SENISCH et al v. TRACTOR SUPPLY COMPANY et al

Filing 61

OPINION. Signed by Judge Noel L. Hillman on 1/8/2018. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MICHAEL SENISCH, et al.,
Plaintiffs,

No. 1:16-cv-47 (NLH/KMW)
OPINION

v.
TRACTOR SUPPLY CO., et al.,
Defendants.

APPEARANCES:
MICHAEL CHARLES SENISCH
38 PINDALE DRIVE
BRIDGETON, NJ 08302-4901
Appearing pro se
JULIE ETTA SENISCH
38 PINDALE DRIVE
BRIDGETON, NJ 08302-4901
Appearing pro se
CHRISTOPHER E. MARTIN
SETH M. GARROD
MORRISON MAHONEY LLP
WATERVIEW PLAZA
2001 U.S. HIGHWAY 46, SUITE 200
PARSIPPANY, NJ 07054
On behalf of Defendants Tractor Supply Company, AON
Corporation, and Gallagher Basset Services
LEWIS K. JACKSON
STYLIADES, JACKSON & DIMEO
10 LAKE CENTER EXECUTIVE PARK
401 ROUTE 73 NORTH
SUITE 310
MARLTON, NJ 08053
On behalf of TKC XC LLC % The Keith Corporation

HILLMAN, District Judge
This is a negligence case arising from Plaintiff Michael
Senisch’s alleged injury at a Tractor Supply Company store when
Mr. Senisch tripped over a hand truck outside the front entrance
of the store.

Defendants Tractor Supply Company (“Tractor

Supply”) and AON Corporation move for summary judgment. 1

This

Opinion addresses both Defendants’ Motion for Summary Judgment
and Plaintiffs’ Cross-Motion for Summary Judgment.

For the

reasons that follow, the Court will grant Defendants’ motion and
deny Plaintiffs’ motion.
I.
The Court takes its facts from Defendants’ Statement of
Undisputed Material Facts. 2

On November 29, 2013 – “Black

1

Defendants’ moving papers also seem to move for summary
judgment on behalf of Defendant Gallagher Bassett Services
(GBS). However, this Court granted Defendant GBS’s motion to
dismiss on May 26, 2016. Accordingly, GBS is no longer a party
to this action. Defendant TKC XC LLC % The Keith Corporation
has not yet moved for summary judgment. This Court refers to
Tractor Supply and AON Corporation jointly as “Defendants” in
this Opinion.
2

Defendants note Plaintiffs did not respond to Defendants’
Statement of Undisputed Material Facts and thus argue the facts
should be deemed uncontested. The Court finds Plaintiffs did
fail to comply with Local Civil Rule 56.1(a), which provides, in
pertinent part:
On motions for summary judgment, the movant shall
furnish a statement which sets forth material facts as
to which there does not exist a genuine issue . . . .
The opponent of summary judgment shall furnish, with its
opposition papers, a responsive statement of material
2

Friday” following Thanksgiving Day – Plaintiffs arrived at the
Tractor Supply Company store in Vineland, New Jersey for the
first time to make a purchase.

Plaintiffs drove to the store,

parked their vehicle in the lot, and walked approximately thirty
feet to the sidewalk.
As they approached the store, Plaintiffs saw a shopping
cart with a sales circular in it.

Plaintiffs stopped to read

the circular with their backs to the store entrance.

After

reviewing the circular, Mr. Senisch testified he turned and
caught his left foot underneath a hand truck. 3

At this time he

was about five feet from the front entrance of the store.

He

testified he flew over it crossways, lifting it approximately a
foot off the ground.

Neither plaintiff knows how the hand truck

facts, addressing each paragraph of the movant’s
statement, indicating agreement or disagreement . . . .
[A]ny material fact not disputed shall be deemed
undisputed for purposes of the summary judgment motion.
While Plaintiffs have clearly violated an important local rule
of procedure which greatly facilitates the Court’s consideration
of summary judgment motions, in light of their pro se status,
the Court will consider the record as a whole in determining
whether Plaintiffs have proffered sufficient evidence of
disputed issues of material fact to survive Defendants’ summary
judgment motion. The Court applies the principle that the nonmoving 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) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
3

The hand trucks at the store, as well as shopping carts,
were available for use by patrons to carry items both inside and
outside the store.
3

got there or how long it had been there, but are sure the hand
truck was not there when they approached the shopping cart to
read the circular.
Plaintiffs’ complaint was filed in New Jersey Superior
Court on November 23, 2015.

It brings five counts against

Defendants: (1) negligence, (2) res ipsa loquitur, (3) strict
liability, (4) negligence per se, and (5) loss of consortium.
Defendants removed this case to federal court on January 5,
2016.

Defendants moved for summary judgment on May 15, 2017.

On June 16, 2017, Plaintiffs opposed the motion and filed a
cross-motion for summary judgment solely on their count for
strict liability.
II.
The Court first addresses its jurisdiction over this
matter.

