DONAHUE et al v. TARGET CORPORATION et al
Filing
38
OPINION. Signed by Judge Noel L. Hillman on 4/7/2017. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
ROSE DONAHUE and KEVIN DONAHUE,
Plaintiffs,
Civil No. 13-5737 (NLH/KMW)
v.
OPINION
TARGET CORPORATION,
Defendant.
__________________________________
APPEARANCES:
PERSKIE FENDT & CANNADAY, P.C.
By: Robert T. Fendt, Esq.
450 Tilton Road, Suite 260
Northfield, New Jersey 08225
Counsel for Plaintiffs
KANTROWITZ & PHILLIPPI, LLC
By: Polly N. Phillippi, Esq.
1239 Parkway Avenue – Suite 101
Ewing, New Jersey 08628
Counsel for Defendant
HILLMAN, District Judge
This is a diversity premises liability suit. 1 Plaintiff Rose
Donahue asserts that, while shopping at Defendant’s Target store in
Mays Landing, New Jersey, she was injured as she removed a heavy
box from a waist-high shelf.
Presently before the Court is
Target’s Motion for Summary Judgment.
1
For the reasons set forth
The Court exercises subject matter jurisdiction pursuant to 28
U.S.C. § 1332.
1
below, the motion will be denied.
I.
Plaintiff Donahue went to her local Target store on September
25, 2011, around mid-day, to purchase a bookcase that she had seen
advertised in Target’s circular. (R. Donahue Dep. p. 32-33, 38)
The bookcase was packed disassembled in one rectangular box; the
dimensions of which were 12 1/8 inches wide, 39 1/2 inches high,
and 7 inches deep. (Def’s Statement of Undisputed Facts, “SUF”, ¶
6)
The box and disassembled bookcase together weighed 55.4 pounds.
(Id.)
The box was displayed standing upright on a shelf that was
approximately four feet off the ground, with other merchandise on a
shelf below it. (Def’s SUF ¶ 4-5; Def’s Ex. C)
Two metal “safety
arms” extended out on either side of the box and bent inward at
approximately the middle of the upright box. (Def’s SUF ¶ 5, Def’s
Ex. C)
Donahue testified that she navigated her shopping cart to the
furniture section of the store, and found the advertised “5-shelf
bookcase.” (R. Donahue Dep. p. 40; Def’s Ex. C)
She further
testified that she assumed the box would not be heavy because the
$26.00 price suggested to her that the bookcase was likely made of
“particle board.” (Id. p. 46)
At her deposition, Donahue described what happened:
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The shelf was about waist height and . . . I reached in
and I just picked it straight up. The silver bar was
about to the middle of the box . . . so I knew I had to
get it over that so I just picked it straight up [over
my head]. . . . [Then] the contents of the box . . .
shifted to the right and [the box] slipped right through
my hands and the box came down on an angle, hit my
[right] cheekbone, . . . [t]hen my left shoulder, . . .
[and] left forearm. . . . [T]hen I, like caught it with
my legs and just heaved it into my [shopping cart] that
was to my right side there.
(R. Donahue Dep. p. 48-49, 51)
The box undisputedly was marked with two yellow “Team Lift”
labels which depict two people lifting a box together. (Def’s SUF ¶
9-10)
The label reads: “FOR YOUR SAFETY . . . This merchandise is
a TEAM LIFT item.
It is either too heavy or too bulky for one
person alone to handle safely.
assistance.” (Def’s SUF ¶ 11)
Please call guest service for
Donahue testified that she did not
see the yellow stickers. (R. Donahue Dep. p. 45)
Donahue further testified:
Q: . . . Why didn’t you call and ask for assistance to
lift the box off the shelf?
A: Well, because that it was on the [waist-high] shelf
and that it was $26, it was a small [bookcase] and
that, you know, anybody could just reach in and pick
it up.
Q. Did you attempt before you went in to reach to pick
it up to find somebody to help you?
A.
No.
Q.
Why not?
A.
I just thought-- I always thought it was, like a
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self-service store and that like Walmart or Kmart you
just went in and helped yourself. If I knew . . . it
was too heavy I would always bring my husband. I
didn’t think I required him to pick up a little shelf
for me.
(R. Donahue Dep. p. 51-52)
After getting the box into the cart, Donahue shopped for
approximately 15 minutes before checking out. (R. Donahue Dep. p.
55)
“[N]ear the end” of that time, Donahue’s “neck really started
to bother” her and she “felt, like pressure on top of [her] head.”
