YANNARELLA et al v. BJ'S WHOLESALE CLUB, INC. et al
OPINION FILED. Signed by Judge Robert B. Kugler on 12/15/15. (js)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BJ’S WHOLESALE CLUB, INC., JOHN
DOE(S) 1–5 (as owners and/or maintainers of :
the property), and ABC CORPORATIONS
1–5 (as owners, maintainers of the property)
individually, separately, and in the alternative, :
ROBERT YANNARELLA and SUSAN
YANNARELLA, His Wife,
Civil. No. 14-7815 (RBK/JS)
KUGLER, United States District Judge:
This personal injury suit arises from an incident where Plaintiff Robert Yannarella
(“Yannerella”) fell in the parking lot in front of a retail location owned by Defendant BJ’s
Wholesale Club (“the Club”). Presently before the Court is the Club’s Motion for Summary
Judgment (“Defendant’s Motion” or “Def.’s Mot”) [Dkt. No. 10]. For the reasons set forth
below, Defendant’s Motion will be DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court recites those facts relevant to deciding the pending motion for summary
judgment, and resolves any disputed facts or inferences in favor of Yannarella, the nonmoving
party. Trinity Indus., Inc. v. Chi. Bridge & Iron Co., 735 F.3d 131, 134–35 (3d Cir. 2013).
On April 26, 2013, Yannarella and his friend, Bobby Veight (“Veight”), went to the retail
location of the Club in Maple Shade, New Jersey, sometime between 11:30am and 12:00pm to
shop. (Def.’s Statement of Material Facts (“DSMF”) [Dkt. No. 10] ¶ 13; Yannarella Dep. Tr.
(Def.’s Ex. C) [Dkt. No. 10-6] at 28:5–29:7, 30:25–31:4.) Yannarella was using a shopping cart
for support to help him walk into the store, and had placed his cane in the cart. (DSMF ¶ 14;
Pls.’ Statement of Material Facts (“PSMF”) [Dkt. No. 11] ¶ 14; Yannarella Dep. Tr. at 32:22–
33:15.) While walking up to the store, Yannarella and Veight were having a conversation, and
Yannarella was either looking straight ahead or talking to Veight. (DSMF ¶ 14; PSMF ¶ 14;
Yannarella Dep. Tr. at 35:7–12).
As Yannarella was walking, the shopping cart went over a drainage grate, which
Yannarella did not notice. (PSMF ¶ 14; Yannarella Dep. Tr. at 29:10–14, 36:6–8.) As
Yannarella was walking, he felt his right foot hit something, the shopping cart he was holding
onto rolled away from him, and he fell to the ground. (DSMF ¶ 18; PSMF ¶ 18; Yannarella Dep.
Tr. at 36:3–14.) When Yannerella was on the ground, the only thing he saw in the area was the
drainage grate. (DSMF ¶¶ 19–20; PSMF ¶¶ 19–20; Yannarella Dep. Tr. 39:1–9, 41:21–42:6).
At all relevant times to the incident, the Club operated and maintained the premises where the
incident occurred. (PSMF ¶¶ 30, 34; Def.’s Resps. to PSMF (“DRSMF”) [Dkt. No. 12] ¶ 34;
Def.’s Resps. to Interrogs. (Pl.’s Ex. A) [Dkt. No. 11-1] at Form C2 Interrog. No. 1). As to the
condition of the grate, the parties have multiple disagreements.1
Yannarella and his wife, Susan, (collectively, “Plaintiffs”) filed suit in the Superior Court
of New Jersey, Law Division, Burlington County, on March 4, 2014. (See Notice of Removal
[Dkt. No. 1] ¶ 4.) In June of 2014 the parties entered into a stipulation in the state court that
damages would be capped at $75,000. (Id. ¶¶ 7–8, 10.) Subsequently on October 20, 2014,
Plaintiffs moved to vacate the stipulation, and the state court judge entered an order that vacated
the stipulation on November 21, 2014. (Id. ¶¶ 11–14.) Plaintiffs confirmed on the same date
These will be discussed in Section IV, infra.
that they valued their damages at over $75,000. (Id. ¶ 16.) The Club then removed the case to
this Court on December 15, 2014. (See generally id.)
Jurisdiction in this Court is premised on this Court’s diversity jurisdiction under 28
U.S.C. § 1332. Plaintiffs are both citizens of New Jersey, and the Club is a Delaware
Corporation with its principal place of business in Massachusetts. (Notice of Removal ¶ 17.)
Potential damages in this case are valued above the jurisdictional threshold of $75,000. (See id.