Defendants’ Notice of Removal alleges as follows.

Plaintiffs are citizens of New Jersey.

Defendant Tractor Supply

is incorporated in Delaware and has its principal place of
business in Tennessee, making it a citizen of both Delaware and
Tennessee.

Defendant Gallagher Bassett Services is incorporated

in Delaware and has its principal place of business in Illinois,
making it a citizen of both Delaware and Illinois.

Defendant

The Keith Corporation is both incorporated and has its principal
place of business in North Carolina.

Defendant AON Corporation

is both incorporated and has its principal place of business in
4

a foreign country.

As there is complete diversity between the

parties and the Notice of Removal pleads the amount in
controversy is in excess of $75,000, this Court has diversity
jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
III.
`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 a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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, 358 F.3d at 247 (citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of
5

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 Singletary v. Pa.
Dep’t 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 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.
U.S. at 324.

Celotex, 477

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
6

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.
IV.

The Court first addresses Plaintiffs’ arguments regarding
Defendants’ failure to provide discovery.

By way of a March 1,

2017 Scheduling Order, Magistrate Judge Karen M. Williams set
the discovery end date for April 30, 2017.

Dispositive motions

were to be filed by May 12, 2017, which was later extended to
May 15, 2017.

Accordingly, discovery has been closed for almost

eight months now.
Several times in their opposition brief, Plaintiffs argue
their “discovery requests were flatly denied due to ‘orders’ to
the attending attorneys from Tractor Supply Company[].”
Plaintiffs’ brief also states “[t]hrough their first counsel who
was [terminated] and now through their current second counsel,
an entailed discovery was ‘objected’ to by consultation and
authority of Tractor Supply Company’s Corporate Claims Manager,
Mr. Jason Keen.”

Plaintiffs are presumably referring to

Defendants’ responses to Plaintiffs’ interrogatories, in which
7

there were many objections and in which several of Defendants’
initial responses began with “Upon advice of counsel,
objection.” 4
Plaintiffs have provided this Court with two versions of
Tractor Supply Company’s responses to their interrogatories.

4

In

Plaintiffs’ complaint of Defendants’ lack of response to
discovery requests was made multiple times throughout their
brief. While most complaints are vague, they all seem to relate
to the interrogatory responses:
•

“Tractor Supply Company has never fulfilled supplying
after ad nauseum efforts on the plaintiffs’ parts a fully
defined discovery response.”

•

“Also, Tractor Supply Company, as stated and documented
in previous court records, has repetitively refused and
ignored the court’s demands of providing the plaintiffs
of gaining a full and clear discovery and was denied
that privilege directly from a Tractor Supply’s
Administrator, within a corporate executive capacity as
ordered direction to their representing and answering
attorneys.”

•

“This blatant refusal and ‘stonewalling’ of Tractor
Supply Company Administration through their ordered
outside counsel to continuously refused to prove full
discovery to date, within itself should be a move to
strike their summary judgment motions.”

•

“Tractor Supply Company’s administration’s reluctance to
provide information pertaining to, but not limited to,
Tractor
Supply
Company’s
operations,
personnel,
administrative policies, etc. within relevant discovery
questions would grant the plaintiffs proper information
to fully expound their case in a trial matter, if also
not provide information covertly kept by the defendants
to avoid any settlement(s) in this matter of their strict
liability and mishandling of their standard of care in
a commercial business setting to provide and make safe
their premises for customer invitees.”
8

the June 6, 2016 responses, nearly all of the responses begin
with “Upon advice of counsel, objection.”

The response to the

first interrogatory also states that “[t]hese interrogatories
were answered with the assistance of counsel” and identifies
“Jason Keen, Tractor Supply Company Manager, Corporate Claims”
as the individual responding to the interrogatories.
The April 27, 2017 responses do not state “Upon advice of
counsel, objection,” but merely object to certain
interrogatories.

However, the response to the first

interrogatory still identifies Jason Keen as the individual
responding to the interrogatories.
Plaintiffs’ specific objection to Tractor Supply’s
responses is unclear to the Court.

While Tractor Supply

objected to many of the interrogatories, after objecting,
Tractor Supply often supplied an answer or gave an explanation
regarding the reason for the objection.

The Court also notes

Plaintiffs did not file a motion to compel following receipt of
the interrogatory responses.

Further, Plaintiffs have made no

attempt to oppose Defendants’ motion with a Federal Rule of
Civil Procedure 56(f) affidavit setting forth reasons why they
cannot present facts necessary to oppose the summary judgment
motion. 5

5

Plaintiffs further did not make such an argument in

Federal Rule of Civil Procedure 56(d) provides:
9

their brief, only stating that responses “would grant the
plaintiffs proper information to fully expound their case in a
trial matter.”
In any event, the Court finds even if Plaintiffs had been
supplied more complete answers to each of their interrogatories,
it would not change this Court’s determination that summary
judgment must be granted in favor of Defendants in this case.
Plaintiffs have failed to demonstrate a genuine issue of
material fact regardless of Defendants’ responses to
interrogatories, and favorable responses to the interrogatories
would not change the Court’s determination.
Plaintiffs also commented on Defendants’ failure to
“furnish in its own motion . . . their personal store
surveillance video, displaying preceding and post-events of the
plaintiff’s fall.”