(R. Donahue Dep. p. 55)
In the parking lot, Donahue managed to “slide” the box from
the shopping cart into the hatch-back of her Honda Pilot without
having to lift the box. (R. Donahue Dep. p. 59)
Upon returning home, Donahue explained to her husband what
happened. He advised Donahue to immediately return to the store to
report the incident. (R. Donahue Dep. p. 61) 2 Donahue did so, and
completed Target’s standard “LOD Investigation Report” with the
assistance of a Target employee. (Id. at p. 61-62; Def’s Ex. B)
The report states in relevant part, “the guest didn’t realize how
heavy the item was until she started taking it off the shelf.”
(Def’s Ex. B)
Later that same evening, Donahue went to an urgent care
2
Donahue’s husband took the bookcase out of the car. Upon lifting
it, he remarked, “‘holy cow, this is 60 or 70 pounds’ and then he
kind of like, laughed.” (R. Donahue Dep. p. 70)
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facility for her injuries. (Def’s Ex. F)
According to Plaintiff’s opposition brief, as a result of the
incident, Donahue has had three separate surgeries yet still
suffers from lasting problems.
Donahue testified that she has “a
little bit [of weakness] in [her] left [arm]” and her right arm is
“completely numb.” (R. Donahue Dep. p. 13)
She also has
“tightness” in one hand and “a lot of pain in [her] elbow.” (R.
Donahue Dep. p. 13)
Before the incident, Donahue worked as a cocktail waitress at
an Atlantic City casino, carrying drinks on a tray throughout the
gaming floor. (R. Donahue Dep. p. 9, 12)
Since her injury, she has
switched to bartending. (Id. at 13)
The Complaint asserts two claims: negligence and loss of
consortium under New Jersey common law.
II.
Summary judgment is appropriate where the Court is satisfied
that “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ . . .
demonstrate the absence of a genuine issue of material fact” and
that the moving party is entitled to a judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)(citing Fed.
R. Civ. P. 56).
An issue is “genuine” if it is supported by evidence such that
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a reasonable jury could return a verdict in the nonmoving party’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. Id.
“In considering a motion for summary judgment, a district court may
not make credibility determinations or engage in any weighing of
the evidence; instead, the non-moving party’s evidence ‘is to be
believed and all justifiable inferences are to be drawn in his
favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. Celotex, 477 U.S.
at 323 (“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.”); see
also Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n.2 (3d
Cir. 2001) (“Although the initial burden is on the summary judgment
movant to show the absence of a genuine issue of material fact,
‘the burden on the moving party may be discharged by ‘showing’ -that is, pointing out to the district court -- that there is an
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absence of evidence to support the nonmoving party’s case’ when the
nonmoving party bears the ultimate burden of proof.”)(citing
Celotex, 477 U.S. at 325).
Once the moving party has met this burden, the nonmoving party
must identify, by affidavits or otherwise, specific facts showing
that there is a genuine issue for trial. Celotex, 477 U.S. at 324.
A “party opposing summary judgment ‘may not rest upon the mere
allegations or denials of the . . . pleading[s.]’” Saldana v. Kmart
Corp., 260 F.3d 228, 232 (3d Cir. 2001).
For “the non-moving
party[ ] to prevail, [that party] must ‘make a showing sufficient
to establish the existence of [every] element essential to that
party’s case, and on which that party will bear the burden of proof
at trial.’” Cooper v. Sniezek, 418 F. App’x 56, 58 (3d Cir.
2011)(citing Celotex, 477 U.S. at 322).
Thus, to withstand a
properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that
contradict those offered by the moving party. Anderson, 477 U.S. at
257.
III.
Target moves for summary judgment arguing that the record
evidence cannot support a finding that (A) a dangerous condition
existed; and (B) Target’s asserted negligence was the cause-in-fact
of Donahue’s injuries.
Target also argues that (C) any dangerous
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condition was open and obvious.
All three arguments fail.
A.
Donahue’s theory of her case is that the placement of the box
on the shelf, combined with inadequate warnings, resulted in an
unreasonably dangerous condition.
“Business owners owe to invitees a duty of reasonable or due
care to provide a safe environment for doing that which is within
the scope of the invitation.
The duty of due care requires a
business owner to discover and eliminate dangerous conditions, to
maintain the premises in safe condition, and to avoid creating
conditions that would render the premises unsafe.” Nisivoccia v.
Glass Gardens, Inc., 175 N.J. 559, 563 (2003)(internal citations
omitted).
When, as in this case, an injury occurs within the context of
a defendant’s self-service mode of operation, “[t]he plaintiff is
entitled to an inference of negligence, shifting the burden of
production to the defendant, who may avoid liability if it shows
that it did ‘all that a reasonably prudent [business owner] would
do in light of the risk of injury the operation entailed.’”
