Lowery v. TJX Companies, Inc. et al

Filing 81

ORDER AND REASONS: IT IS ORDERED that Defendants' 70 motion for summary judgment is GRANTED and Plaintiff's claims against Defendants are DISMISSED WITH PREJUDICE, as set forth in document. IT IS FURTHER ORDERED that Plaintiff's 65 motion for partial summary judgment is DISMISSED AS MOOT. Signed by Judge Ivan L.R. Lemelle on 10/26/2017. (jls)

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
The parties have each filed a motion for summary judgment.
The first is “Plaintiff’s Motion for Partial Summary Judgment.”
Rec. Doc. 65. Defendants, TJX Companies, Inc. and Zurich American
Insurance Company, timely filed an opposition. Rec. Doc. 69. The
second is the “Motion for Summary Judgment Filed by the TJX
Companies, Inc. and Zurich American Insurance Company.” Rec. Doc.
70. Plaintiff timely filed an opposition. Rec. Doc. 73. Defendants
then sought, and were granted, leave to file a reply. Rec. Docs.
74, 74-2.
For the reasons discussed below,
IT IS ORDERED that Defendants’ motion for summary judgment
(Rec. Doc. 70) is GRANTED and Plaintiff’s claims against Defendants
are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s motion for partial
summary judgment (Rec. Doc. 65) is DISMISSED AS MOOT.

1

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On September 7, 2015, Plaintiff Dorothy Lowery visited one of
TJX’s TJ Maxx stores to purchase a pair of shoes. Rec. Doc. 33 ¶
4. Seating was available in the shoe department and throughout the
store, but Plaintiff claims not to have been aware of the seating
locations. Rec. Doc. 70-2 ¶¶ 3, 6, 8, 11, 12; Rec. Doc. 73-1 ¶¶ 3,
6, 8, 11, 12. Instead, when Plaintiff found a pair of shoes that
she was interested in purchasing, she leaned against a table with
one hand while using her other hand to remove one of her shoes and
put on one of the new shoes. Rec. Doc. 70-2 ¶¶ 23, 25; Rec. Doc.
73-1 ¶¶ 23, 25. The table collapsed and Plaintiff fell to the
ground. Rec. Doc. 70-2 ¶ 26; Rec. Doc. 73-1 ¶ 26. Plaintiff brought
negligence and products liability claims against Defendants. Rec.
Doc. 33 ¶¶ 7-11, 14. The products liability claims were dismissed
in an earlier Order and Reasons, leaving only Plaintiff’s claim
that

“TJX

negligently

failed

to

provide

adequate

seating

to

customers.” Rec. Doc. 63 at 8, 13.
LAW AND ANALYSIS
Summary

judgment

is

appropriate

when

“the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together 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)). A genuine
2

issue of material fact 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).
When

the

movant

bears

the

burden

of

proof,

she

must

“demonstrate the absence of a genuine issue of material fact using
“competent summary judgment evidence.” Celotex, 477 U.S. at 323.
But “where the non-movant bears the burden of proof at trial, the
movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the
movant meets her burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618.
Courts analyzing a negligence claim under Louisiana state law
apply a duty-risk analysis, which asks a series of questions: “Was
a duty owed? Was the duty breached? Did the breach of duty cause
the plaintiff’s harm?” Edminson v. Caesars Entm’t Co., 177 F. Supp.
3d 972, 976 (E.D. La. 2016); see also Bufkin v. Felipe’s La., LLC,
2014-0288, p. 4-5 (La. 10/15/14); 171 So. 3d 852, 855. As a result,
a

plaintiff

can

only

prevail

on

a

negligence

claim

if

she

establishes (1) that the defendant owed her a duty, (2) that the
defendant breached that duty, (3) that the breach was a cause-in-

3

fact of her injuries, (4) that the breach was a legal cause of her
injuries, and (5) actual damages. Bufkin, 171 So. 3d at 855.
A

storeowner

who

opens

his

business

to

the

public

is

responsible for injuries caused by dangerous conditions that pose
“an unreasonable risk of harm to others.” Broussard v. State ex
rel. Office of State Bldgs., 2012-1238, p. 9 (La. 4/5/13); 113 So.
3d 175, 183-84. Louisiana courts have adopted a “risk-utility
balancing

test

to

determine

whether

. . .