Plaintiffs state in their brief that

Defendants “conveniently and intentionally ignored” and “never
supplied their Vineland store’s video of the plaintiff’s fall

If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential
to justify its opposition, the court may:
(1)

defer considering the motion or deny it;

(2)

allow
time
to
obtain
affidavits
declarations or to take discovery; or

(3)

issue any other appropriate order.
10

or

and injuries in this motion since it would be highly detrimental
to not only their motion, but their case.”

However, Defendants

have no obligation to provide all evidence in their possession.
Rather, Defendants are obligated to provide only the evidence
necessary to support their motion for summary judgment.
Evidence that helps Plaintiffs’ case, that is irrelevant, or
that would be unnecessary or cumulative in light of other
evidence to support the motion does not need to be presented to
this Court. 6
V.
The Court begins my noting it will grant summary judgment
in favor of AON Corporation.

Plaintiffs’ complaint pleads AON

Corporation is involved in Tractor Supply’s “Risk, Reinsurance,
Insurance, and Human Resources.”

However, the complaint, and

Plaintiffs’ brief, fail to specify any grounds for liability by
AON Corporation.

Accordingly, summary judgment will be granted

in favor of AON Corporation.
This Court now addresses Tractor Supply’s liability.
Plaintiffs’ complaint argues Tractor Supply is liable under
theories of negligence, res ipsa loquitur, strict liability, and

6

Plaintiffs admit “Tractor Supply Company willingly provided
the security camera video of the plaintiff’s fall to the
plaintiff’s former attorney.” Plaintiffs’ sole complaint seems
to be that this video was not provided to the Court with
Defendants’ motion, not that Plaintiffs were never provided with
this video.
11

negligence per se. 7

The Court addresses each in turn.

A. Negligence
"In New Jersey, . . . it is widely accepted that a
negligence cause of action requires the establishment of four
elements: (1) a duty of care, (2) a breach of that duty, (3)
actual and proximate causation, and (4) damages." Jersey Cent.
Power & Light Co. v. Melcar Util. Co., 59 A.3d 561, 571 (N.J.
2013); accord Lee v. Won Il Park, No. 12-7437, 2016 WL 3041845,
at *3 (D.N.J. May 26, 2016).
“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.”

Nisivoccia v. Glass

Gardens, Inc., 818 A.2d 314, 316 (N.J. 2003) (citing Hopkins v.
Fox & Lazo Realtors, 625 A.2d 1110 (N.J. 1993); Restatement
(Second) of Torts § 343 (1965)).

“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.”

Id.

(citing O’Shea v. K. Mart Corp., 701 A.2d 475 (N.J. Super. Ct.
App. Div. 1997)).
Ordinarily, an injured plaintiff asserting a breach of
that duty must prove, as an element of the cause of
action, that the defendant had actual or constructive
knowledge of the dangerous condition that caused the
7

Plaintiffs also bring a derivative claim for loss of
consortium.
12

accident.
Equitable considerations have, however,
motivated [the New Jersey Supreme Court] to relieve the
plaintiff of proof of that element in circumstances in
which, as a matter of probability, a dangerous condition
is likely to occur as the result of the nature of the
business, the property’s condition, or a demonstrable
pattern
of
conduct
or
incidents.
In
those
circumstances, [the New Jersey Supreme Court] ha[s]
accorded the plaintiff an inference of negligence,
imposing on the defendant the obligation to come forward
with rebutting proof that it had taken prudent and
reasonable steps to avoid the potential hazard.
Id. (citation omitted) (citing Brown v. Racquet Club of
Bricktown, 471 A.2d 25, 29 (N.J. 1984)); accord Bozza v.
Vornado, Inc., 200 A.2d 777, 779-80 (N.J. 1964).
“Overall the fair probability is that defendant did less
than its duty demanded, in one respect or another.”

Wollerman

v. Grand Union Stores, Inc., 221 A.2d 513, 514 (N.J. 1966).

“At

least the probability is sufficient to permit such an inference
in the absence of evidence that defendant did all that a
reasonably prudent man would do in the light of the risk of
injury his operation entailed.”

Id. at 514-15.

Plaintiffs

claim this is a mode-of-operation case in which they need not
prove actual or constructive notice.

Accordingly, this Court

must determine whether this is an appropriate case to apply the
mode-of-operation doctrine.
“[I]n all of its prior mode-of-operation cases, [the New
Jersey Supreme Court] has emphasized the self-service nature of

13

the defendant’s business.”

