JENNINGS et al v. J.C. PENNEY CORP., INC.

Filing 21

OPINION fld. Signed by Judge Esther Salas on 9/3/15. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KATHLEEN JENNINGS and PATRICK
JENNINGS, Husband and Wife,
Plaintiffs,

Civil Action No. 13-4390 (ES) (MAH)

v.

OPINION

J.C. PENNEY CORP., INC. et al.,
Defendants.
SALAS, DISTRICT JUDGE
I.

Introduction
This action arises from a fall sustained by Plaintiff Kathleen Jennings (“Plaintiff”) while

shopping at the Woodbridge, New Jersey store of Defendant J.C. Penney Corporation, Inc. (“J.C.
Penney” or “Defendant”). Pending before the Court is J.C. Penney’s Motion for Summary
Judgment. (D.E. No. 15). The Court has considered the submissions accompanying the instant
motion and decides the motion without oral argument pursuant to Federal Rule of Civil
Procedure 78(b).

For the reasons set forth below, Defendants’ motion is GRANTED and

Plaintiff’s complaint is dismissed in its entirety.

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II.

Background 1
Plaintiffs allege that the J.C. Penney premises in the Woodbridge Center Mall were

unsafe and that, as a result, Plaintiff fell. (Def. SMF ¶ 2). At her deposition, Plaintiff stated that
she was familiar with the particular J.C. Penney store; she went there at least once a week for
many years since she grew up in the area. (Id. ¶¶ 4, 6).
On the date of the incident, Plaintiff went shopping at J.C. Penney with her mother, older
son, and one-year old child. (Id. ¶ 7). The one-year old was just learning to walk. (Id. ¶ 8).
Plaintiff was wearing shorts and “flip-flops.” (Id. ¶ 9). Plaintiff was walking down the floor
aisle and was holding her one-year old’s hand in her right hand. (Id. ¶¶ 10, 11). She turned to
the right and took a skirt on a hanger off the rack with her left hand. (Id. ¶ 12). The skirt rack
was on the right-hand side of the aisle. (Id. ¶ 13). Plaintiff did not step off the aisle on to the
carpeted area. (Id. ¶ 14). She turned to her left and took three steps towards her mother to show
her the skirt, which her mother did not like. (Id. ¶¶ 15, 16). Plaintiff testified that she “went to
turn around to put [the skirt] back and [she] felt something under [her] foot and [she] fell back.”
(Id. ¶ 16). Plaintiff’s mother helped her get up right away. (Id. ¶ 17). Plaintiff further testified
as follows:
Q: Did you look around you to see what had caused you to fall?
A: Yes.
Q: What did you see?
A: We didn’t see anything. My mom looked around and everything.
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These background facts are taken from the parties’ statements of facts under Local Civil Rule 56.1. (D.E. No. 153, Statement of Material Undisputed Facts Pursuant to L.Civ.R. 56.1 by J.C. Penney (“Def. SMF”); D.E. No. 16-2,
Counter Statement of Material and Disputed Facts Pursuant to Local Civil R. 56.1 by Plaintiffs (“Pl. CSMF”); D.E.
No. 20-1, Response of Defendant J.C. Penney to Plaintiffs’ Counterstatement of Material and Disputed Facts (“Def.
CSMF”)). The Court notes that Plaintiff admitted Defendant’s undisputed facts in their entirety, (Pl. CSMF ¶ 1),
and that Defendant disputes certain portions of Plaintiffs’ Counterstatement, (see, e.g., Def. CSMF ¶¶ 3, 8–12, 20).
The Court will “disregard all factual and legal arguments, opinions and any other portions of the 56.1 Statement
which extend beyond statements of facts.” Globespanvirata, Inc. v. Tex. Instrument, Inc., 2005 U.S. Dist. LEXIS
27820, at *10 (D.N.J. Nov. 10, 2005); see also L. Civ. +R. 56.1 (“Each statement of material facts . . . shall not
contain legal argument or conclusions of law.”).