Nisivoccia, 175 N.J. at 564-65 (quoting Wollerman v. Grand Union
Stores, Inc., 47 N.J. 426, 429 (1966)); see also O’Shea v. K.Mart
Corp., 304 N.J. Super. 489, 495 (App. Div. 1997)(“in self-service
stores . . . the customer is expected and indeed invited to handle
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and examine articles of merchandise displayed or stacked in the
store . . . . The defendant having established a business of this
nature is under a duty to take reasonable measures to guard against
injuries to customers due to such fallings of stacked
merchandise.”)(internal citation and quotation omitted); see
generally Katsaros v. Target Corp., 2015 U.S. Dist. LEXIS 12219 at
*5-6 (D.N.J. Feb. 3, 2015)(concluding that the mode of operation
rule applied to a slip and fall occurring in a Target store).
Application of this burden shifting doctrine is significant in
the context of the instant motion.
Target argues that Plaintiff’s
evidence is insufficient to establish negligence, but because the
mode of operation doctrine applies, it is Target which must put
forth evidence that it was not negligent. See Nisivoccia, 175 N.J.
at 565 (“absent an explanation by defendants, a jury could find
from the condition of the premises and the nature of the business
that defendants did not exercise due care in operating the
establishment, and that said negligent operation was the proximate
cause of the injuries.”)(internal citation and quotation omitted);
Katsaros, 2015 U.S. Dist. LEXIS 12219 at *6 (“Defendant has not
sufficiently proven at this point that it took prudent and
reasonable steps to avoid the potential hazard.”).
In this regard, Target argues that it fulfilled its duty of
care by placing the “team lift” stickers on the box.
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However,
issues of disputed material fact preclude granting summary judgment
to Target.
As demonstrated by the picture of the box at Def’s Ex.
C, the one sticker that may have been visible while the box was
resting vertically on the shelf is: (a) relatively small compared
to the large size of the box; (b) located inconspicuously in the
right bottom corner of the box, several inches below the picture of
the bookcase; and (c) situated in between two other similarly-sized
logos and the item’s barcode.
Moreover, Donahue’s expert opines that “the warning labels
were small and on a cluttered box with many other labels, graphics
and designs intended to attract the attention of shoppers.
It was
not reasonable for Target to rely on customers either reading all
labels on the box or only this warning label before touching this
box.” (Pl’s Ex. D).
A reasonable factfinder could conclude that the merchandise
display, which was created for customers’ self-service, was unsafe
insofar as it was placed too high up for a 55 pound, bulky box.
The factfinder could further conclude that Target’s “team lift”
stickers were insufficient to fulfill its duty of care to Donahue
under the circumstances.
B.
Target also argues that Donahue cannot prove proximate cause
because, Target reasons, Donahue testified that she did not see any
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warning stickers, therefore Target’s asserted inadequate warning
could not have been the cause of Donahue’s injuries.
According to
Target, “[r]egardless of how big or small the text, there is no
evidence this plaintiff would have been warned and heeded the
warning to avoid the danger.” (Reply Brief, p. 6)
The Court disagrees with Target’s analysis because the
analysis is inconsistent with: (a) the application of the mode of
operation doctrine, Nisivoccia, 175 N.J. at 565 (“a jury could find
from the condition of the premises and the nature of the business
that defendants did not exercise due care in operating the
establishment, and that said negligent operation was the proximate
cause of the injuries.”)(emphasis added); and (b) the Court’s
obligation to view the record evidence in the light most favorable
to Donahue.
A jury must decide the issues of material fact concerning the
proximate cause of Donahue’s injuries.
C.
Lastly, issues of material fact preclude summary judgment as
to whether the alleged dangerous condition was open and obvious.
reasonable factfinder could find reasonable Donahue’s explanation
that she did not expect a $26 bookcase at a self-service big box
store such as Target to weigh 55 pounds.
Indeed, Donahue’s husband’s remark upon lifting the bookcase
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A
out of Donahue’s car-- “‘holy cow, this is 60 or 70 pounds’” (R.
Donahue Dep. p. 70)-- supports an inference that the weight of the
bookcase was the opposite of open and obvious.
IV.
For the reasons stated above, Target’s Motion for Summary
Judgment will be denied.
An appropriate order accompanies this
opinion.
Dated: April 7, 2017
At Camden, New Jersey
__s/ Noel L. Hillman __
NOEL L. HILLMAN, U.S.D.J.
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