DUFF v. WAL-MART STORES EAST, LP
OPINION. Signed by Judge Jerome B. Simandle on 6/19/2017. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 16-1095 (JBS/JS)
WAL-MART STORES EAST, LP
Christopher J. Culleton, Esq.
Joseph P. Guzzardo, Esq.
Swartz Culleton PC
547 E. Washington Ave.
Newtown, PA 18940
Attorneys for Plaintiff
Gwyneth Rhian Williams, Esq.
Patrick J. McDonnell, Esq.
McDonnell & Associates, P.C.
500 Route 70 West
Cherry Hill, NJ 08002
Attorneys for Defendant
SIMANDLE, District Judge:
In this case, Plaintiff Robert Duff seeks compensation for
an injury sustained after allegedly tripping over fishing wire at
the Turnersville, New Jersey location of Defendant Wal-Mart
Stores East, LP (‘‘Wal-Mart’’). Before the Court is Defendant
Wal-Mart’s motion for summary judgment. For the reasons that
follow, the Court will deny Defendant’s motion.
Plaintiff Robert Duff walked into Wal-Mart at 1:30 pm on
Friday December 12th, 2014, and walked straight to the automotive
department. (Deposition of Robert Duff (‘‘Duff Dep.’’) at 30:913, 31:2-7.) Approximately ten to fifteen minutes later,
Plaintiff was turning out of the store’s main center aisle into
the automotive aisle with his cart in front of him when his feet
stopped moving, his ‘‘legs got pulled out,’’ and he ‘‘felt a
tweak.’’ (Id. at 35:20, 44:2-3, 49:6-14.) Plaintiff looked down
but couldn’t see anything wrapped around his feet until he
reached down and physically grabbed fishing wire he had become
tangled in. (Id. at 37:1-3.) Plaintiff did not observe any
fishing wire before the incident. (Id. at 33:19-21.) He also did
not notice any other customers or employees in the automotive
aisle. (Id. at 35:1-5,9-17.)
After Plaintiff tripped, he looked up and noticed a woman in
the same aisle, approximately fifteen to twenty feet away,
gathering up the wire and handing it to an employee in the next
department over. (Id. at 38:20, 40:17-18.) After Plaintiff
untangled himself, he went to the customer service desk, and
spoke with Customer Service manager Aapria Williams. (Id. at
51:11-13.) Approximately fifteen minutes later, Ms. Williams
wrote an incident report and gave it to her manager. (Deposition
of Aapria Williams (‘‘Williams Dep.’’) at 13:21-24, 14:3-5.) Ms.
The Court distills this undisputed version of facts from the
parties’ statements of material facts, affidavits, and exhibits,
and recounts them in a manner most favorable to Plaintiff, as
the party opposing summary judgment.
Williams testified that when there is a customer incident, it is
Wal-Mart’s accident protocol for management to take pictures of
the area, have witnesses fill out statements, and burn a disk of
any video footage captured for the customer’s file. (Id. at
17:12-25, 18:1.) Wal-Mart has cameras everywhere inside except
the bathrooms. (Id. at 12:4-6.) However, in this case, the line
on Plaintiff’s incident report that asks whether video footage is
available was left blank. (Deposition of Joann Joseph (‘‘Joseph
Dep.’’) at 25:5-12.)
Assistant Manager Jennifer Mentzer, who was on duty at the
time, walked back to observe where the incident occurred.
(Deposition of Jennifer Mentzer (‘‘Mentzer Dep.’’) at 14:3-4.)
However, contrary to Wal-Mart’s accident protocol, Ms. Mentzer
does not recall taking pictures of the area or checking for video
footage. (Id. at 14:1-18.) In her seven years as a Wal-Mart
employee she had never had an incident where someone claimed they
were injured by fishing wire. (Id. at 16:16-18.)
Plaintiff decided not to take an ambulance from the store
but rather would wait to see how he felt the next day. (Duff Dep.
at 51:23-25.) He left the store after purchasing his items and
alerting the store employees of the incident and returned the
next day to file an official report. (Id. at 50:8-19.)