¶ 16.) Therefore, this Court properly has jurisdiction over this case.
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine
dispute of material fact exists only if the evidence is such that a reasonable jury could find for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the Court
weights the evidence presented by the parties, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
The moving party bears the burden of establishing that no genuine issue of material fact
remains. See Celotex, 477 U.S. at 322–23. A fact is material only if it will affect the outcome of
a lawsuit under the applicable law, and a dispute of a material fact is genuine if the evidence is
such that a reasonable fact finder could return a verdict for the nonmoving party. See Anderson,
477 U.S. at 252. Even if the facts are undisputed, a disagreement over what inferences may be
drawn from the facts precludes a grant of summary judgment. Ideal Dairy Farms, Inc. v. John
Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. 1996).
The nonmoving party must present “more than a scintilla of evidence showing that there
is a genuine issue for trial.” Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
The court’s role in deciding the merits of a summary judgment motion is to determine whether
there is a genuine issue for trial, not to determine the credibility of the evidence or the truth of
the matter. Anderson, 477 U.S. at 249.
NEGLIGENT MAINTENANCE OF PROPERTY AND DISPUTED FACTS
Plaintiffs have alleged that the Club was negligent in maintaining the parking lot such
that Yannarella tripped on the grate. (See Compl. [Dkt. No. 1-1] at “Count One”.)2 In New
Jersey, “[t]o prevail on a claim of negligence, a plaintiff must establish four elements: (1) that
the defendant owed a duty of care; (2) that the defendant breached that duty; (3) actual and
proximate causation; and (4) damages.” Fernandes v. DAR Dev. Corp., 222 N.J. 390, 403–404
(2015) (citing Townsend v. Pierre, 221 N.J. 36, 51 (2015)).
The parties do not appear to dispute that Yannarella was a business invitee of the Club,
and thus owed a heightened duty of care. (See Def.’s Mot. Br. [Dkt. No. 10-2] at 2–3; Pl.’s Opp.
Br. [Dkt. No. 11-2] at 2–3.) 3 “Business owners owe invitees a duty of reasonable or due care to
In addition, Plaintiffs also allege a count on behalf of Yannarella’s wife, Susan, for past and
future “depriv[ation] of the aid, comfort, companionship, services and consortium of her
husband.” (Compl. at “Count Four”.) The Club has not moved for summary judgment on Susan
Yannarella’s hedonic damages.
One citation in the Club’s moving brief gives the Court pause as to whether it disputes the
existence of a duty. The Club cites to May v. Atl. City Hilton, 128 F. Supp. 2d 195, 200–01
(D.N.J. 2000) for the proposition that “in determining the existence of a duty, a court must
analyze and weigh factors such as the foreseeability and severity of the underlying risk of harm,
the comparative interests and relationships of the parties, and the societal interest in the proposed
solution.” (Def.’s Mot. Br. at 3.) However, May is inapposite. May was a case dealing with
liability for the defective design of a handicap ramp in a sidewalk abutting—but not on—the
defendant’s property. See 128 F. Supp 2d at 197. The court in May determined that so-called
“sidewalk liability” did not extend to design defect, but only covered negligent maintenance. Id.
at 200–01 (citations omitted). In the instant matter, the alleged design defect is actually on the
provide a safe environment for doing that which is within the scope of the invitation.”
Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003) (citing Hopkins v. Fox & Lazo
Realtors, 132 N.J. 426, 433 (1993) and Restatement (Second) of Torts § 343 (1965)). “The duty
of due care requires a business owner to discover and eliminate dangerous conditions that would
render the premises unsafe.” Id. (citing O’Shea v. K Mart Corp., 304 N.J. Super. 489, 492–93
(App. Div. 1997)).
The Club moves for summary judgment arguing that (1) Plaintiffs’ failure to retain an
expert and provide expert testimony is fatal to any claim of negligence (Def.’s Mot. Br. at 3–5);
(2) Plaintiffs failed to adduce evidence of any lip (id. at 5–6); and (3) the condition of the grate
was open and obvious, which obviated the Club’s duty to Yannarella, and thus the Club had no
obligation to warn Yannarella about the grate (id. at 6–8). However, underlying each of these
arguments is an assumption by the Club that no reasonable jury could find that a lip or divot
existed around the grate.
The briefing and statements of material facts demonstrate that the parties have a genuine
issue of material fact with respect to the condition of the grate. Plaintiffs aver that there was a
“lip” or “divot” on the grate, and the Club denies any problem with the grate. The initial burden
is on the Club as the moving party to satisfy this Court that no genuine issue of material fact
remains by identifying what portion of the record the Club believes demonstrate a lack of issue
of material fact. See Celotex, 477 U.S. at 322–23. However, the evidence cited to by the Club
does the opposite.