a

condition

is

unreasonably dangerous[,]” such that a defendant would owe a duty
to an injured plaintiff. Bufkin, 171 So. 3d at 856. The test weighs
four factors: “(1) the utility of the complained-of condition; (2)
the likelihood and magnitude of harm, including the obviousness
and apparentness of the condition; (3) the cost of preventing harm;
and (4) the nature of the plaintiff’s activities in terms of social
utility or whether the activities were dangerous by nature.” Id.
The second factor is especially consequential because “a
defendant generally does not have a duty to protect against an
open and obvious hazard.” Broussard, 113 So. 3d at 184. As a
result, a plaintiff’s negligence claim will fail if the allegedly
dangerous condition was “open and obvious.” See, e.g., Bufkin, 171
So. 3d at 855-58. Given its potential to dispose of Plaintiff’s
claims, the second factor merits discussion before the rest of the
risk-utility test.

4

A condition is open and obvious when it is “open and obvious
to

all,

i.e.,

everyone

who

may

potentially

encounter

it.”

Broussard, 113 So. 3d at 184. “If the complained-of condition
should

be

obvious

to

all,

then

it

may

not

be

unreasonably

dangerous.” Id. at 188. In this vein, courts have held that the
danger posed by an unpaved parking lot is open and obvious to
drivers who park in the lot. See Allen v. Lockwood, 2014-1724 (La.
2/13/15); 156 So. 3d 650, 653. The danger that an obstructed view
poses to pedestrians crossing a street is open and obvious because
pedestrians

know

the

risks

inherent

to

crossing

a

street,

especially when they cannot see the cross traffic clearly. Bufkin,
171 So. 3d at 856-58. Similarly, the absence of yellow lines
separating the steps on an escalator is an open and obvious
condition because “[i]t is no secret that the steps on an escalator
move and eventually separate as they begin to go up or down” and
all riders can readily determine whether the steps on any given
escalator are demarcated by yellow stripes. Edminson, 177 F. Supp.
3d at 979.
The alleged lack of seating in the TJX shoe department is an
open and obvious condition. Plaintiff alleges that she did not see
the seating that TJX had provided in the shoe department or in
other areas of the store. Rec. Doc. 73-1 ¶¶ 3, 8. Plaintiff’s
subjective unawareness of the location of the seating in the store
is

immaterial

because,

under

Louisiana
5

negligence

law,

the

relevant question is whether any risks posed by a lack of seating
in a shoe store would have been obvious to all shoppers. See
Broussard, 113 So. 3d at 188-89.
It should be apparent to all shoppers, at least in the moment
when they decide to try on a pair of shoes, whether or not they
are seated. All shoppers should also know that trying on a pair of
shoes without first taking a seat will require balancing and
supporting oneself on one leg and then the other. The risk of
falling inherent to such a maneuver is “obvious to all” because
the vast majority of people have at some point tried on a pair of
shoes, or at the very least stood on one leg for some period of
time. Therefore, Defendant TJX owes no duty to Plaintiff with
respect to the allegedly inadequate seating in the shoe department.
See Allen, 156 So. 3d at 653; Bufkin, 171 So. 3d at 856-58;
Edminson, 177 F. Supp. 3d at 979. Because plaintiff has the burden
of proof in her negligence claim, the inability to establish the
duty element is fatal to Plaintiff’s case. See Bufkin, 171 So. 3d
at 855, 858.
Proceeding

through

the

remainder

of

the

risk-utility

balancing test produces the same outcome. The first prong calls
for

examination

of

the

social

utility

of

the

“complained-of

condition” in the TJX store. See Bufkin, 171 So. 3d at 856. The
proper arrangement of seating in a store has social value because
it prevents tripping hazards and ensures equal access under the
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requirements of the Americans with Disabilities Act. See Rec. Doc.
70-2 ¶¶ 16, 17, 29-33; Rec. Doc. 73-1 ¶¶ 16, 17, 29-33 (though
Plaintiff

disputes

Defendants’

contention

that

the

seating

arrangement in place when Plaintiff fell is the only permissible
arrangement

under

the

ADA,

Plaintiff

acknowledges

that

the

location of seating in a store is governed by the ADA and that
improper placement of seating can create hazards for customers).
The second prong pertains to the “likelihood and magnitude of
harm,

including

the

obviousness

and

apparentness

of

the

condition.” See Bufkin, 171 So. 3d at 856. As discussed previously,
the arrangement of furniture in a store is obvious, especially
when the complained-of hazard is inadequate seating. Moreover, the
seating arrangement at issue here was not dangerous. Plaintiff has
offered no evidence that any other TJX customers were injured by
the

allegedly

inadequate

seating

in

the

store.