This case was filed in the United States District Court for
the District of New Jersey on February 25, 2016. [Docket Item 1.]
After the parties exchanged discovery, Defendant filed a motion
for summary judgment [Docket Item 15.] 2 Plaintiff filed an
opposition brief [Docket Item 18] and Defendant filed a reply.
[Docket Item 19.] The Court will decide this motion without
holding oral argument pursuant to Fed. R. Civ. P. 78.
III. STANDARD OF REVIEW
At summary judgment, the moving party bears the initial
burden of demonstrating that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once a properly supported
motion for summary judgment is made, the burden shifts to the
non-moving party, who must set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). In reviewing a motion for summary
judgment, the court is required to examine the evidence in light
most favorable to the non-moving party, and resolve all
reasonable inferences in that party's favor. Scott v. Harris, 550
U.S. 372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d
A factual dispute is material when it ‘‘might affect the
outcome of the suit under the governing law,’’ and genuine when
‘‘the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’’ Anderson, 477 U.S. at 248. The
Also pending at this time are motions before Magistrate Judge
Joel Schneider about spoliation of evidence which have no
bearing on the present motion for summary judgment. Whether or
not Mr. Duff is ultimately entitled to a negative inference from
the absence of video footage of his accident, there are disputes
of fact in this case that require a jury’s consideration.
non-moving party ‘‘need not match, item for item, each piece of
evidence proffered by the movant,’’ but must simply present more
than a ‘‘mere scintilla’’ of evidence on which a jury could
reasonably find for the non-moving party. Boyle v. Cnty. Of
Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir.
1998) (quoting Anderson, 477 U.S. at 252).
In a negligence action under New Jersey law, a plaintiff
must establish ‘‘(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 Development Corp.,
119 N.J. 878, 885-86 (N.J. 2015). In this case, as a commercial
premises owner, Defendant owed Plaintiff, a business invitee, a
duty to ‘‘guard against any dangerous conditions on the property
that the owner either knows about or should have discovered, and
to conduct a reasonable inspection to discover latent dangerous
conditions.’’ Stelluti v. Casapenn Enters., LLC, 1 N.J. 678, 691
(N.J. 2010) (citing Hopkins v. Fox & Lazo Realtors, 625 N.J. 1110
(N.J. 1993)) (internal citations and punctuation omitted). In
addressing the issue of breach, ‘‘an injured plaintiff asserting
a business owners breach of duty of care 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
accident.’’ Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563
New Jersey’s mode-of-operation rule is an exception to the
general rule that the plaintiff bears the burden of proving all
elements of his negligence action, and is implicated if the
injury occurs in a self-service setting ‘‘in which customers
independently handle merchandise without the assistance of
employees.’’ Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J.
245, 262 (N.J. 2015). The rule applies only to sections of a
store that are affected by self-service, although this is not
limited to the produce aisle of supermarkets and other
traditional self-service areas. Id.; see also O’Shea v. K Mart
Corp., 304 N.J. Super. 489, 495 (App. Div. 1997) (holding that
self-service areas are not limited in scope to the produce aisles
of a grocery store). Additionally the rule may apply to
situations where either the customer or employee previously
handled the product or equipment, or the risk of injury is
inherent in the merchandise itself. Prioleau, 233 N.J. at 263. If
applied, the plaintiff is relieved of the burden of showing the
defendant’s actual or constructive knowledge of the dangerous
condition, creating an inference of negligence and shifting the
burden to the defendant, who must prove they exercised due care.