Club’s property, and the Club has admitted as much. (PSMF ¶¶ 30, 34; DRSMF ¶ 34; Def.’s
Resps. to Interrogs. at Form C2 Interrog. No. 1.) Further, Plaintiffs are not only alleging design
defect, but also a negligent maintenance for failure to fix the lip or divot. This makes the grate at
issue distinguishable from the ramp at issue in May.
The Club cites to portions of Yannarella’s deposition transcript and photographic
evidence produced by Plaintiffs in discovery in support of its allegations that Plaintiffs cannot
carry their burden. (See generally DSMF.) However, a reasonable jury, considering the
photographic evidence and deposition evidence cited by the Club could in fact conclude that at
the time of Yannarella’s fall, there was indeed a lip or divot. Yannarella himself asserts
repeatedly at his deposition that the lip or divot existed based on his observation of the grate
immediately after his fall. (See, e.g., Yannarella Dep. Tr. at 36:3–9, 39:3–40:9, 41:2–6, 43:17–
20.) The photographs produced by Plaintiffs and submitted by the Club are not very clear or
high quality. (See Def.’s Ex. E [Dkt. No. 10-8].) But a reasonable jury could conclude from
these photos, taken with testimony, that a lip or divot existed.
Even assuming the Club had met its burden of demonstrating that the record failed to
show genuine issue of material fact, Plaintiffs have provided more than a scintilla of evidence to
demonstrate the existence of a dispute. Plaintiffs submit into the record portions of the
deposition of Ms. Catherine Grasso, a Club employee, and portions of the deposition of
Yannarella’s friend, Veight. Ms. Grasso’s testimony, being read in the light most favorable to
Plaintiffs as the non-moving party, demonstrates that the Club failed to take notice of any
potential dip around the grate (Grasso Dep. Tr. (Pl.’s Ex. B) [Dkt. No. 11-1] at 42:4–24) and that
the grate was not painted or otherwise marked to distinguish it in any way (id. at 40:15–41:12.)
Veight’s testimony further corroborates Yannarella’s testimony that there was a dip or break in
the pavement around the grate, although Veight did not recall the height of the dip. (See, e.g.,
Veight Dep. Tr. (Pl.’s Ex. C) [Dkt. No. 11-1] at 35:9–14, 44:4–12.)
The Court remains mindful of the fact that in deciding a motion for summary judgment,
“the judge’s function is not himself to weight the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial.” Santini v. Fuentes, 795 F.3d 410,
416 (3d Cir. 2015) (quoting Anderson, 477 U.S. at 249) (internal quotation marks omitted). The
evidence presented by the parties demonstrates that there is a genuine issue for trial.
Accordingly, summary judgment will be denied.
The Court will take this opportunity to dismiss on its own initiative the unnamed John
Doe and ABC Corporation defendants pursuant to Federal Rule of Civil Procedure 21. Rule 21
provides that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a
party.” Plaintiffs may pursue an action against fictitious parties until plaintiff has had an
opportunity to conduct discovery. Hindes v. FDIC, 137 F.3d 148, 155 (3d Cir. 1998).
“[F]ictitious parties must eventually be dismissed if discovery yields no identities . . . .” Id.
(quoting Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 36 (E.D. Pa. 1990)) (internal quotation
Discovery in this case closed on June 30, 2015. (Sched. Ord. (Mar. 18, 2015) [Dkt. No.
7].) At no point since have Plaintiffs attempted to identify the John Doe defendants or the ABC
Corporations to this Court. Therefore, as other courts of this district have held, “[i]t is
appropriate, before proceeding to trial, to eliminate these fictitious defendants from this action
under [Rule] 21.” Adams v. City of Camden, 461 F. Supp. 2d, 263 (D.N.J. 2006). Accordingly,
the Court will dismiss John Doe(s) 1–5 and ABC Corporations 1–5, and as such will dismiss
Counts Two and Three of the Complaint. The Court will also dismiss Count Five for failure to
contain any legal allegations independent of the other counts of the Complaint.4
Count Five merely incorporates all other allegations in the pleadings and then, without
asserting a legal theory, demands judgment.
For the foregoing reasons, the Club’s Motion for Summary Judgment will be denied. An
appropriate order accompanies this opinion.
Date: December 15th , 2015
s/ Robert B. Kugler
ROBERT B. KUGLER, U.S.D.J.
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