Prioleau v. Ky. Fried Chicken, Inc.,

122 A.3d 328, 337 (N.J. 2015).
[T]he mode-of-operation doctrine has never been expanded
beyond the self-service setting, in which customers
independently handle merchandise without the assistance
of employees or may come into direct contact with product
displays, shelving, packaging, and other aspects of the
facility that may present a risk. The distinction drawn
by these cases is sensible and practical.
When a
business permits its customers to handle products and
equipment, unsupervised by employees, it increases the
risk that a dangerous condition will go undetected and
that patrons will be injured.
Thus, the mode-ofoperation rule is not a general rule of premises
liability, but a special application of foreseeability
principles in recognition of the extraordinary risks
that arise when a defendant chooses a customer selfservice business model.
Id. at 337-38 (citations omitted).
New Jersey courts “have extended the mode-of-operation
doctrine to include self-service businesses other than
cafeterias and supermarkets.”

Arroyo v. Durling Realty, LLC, 78

A.3d 584, 588 (N.J. Super. Ct. App. Div. 2013).

“The unifying

factor, however, is a mode of operation designed to allow the
patron to select and remove the merchandise from the premises
without intervention from any employee of the storekeeper.”
Craggan v. Ikea U.S., 752 A.2d 819, 825 (N.J. Super. Ct. App.
Div. 2000).
Plaintiffs’ brief states “Tractor Supply Company allows,
permits, and by the ‘self-service, mode of operation’ nature of
their business to encourage customer invitees without any

14

assistance from store personnel to hand-pick either a shopping
cart, mid-sized cart, or a large, flatbed hand truck to be
freely wheeled around the store.”

Plaintiffs argue patrons are

then “permitted to continue with the shopping carts/hand trucks
about the store and personally load items to purchase onto the
shopping carts/hand trucks” before “wheel[ing] the shopping
carts/hand trucks to transport their bought items to their
personal vehicles in the private parking lot.”

Plaintiffs

conclude:
Since there is no “cart corral” or similar safe
device storage in Tractor Supply Company-Vineland’s
parking lot and the customer invitee is still not under
any supervision of the store’s employees, they are
permitted to leave the shopping carts/hand trucks
wherever they wish.
This factor fully completes the
justification a truly risky “self-service, mode-ofoperation” business.
While there is certainly a self-service component to
Tractor Supply’s business, this Court is unable to conclude
there existed “a dangerous condition . . . likely to occur as
the result of the nature of the business, the property’s
condition, or a demonstrable pattern of conduct or incidents,
Nisivoccia, 818 A.2d at 316, or that the conditions identified
in the store “present[ed] a risk,” Prioleau, 122 A.3d at 338.
This case can be contrasted to Wollerman, where the
plaintiff slipped and fell after stepping on a string bean at
the defendant's supermarket.

221 A.2d at 514.

15

The Wollerman

court found “[w]hen greens are sold from open bins on a selfservice basis, there is the likelihood that some will fall or be
dropped on the floor.

Id.

“If the operator chooses to sell in

this way, he must do what is reasonably necessary to protect the
customer from the risk of injury that mode of operation is
likely to generate . . . .”

Id.

Similarly, this case is distinguishable from Nisivoccia,
where the plaintiff slipped and fell after stepping on a grape
at the defendant's supermarket.

818 A.2d at 315-16.

The

Nisivoccia court stated: “A location within a store when a
customer handles loose items during the process of selection and
bagging from an open display obviously is a self-service area.
A mode-of-operation charge is appropriate when loose items that
are reasonably likely to fall to the ground during customer or
employee handling would create a dangerous condition.”
317.

Id. at

The Court found negligence was "inferred requiring the

store to come forward and produce evidence of its due care."
Id. at 318.
Wollerman and Nisivoccia, unlike this case, involved the
nature of the defendant’s business creating a risk that small
objects that patrons could slip on would end up on the floor of
a store.

In this case, the chance that a patron would leave a

hand truck in an area where another patron will walk does not
create a comparable risk.
16

Plaintiffs’ complaint describes the hand truck as “large.”
In Mr. Senisch’s deposition, he described it as follows:
A.

Large. Approximately about, I would say, 3 foot,
maybe 4 foot by about 5 or – 5 foot length. Handle
pretty much came up to about, I would say, here
(Indicating.)

Q.

You’re indicating just below your, you know, breast
line?

A.

Actually, more toward – between the umbilicus and
the ribcage. So we’re talking probably about maybe
– the handle, maybe 4 feet above the ground. And
that’s not – it’s less than what it would be
attached. No markings on the cart, no reflective
markings, the dark gray color. Like I said, it was
very difficult to see and, one, a cloudy day at
dusk with no outside lighting and in the position
it was.

Unlike a string bean or grape, a patron is unlikely to “slip” on
a hand truck.