Id. Absent an explanation by the defendant, the issue of due care
is determined by a jury. Bozza v. Vornado, Inc., 42 N.J. 355, 359
In this case, the mode-of-operation rule applies because
Wal-Mart’s sporting goods and automotive departments are selfservice sections of the store. Plaintiff did not see any
employees, nor did any employees approach him, in the
approximately ten minutes he conducted his shopping. (Duff Dep.
at 35:9-17.) This lack of supervision is indicative of Wal-Mart’s
intention that customers are free to browse, independently
examine, and remove merchandise from the shelves. See O’Shea, 304
N.J. Super. at 484 (holding that the lack of sales associates in
the fifteen minutes a customer was conducting her shopping
indicated K Mart’s intent that customers remove and reshelf golf
bags in the sporting goods department of the store). This created
an inherent risk that customers might mishandle merchandise, by,
for example, perhaps not properly reeling in fishing wire and
instead leaving it on the floor of the aisle. See Craggan v. Ikea
United States, 332 N.J. Super. 53, 63 (App. Div. 2000) (‘‘IKEA’s
mode of operation to facilitate self-service removal of purchased
items created a reasonable probability that the string would not
be properly coiled in its container after each use, would
accumulate in the loading area, and create a tripping hazard for
anyone using the area.’’).
There is a clear nexus between the self-service section of
Wal-Mart and the injury that allegedly occurred. Although the
parties dispute where, exactly, Plaintiff’s accident occurs, that
dispute is immaterial at this point because Wal-Mart does not
restrict customers from removing merchandise from its designated
departments, and can anticipate items being carried around the
store. See Devincentis v. Wal-Mart Stores, Inc., Civil NO. 093138, 2010 U.S. Dist. LEXIS 47234, *1 (D.N.J. May 12, 2010)
(stating that the mode-of-operation rule applied in a slip and
fall case in an area of the store where drinks were not sold
because Wal-Mart does not restrict customers from carrying their
drinks outside the self-service section of the store).
Defendant argues that Plaintiff cannot prove that Wal-Mart
had actual or constructive knowledge of the wire because he
cannot show how long the wire had been in the aisle or how it had
gotten there prior to Plaintiffs injury. Defendant’s emphasis on
actual or constructive knowledge is misplaced because the modeof-operation rule applies to this case and Plaintiff need not
show that Defendant had actual or constructive knowledge of a
hazard. Likewise, Defendant’s position that the mode of operation
rule cannot apply because Plaintiff has adduced no evidence that
Wal-Mart was aware of a dangerous condition warranting
application of the rule is incorrect. (Defendant’s Reply Brief at
6.) Actual knowledge is not a prerequisite to the implication of
the mode-of-operation rule. See Nisivoccia, 175 N.J. at 563
(holding that the Plaintiff need not show actual or constructive
knowledge in circumstances where a dangerous condition is likely
to occur due to the nature of the business). Rather, the rule is
applied when injuries occur in self-service areas of a store,
precisely in situations when the Plaintiff cannot prove actual or
constructive knowledge. See Balsamides v. Wal-Mart Stores, Inc.,
Civil NO. 06-5676, 2011 U.S. Dist. LEXIS 58009, *1-2 (D.N.J. May
31, 2011) (‘‘The burden shifting of the mode-of-operation rule
recognizes that a plaintiff may not know the source of the
dangerous condition that caused his or her injury.’’).
Having determined that the mode-of-operation rule applies
to this case, Plaintiff is relieved of his burden of showing that
Wal-Mart had actual or constructive knowledge of the dangerous
condition prior to the incident, and is afforded an inference of
negligence. Wal-Mart’s production of general safety policies,
calling for safety sweeps on a regular basis and immediate
cleaning of spills and tripping hazards, is not sufficient to
defeat its inference of negligence and grant summary judgment.
See O’Shea, 304 N.J. Super. at 493 (holding that a manager’s
testimony of store employees routine inspections during business
hours was not enough to grant summary judgment and that whether
the store used due care was a question of fact for the jury).
Here, as in O’Shea, a reasonable jury could conclude that given
the self-service nature of its business, Defendant did not
conduct reasonable care in attempting to prevent injuries.
Defendant’s motion for summary judgment will be denied.
An accompanying order will be entered.
June 19, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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