED WITH
PREJUDICE. However, the motion is denied without prejudice to reurge to the extent that the Court will allow Plaintiff additional
time to conduct discovery within existing deadlines regarding her
allegation that TJX negligently failed to provide adequate seating
to customers.
The discovery deadline in this case is September 25. Rec.
Doc. 29 at 1. Plaintiff indicated that the depositions of five
witnesses and TJX’s corporate deposition will proceed in early
September. Rec. Doc. 52 at 3. However, the scheduling order also
provides that all dispositive motions shall be filed in sufficient
13

time to permit hearing thereon no later than September 29. Rec.
Doc. 29 at 1. The Court’s corresponding motion day is September
20; accordingly, pursuant to Local Rule 7.2, TJX and Zurich would
have

to

re-urge

their

motion

for

summary

judgment

regarding

Plaintiff’s negligence claims by September 5, 2017. This does not
permit sufficient time to complete the requested depositions and
prepare a dispositive motion. Therefore, Defendants TJX and Zurich
may file a motion for summary judgment on this issue no later than
September 19, 2017 and set the motion for submission on October 4,
2017. This will provide the parties sufficient time to complete
discovery and prepare the motion and provide the Court sufficient
time to act on the motion ahead of the October 25, 2017 final
pretrial conference. When filing any such motion, TJX and Zurich
should explicitly refer to this Order and Reasons and the Court’s
directives regarding the submission of the motion.
TJX and Zurich’s third-party claims against VH Group and
Covington are based on Plaintiff’s allegation that her injuries
resulted from a defect in the table. Rec. Doc. 14 at ¶ V. Because
this Court has issued summary judgment in favor of VH Group,
Covington, TJX, and Zurich regarding Plaintiff’s claims of a
defective table, it appears that TJX and Zurich’s third-party
claims against VH Group and Covington are no longer viable.

The

parties should take the appropriate action to dismiss these claims

14

and otherwise terminate VH Group and Covington as parties to this
action.
Nonetheless, it is unclear whether Plaintiff is attempting
to

serve

Defendant

Vietnam

Housewares,

whether

she

seeks

to

maintain her claims against Vietnam Housewares, or whether any
such

claims

Housewares
whether

include

manufactured

these

claims

a
a

viable

allegation

that

Vietnam

defective table. It is also unclear

would

impact

TJX’s

third-party

claims

against VH Group.
Trial is scheduled to begin in less than three months. The
parties

are

therefore

directed

to

resolve

and/or

clarify

these issues within 14 days from date of this order.
New Orleans, Louisiana, this 5th day of September, 2017.

__________________________________
SENIOR UNITED STATES DISTRICT JUDGE

15