While Mr. Senisch argues he tripped on the hand

truck, the Court does not find this to be an incident “likely to
occur” and does not find the providing of hand trucks to be a
dangerous condition.
The Court finds Znoski v. Shop-Rite Supermarkets, Inc., 300
A.2d 164 (N.J. Super. Ct. App. Div. 1973) and Carney v. Payless
Shoesource, Inc., No. 2680-07, 2009 WL 425822 (N.J. Super. Ct.
App. Div. Feb. 24, 2009) persuasive in this case. 8

In Znoski,

the plaintiff sustained injuries after being hit by a shopping
cart by a child.

300 A.2d at 165.

8

The New Jersey Superior

Defendants heavily rely on Znoski in their brief in support
of their summary judgment motion.
17

Court, Appellate Division (“Appellate Division”) found as
follows:
Plaintiff produced no expert witnesses to prove that the
entrance and exit doors were improp[e]rly constructed or
designed for the anticipated use by patrons with
shopping carts.
No expert proof was offered to show
that the sidewalk in front of and surrounding the doors,
or the wooden curbing abutting the end of the sidewalk,
was improperly constructed, designed or maintained for
the reasonably safe use by patrons; or that proper design
required some form of railing or divider at or near the
wooden curb. No proof was offered to show that the use
of shopping carts in the area around the doors created
a foreseeable danger or hazard requiring special
precautions to be taken by Shop-Rite.
Nor was proof
offered
to
show
that
Shop-Rite
had
actual
or
constructive knowledge that patrons, or other thirdparties, used the carts for any purpose or in any manner
other than those for which they were designed.
Id. at 165-66.
Specifically addressing the mode-of-operation doctrine, the
Appellate Division found:
We are unable to say that a substantial risk of
injury is implicit, or inherent, in the furnishing of
shopping carts to patrons by a store proprietor.
Shopping carts are not dangerous instrumentalities, and
they are uniquely suitable for the purpose for which
furnished.
Shop-Rite was under a legal duty of
exercising ordinary care to furnish a reasonably safe
place and safe equipment for its patrons consistent with
its operation and the scope of its invitation. It is
not an insurer of the safety of its patrons. The issue
is not merely whether it was foreseeable that patrons,
or
other
third
parties,
would
negligently
or
intentionally misuse shopping carts, but whether a duty
exists to take measures to guard against such
happenings. . . .
Every human activity involves some risk of harm,
but the reasonable probability of having other than a
minor accident from the use of carts in Shop-Rite’s
operation does not give rise to a duty to take measures
18

against it. So viewed, we find that plaintiff has failed
to carry the burden of showing a breach of duty on ShopRite’s part in furnishing its patrons with carts under
the circumstances here existing.
In fact, it is
difficult to visualize how an incident such as here
involved could have been prevented even if reasonable
precautions had been taken.
Id. at 166-67.
Similar to shopping carts, hand trucks are not “dangerous
instrumentalities” and they are similarly “uniquely suitable for
the purpose for which furnished.”

Also similar to Znoski,

additional precautions by Tractor Supply are not guaranteed to
markedly decrease any risk. 9
In Carney, the plaintiff tripped over a two-foot tall by
two-foot wide shoe bench at a Payless shoe store.
425822, at *1.

2009 WL

The plaintiff “contend[ed] that she [wa]s

entitled to an inference of negligence because the store knew or
should have known that their use of the portable shoe benches
created a dangerous condition,” thus invoking the mode-ofoperation doctrine.

Id.

The Appellate Division found:

The two-foot by two-foot portable shoe benches for
use by customers who try on merchandise do not raise a
9

While Mr. and Mrs. Senisch’s deposition testimonies
conflict, at most, Plaintiffs were reading the circular in the
shopping cart for five minutes. Even if Defendants took
additional precautions, such as monitoring that area for hand
trucks that might have been abandoned in an area trafficked by
patrons, that would not have necessarily prevented Mr. Senisch’s
injury given how quickly the hand truck appeared. Further, if
Defendants were to provide a location for the return of the hand
trucks, there is no guarantee that this would effectively result
in all hand trucks being returned to that location.
19

substantial risk inherent in defendant’s mode of doing
business. Any reasonably prudent person would observe,
in light of the dimensions of the benches, their presence
in his or her lane of travel.
No expert testimony was produced demonstrating that
use of the two-foot by two-foot portable shoe benches
created a dangerous condition or was contrary to
industry standards. There is simply no evidence in this
record establishing either ordinary negligence on the
part of defendant or that plaintiff is entitled to any
inference based on the mode-of-operation doctrine.
. . . .
Similarly, the use of the shoe benches did involve
some risk of harm, but not to an extent that a duty to
take measures against the harm was created.
Id. at *2.
The court distinguished the case from the more common
“spillage cases,” finding Znoski more analogous.

Similar to a

shoe bench, a hand truck is a large object, as described by
Plaintiffs.

A reasonably prudent person would be able to

observe a hand truck if one were left in his or her lane of
travel.

Accordingly, this Court finds Plaintiffs have not shown

there to be a dangerous condition and thus this Court will not
apply the mode-of-operation doctrine to this case.