The

closest

Plaintiff comes to meeting her burden is her offer of testimony
from one deponent who, “multiple times,” saw customers lean against
wheeled furniture, causing the furniture to move. See Rec. Doc.
73-6. But this small number of incidents that plaintiff highlights
does

not

prove

that

the

seating

arrangement

was

dangerous—

especially given that there is no evidence that any of those other
customers were injured. See Edmison, 177 F. Supp. 3d at 980
(holding that defendant owed plaintiff no duty under the risk-

7

utility analysis in part because the allegedly dangerous condition
led to very few accidents).
The fourth factor is the cost of preventing the alleged harm.
This factor is hotly debated by the parties. Plaintiff argues that
the store’s furniture could be easily rearranged to make seating
more visible from the front of the shoe department. Rec. Doc. 731 ¶¶ 16, 17. Defendants argue that TJX cannot rearrange the
furniture without violating the ADA, which would be a very high
cost indeed. Rec. Doc. 70-2 ¶¶ 29, 30, 32, 33. But the dispute
over the impact of the ADA does not need to be resolved to determine
that the fourth factor weighs in favor of Defendants because the
“precedent of a favorable finding for the [P]laintiff[] could be
incalculable.” Edmison, 177 F. Supp. 3d at 980.
If stores have a duty to prevent customers from making choices
that expose themselves to open and obvious risks, then the stores
have an awesome duty to their customers. See, e.g., id.; Chambers
v. Vill. of Moreauville, 2011-0898, p. 9-11 (La. 1/24/12); 85 So.
3d 593, 600 (“[T]he cost of fixing all deviations [that were]
similar to the instant deviation [in a city’s sidewalks] [wa]s out
of proportion to the gain in fixing such deviations because the
risk of someone being seriously injured by such a small sidewalk
defect

[wa]s

so

slight.”).

Moreover,

moving

the

benches

as

Plaintiff suggests (Rec. Doc. 73-1 ¶¶ 16-17) could create the same
problem in a different part of the store. If the benches are moved
8

to the front of the shoe section, they might not be visible from
the back of the section; the parties would be back to square one.
The final factor focuses on the Plaintiff’s behavior and asks
whether it has social utility or is dangerous by nature. See
Bufkin, 171 So. 3d at 856. Shopping for shoes has social value
because it stimulates the economy and Plaintiff may be more
productive in her daily life with adequate footwear. And while
“dangerous”

is

an

unnecessarily

inflammatory

descriptor

for

Plaintiff’s decision to try on the shoes while leaning on the
table, Plaintiff’s actions were not prudent. Plaintiff made shoe
shopping riskier by setting aside common sense and trying on the
shoes before sitting down. Such a decision by a plaintiff weighs
in favor of finding that TJX owed Plaintiff no duty. See Edmisson,
177 F. Supp. 3d at 980; cf. Broussard, 113 So. 3d at 192-93.
Together, the four factors of the risk-utility analysis indicate
that the seating at the TJX store was not unreasonably dangerous
and that Defendant had no duty to Plaintiff.1
New Orleans, Louisiana, this 26th day of October, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
1

Plaintiff has the burden of establishing every element of her negligence
claim. See Bufkin, 171 So. 3d at 855. Because failure to raise a genuine
issue of material fact as to the duty element necessarily means that
Plaintiff cannot prevail on her negligence claim, there is no need to discuss
Defendants’ argument that, if TJX owed Plaintiff a duty, TJX did not breach
that duty. See Rec. Doc. 70-1 at 4-7. For the same reason, there is no need
to reach Plaintiff’s argument that she is entitled to summary judgment on the
cause-in-fact prong of her negligence claim. See Rec. Doc. 65-1 at 2-3.

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