As

Plaintiffs have not otherwise shown actual or constructive
knowledge, their negligence claim cannot survive summary
judgment.
The Court notes that these Plaintiffs are pro se, and that
“pro se pleadings and filings must be ‘construed liberally.’”
Bank of Nova Scotia v. Ross, No. 2010-118, 2012 WL 4854776, at
20

*3 (D.V.I. Oct. 12, 2012).

However, “the same summary judgment

standard applies to pro se litigants.”

Id.

“Proceeding pro se

does not otherwise relieve a litigant of the usual requirements
of summary judgment, and a pro se party’s bald assertions
unsupported by evidence, are insufficient to overcome a motion
for summary judgment.”

Rodriguez v. Hahn, 209 F. Supp. 2d 344,

348 (S.D.N.Y. 2002) (quoting Parkinson v. Goord, 116 F. Supp. 2d
390, 393 (W.D.N.Y. 2000)).
claim must be dismissed.

Accordingly, Plaintiffs’ negligence
The Court now turns to Plaintiffs’

remaining theories of liability. 10
B. Res Ipsa Loquitur
“In New Jersey, res ipsa loquitur ‘is a principle which
permits, but does not compel, a jury to infer negligence from
the mere happening of a particular event.’”

Denisco v.

Boardwalk Regency Corp., No. 10-3612, 2013 WL 179484, at *11
(D.N.J. Jan. 16, 2013) (quoting Tierney ex rel. Tierney v. St.
Michael’s Med. Ctr., 518 A.2d 242, 244 (N.J. Super. Ct. App.
Div. 1986)).
[T]here are three fundamental predicates for the
application of the doctrine, which are that “(a) the
10

The Court finds Defendants’ brief to be conclusory and
unhelpful regarding Counts II, III, IV, and V of the complaint.
Defendants’ argument regarding these four counts consists of a
mere half page of their brief. While the Court independently
assesses the merits of each count and agrees that the remaining
counts lack merit, Defendants are reminded of their obligation
to properly support their summary judgment motion with adequate
briefing.
21

occurrence itself ordinarily bespeaks negligence; (b)
the instrumentality was within the defendant’s exclusive
control; and (c) there is no indication in the
circumstances that the injury was the result of the
plaintiff’s own voluntary act or neglect.”
Khan v. Singh, 975 A.2d 389, 394-95 (N.J. 2009) (quoting
Bornstein v. Metro. Bottling Co., 139 A.2d 404, 408 (N.J.
1958)).
Plaintiffs claim res ipsa loquitur is applicable here
because “[e]xperiencing unforeseen injuries from an obstruction
while traversing a business property does not occur in the
absence of a business’ negligence.”

The Court does not find

this allegation allows for the application of res ipsa loquitur.
Indeed, every day, individuals arrive on a “business property”
and unexpectedly slip, trip, or fall through no fault of the
particular store.
“Whether an occurrence ‘ordinarily bespeaks negligence’
depends on the balance of probabilities being in favor of
negligence.”
1981).

Buckelew v. Grossbard, 435 A.2d 1150, 1157 (N.J.

“Hence, res ipsa is available if it is more probable

than not that the defendant has been negligent.”
Auth. of N.Y. & N.J., 723 A.2d 45, 51 (N.J. 1999).

Myrlak v. Port
The Court

finds this is not a case where it is more probable than not
Tractor Supply has been negligent.

It appears as equally

possible that Mr. Senisch’s injuries were a result of his own
negligence in not observing the hand truck before the collision
22

or that the injury resulted from the negligence of a third party
who placed the hand truck next to the Plaintiff.
The Supreme Court of New Jersey has applied this doctrine
to cases “including the collapse of a stairway in a new building
on which a plaintiff was standing, or where a soda bottle
explodes without warning, . . . or where an automatic door at a
supermarket suddenly swings backwards.”

Khan, 975 A.2d at 395

(citations omitted) (first citing Brown, 471 A.2d 25; then
citing Bornstein, 139 A.2d 404; and then citing Jerista v.
Murray, 883 A.2d 350 (2005)).

These instances are

distinguishable from the case at hand.

It is difficult to see

how the collapse of a stairway could be caused by an individual
standing on it, or who else would be responsible for such an
incident other than the owner.

Similarly, it is difficult to

find how an individual could be at fault for an automatic door
swinging backwards at a store.

It seems clear that such an

incident would be traceable to the owner there as well.

In this

case, however, it is clear there is a possibility Mr. Senisch’s
neglect could have contributed to the accident rendering it not
obvious that Tractor Supply must have been at fault.
Further, the Court does not find the instrumentality was
within Defendants’ exclusive control.

Other patrons, no matter

what Defendants did (short of not providing or allowing hand
trucks), also controlled the placement of the hand trucks.
23

Accordingly, the Court does not find res ipsa loquitur
applicable to this case.
C. Strict Liability
Plaintiffs also premise liability on a strict liability
theory for Defendants’ alleged engagement in an “ultra-hazardous
activity.” 11

“[T]he Supreme Court of New Jersey adopted the

analysis of the Restatement (Second) of the Law of Torts (1977)
. . . to determine whether a defendant should be strictly liable
for an ‘abnormally dangerous’ activity.”

In re Complaint of

Weeks Marine, Inc., No. 04-494, 2005 WL 2290283, at *4 (D.N.J.
Sept. 20, 2005) (quoting State, Dep’t of Envtl. Prot. v. Ventron
Corp., 468 A.2d 150, 157 (1983)).
In determining whether an activity is abnormally
dangerous, New Jersey courts have adopted a six-part
test.
Courts must consider: (a) existence of a high
degree of risk of some harm to the person, land or
chattels of others; (b) likelihood that the harm that
results from it will be great; (c) inability to eliminate
the risk by the exercise of reasonable care; (d) extent
to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where
it is carried on; and (f) extent to which its value to
the community is outweighed by its dangerous attributes.
Bonnieview Homeowners Ass’n, LLC v. Woodmont Builders, L.L.C.,

11

New Jersey has replaced the term “ultra-hazardous” with
“abnormally dangerous.” See T & E Indus., Inc. v. Safety Light
Corp., 546 A.3d 570, 575 (N.J. Super. Ct. App. Div. 1988) (“The
[Supreme Court] retained the doctrine of absolute liability;
however, it used the description ‘abnormally dangerous’ for
‘ultra-hazardous’ in describing the activity for which that
doctrine will apply.”).
24

655 F. Supp. 2d 473, 519 (D.N.J. 2009) (quoting T & E Indus.,
Inc. v. Safety Light Corp., 587 A.2d 1249, 1259 (D.N.J. 1991)).
“All of the factors are to be considered . . . .”

Id.

While “no single factor in § 520 alone is necessarily sufficient
for the conclusion that an activity is abnormally dangerous,” a
court must ordinarily “find that several factors apply in order
to impose strict liability.”

Id.

“Applying the Restatement

multi-faceted test, courts agree that the question of whether a
specific activity is abnormally dangerous and, thus, gives rise
to strict tort liability, is a question of law for the court to
resolve.”

Ely v. Cabot Oil & Gas Corp., 38 F. Supp. 3d 518, 529

(M.D. Pa. 2014).
Plaintiffs allege Defendants’ “ultra-hazardous activity”
was “[i]nviting a customer invitee onto TSC’s property when
there is no secure proper placement location and/or exacting
regulation of heavy and dangerously misplaced, ‘wheeled
merchandise carriers.’”

The Court does not find this

constitutes an abnormally dangerous activity such that strict
liability would apply.

First, allowing customers to use hand

trucks does not carry a high degree of harm.
that could result is unlikely to be great.

Second, any harm
While the Court does

not discount the severity of Mr. Senisch’s injuries, the Court
does not find these injuries typical of the harm that would
likely result from tripping on a hand truck.
25

Significantly, the Court finds that any risk posed by the
hand trucks can be easily eliminated with reasonable care.

As

stated earlier, Plaintiffs recognize that these hand trucks are
large objects.

An individual is not unable to eliminate the

risk by keeping an eye out for abandoned hand trucks.

Further,

providing hand trucks, carts, or other equipment to facilitate
patrons at a store moving merchandise from the store into their
vehicles is common.

There is hardly a commercial store that

does not provide some type of equipment for such purpose,
whether it be shopping carts, baskets, hand trucks, or platform
trucks.

Providing this equipment for such uses at commercial

establishments is appropriate, particularly at a hardware store
where the merchandise is often large and difficult to carry.
Finally, given this Court’s finding of a lack of dangerous
attributes, the Court finds the value to the community outweighs
such minimal dangerous attributes, as these hand trucks clearly
provide a benefit to patrons who require aid in transporting
merchandise to their vehicles.

Accordingly, the Court does not

find Tractor Supply engaged in an abnormally dangerous activity,
and the Court will not apply strict liability in this case.
Based on this conclusion, the Court will also deny
Plaintiffs’ cross-motion for summary judgment.
D. Negligence per se
“Under New Jersey law, a negligence per se claim is
26

supported by a violation of a statute or regulation when said
statute or regulation ‘serve[s] to impose direct tort
liability.’”

Lee, 2016 WL 3041845, at *2 (alteration in original)

(quoting Chelsea Check Cashing, L.P. v. Toub, No. 02-5557, 2006
WL 54303, at *3 (D.N.J. Jan. 9, 2006)).

To begin the analysis

of a negligence per se claim, “the Court must first look to the
statute or regulation that was violated.”

Id.

In their complaint, Plaintiffs plead negligence per se as
follows:
The Defendants’ actions were in direct violation of
The International Building Code and N.J.A.C. Uniform
Fire Safety Act 52:27D-192 et. seq. as judged as violated
by Vineland Fire Prevention Bureau officials as a repeat
offense by a $1000.00 fine for obstruction of entrance
and exit “passage and pathways” for protection of the
general public; the Defendants’ action were in direct
violation of customary practices of other similar retail
businesses use of “Cart Corals” (storage areas or by any
other name given) in the vicinity of the Vineland TSC
store and, therefore, Defendants’ actions constitute
negligence per se. 12
12

Plaintiffs’ brief adds little in terms of elaborating on
their negligence per se claim:
Pertaining to Negligence Per Se, the plaintiffs
attest that the obstruction of the hand truck which
caused injury was situated within the ingree/egress of
the entranceway to the store.
A violation of an
accessible means of egress (is thus, in turns a means of
ingress) must be provided according to the International
Building Code (IBC). Issued by the International Code
Council (ICC), A means of egress/(ingress) is an
unobstructed path to leave/(or enter) buildings,
structures, and spaces and also listed in Exhibit P-8 in
an OPRA acquire fine to Tractor Supply-Vineland.
Plaintiffs have provided in discovery to Tractor
Supply OPRA from the State of New Jersey and Vineland’s
27

Accordingly, Plaintiffs allege three bases for their negligence
per se claim: (1) the International Building Code; (2) N.J.S.A.
52:27D-192, and (3) customary practices.
“Ordinarily, the determination that a party has violated ‘a
statutory duty of care is not conclusive on the issue of
negligence, it is a circumstance which the jury should consider
in assessing liability.’”

Eaton v. Eaton, 575 A.2d 858, 866

(N.J. 1990) (quoting Waterson v. Gen. Motors, 544 A.2d 357, 370
(1988)).

“The reason is that statutes rarely define a standard

of conduct in the language of common-law negligence.

Hence,

proof of a bare violation of a statutory duty ordinarily is not
the same as proof of negligence.”

Id.

However, “[w]hen . . . a

statute specifically incorporates a common-law standard of care,
a jury finding of a statutory violation constitutes a finding of
negligence.”

Id.

Beginning with the alleged violation of the International
Building Code, the Court notes New Jersey has adopted the
International Building Code as a sub-code within the UCC.

MNR

Clat, LLC v. Township of Montclair, No. 499-13, 2014 WL 7466551,

Fire Marshall documenting fires incurred as continued
negligent to strict liability of their customer invitees
pertaining to blockage of Fire Exits and Locked Gated
Exit Ways which showed a consistent neglect and
negligence of a strict liability for customer invitees
even way after the plaintiff’s injury.
28

at *3 (N.J. Super. Ct. App. Div. Jan. 6, 2015); accord Nicolas
v. Riverview Towers Apartment Corp., No. 5366-12, 2014 WL
7797081, at *1 (N.J. Super. Ct. App. Div. Feb. 12, 2015).
However, “under New Jersey law, violations of administrative
regulations are . . . not proof of negligence per se.”

Cruz v.

ATCO Raceway, Inc., No. 12-5143, 2015 WL 4040619, at *5 n.6
(D.N.J. July 1, 2015); accord Bedford v. Riello, 920 A.2d 693,
700 (N.J. Super. Ct. App. Div. Apr. 18, 2007) (“[V]iolation of
an administrative code provision, while not negligence per se,
[is] evidence of negligence.”).

Accordingly, any alleged

violation of the International Building Code, as adopted in the
New Jersey administrative code, does not constitute negligence
per se.
Plaintiffs further plead a violation of the Uniform Fire
Safety Act, N.J.S.A. 52:27D-192.

However, Plaintiffs fail to

tell this Court specifically how this statute was violated.
Further, no evidence was proffered regarding a violation of this
statute other than a hand truck located at the entrance of the
store.

This Court can also discern no common law standard of

care provided in the Uniform Fire Safety Act that would apply to
this matter.
fire.

In any event, Mr. Senisch was not injured in a

The statute does not intend to protect an individual from

tripping over an object in the ordinary course of a business
day.

Accordingly, the alleged violation of the Uniform Fire
29

Safety Act similarly cannot constitute negligence per se.
Plaintiffs also state in their complaint that “Defendants’
action[s] were in direct violation of customary practices of
other similar retail businesses use of ‘Cart Corals’ . . . in
the vicinity of the Vineland TSC store and, therefore,
Defendants’ actions constitute negligence per se.”

An industry

“custom practice” is similarly insufficient for negligence per
se.
VI.
As Plaintiffs’ negligence, res ipsa loquitur, strict
liability, and negligence per se counts do not survive summary
judgment, the derivative loss of consortium claim similarly must
be dismissed.

See Thompson v. AT&T Corp., 371 F. Supp. 2d 661,

685 (W.D. Pa. 2005) (“Claims for loss of consortium are
derivative of the spouse’s claims and to the extent that such
claims are dismissed, so must the claims for consortium be
dismissed.”).
An appropriate Order will be entered.

Date: January 8, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

30