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Q: Your mom looked around, as well?
A: Yes.
(Id. ¶ 18).
Plaintiff testified that, after she fell, she, her mother, and sons waited about ten minutes
for someone to come over to them. (Id. ¶ 19). An associate came over to them and said she
would go and find someone to help them. Plaintiff testified that they stood at the location for
another ten minutes and then walked over to the customer service. (Id. ¶ 20). Plaintiff gave a
report of the incident to a J.C. Penney employee, Raymond Brigantino, while standing
approximately five to ten feet away from the location where she fell. (Id. ¶ 21). Plaintiff
testified as follows:
Q: And did you give him a description of your fall?
A: Yes.
Q: And did he ask you what you fell on?
A: I told him that it was something under my foot. I said I really couldn’t explain
what it was. I felt something under my flip-flop, and I fell back. He said, okay,
that’s all I needed.
Q: There was something under your flip-flop that you believe caused you to fall.
Is that accurate?
A: Yes.
Q: You said that you looked around and didn’t see anything. Is that accurate?
A: Yes. We looked for it but couldn’t find anything.
Q: Did you look on your flip-flop?
A: Yes.
Q: Was your flip-flop wet?
A: No.
Q: Was there any sort of substance on your flip-flop?
A: No.
Q: What do you believe caused you to fall?
A: I believe that it was one of the—like the tags or it could have been a bottle cap,
maybe somebody left a bottle cap on the floor. I really don’t know.
Q: But you, yourself, did not find a tag or a bottle cap . . .
A: No, I didn’t. No.

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(Id. ¶¶ 22, 23). Plaintiff’s mother testified that she did not know what caused Plaintiff to fall,
that she did not see anyone drop anything on the floor, and she did not see any water on the floor.
(Id. ¶¶ 5, 24, 25).
Plaintiff served J.C. Penney with a notice of deposition, seeking “[r]epresentative(s) of
[J.C. Penney] familiar with the events of May 28, 2011, and familiar with the security,
maintenance and inspection procedures of [J.C. Penney].” (Pl. CSMF ¶¶ 2, 3). J.C. Penny
provided Mr. John Canaras, a loss prevention manager, in response to Plaintiff’s request. (Def.
CSMF ¶ 3). Mr. Canaras testified that after a person on the loss prevention team ensures the
well-being of a subject, namely a customer reporting an incident, the loss prevention officer
“would be responsible for inspecting the area and getting any necessary information regarding
the subject and completing” the incident report. (Def. SMF ¶¶ 26, 27). He further stated that the
goal of a loss prevention investigation is “to identify what happened and why it happened.” (Id.
¶ 28).
Mr. Canaras also testified regarding the inspection of aisles. He testified that he is not
aware of any exact schedule or mandate for aisles to be inspected, and that inspection is random
and there is no record or log kept. (Pl. CSMF ¶¶ 13, 14; Def. CSMF ¶¶ 13, 14). He testified that
he personally walks the aisles for fifty percent of his time in the store. (Def. SMF ¶ 29). He
estimated that he walks through the woman’s department up to fifteen times a day and two to
three times per hour on a typical Saturday afternoon. (Id. ¶ 30). The store manager, the
supervisors, and the associates are all also on the sales floor for most of the day. (Id. ¶ 32).
There are ten to fifteen sales people working in the women’s department on an average Saturday,
and there are three or four loss prevention officers working at the Woodbridge Center Mall
location. (Id. ¶¶ 45, 46). Loss prevention personnel spend approximately twenty percent of their

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time on the sales floor and, while they are on the sales floor, one of their duties is to inspect and
look out for hazards. (Id. ¶ 47). Mr. Canaras conducts “safety stand-up meetings” in the store,
during which he educates associates on “picking up any objects that are on the floor . . . and also,
to immediately address and type of spill, any type of liquid spill” in order keep the floor “clear.”
(Id. ¶¶ 33–35). Mr. Canaras estimated that the store in question is approximately 110,000 to
120,000 square feet. (Pl. CSMF ¶ 16; Def. CSMF ¶ 16). There is one main aisle that is made of
tile in the women’s department at the J.C. Penney store in the Woodbridge Center Mall. (Def.
SMF ¶ 31).
Mr. Canaras also testified that he communicates to associates, including sales people,
about how they are supposed to look out for hazards. He instructs them “that it’s everyone’s
responsibility to look out [and] maintain a safe environment.” (Id. ¶ 36). He testified he always
tells associates “see it, fix it; if you see an issue, fix and [sic] issue. It’s just part of the culture in
the store.” (Id. ¶ 37). In addition to associates, this instruction is directed to the store manager,
the assistant store manager, and loss prevention personnel. (Id. ¶ 38).
Mr. Canaras testified that incident reports are to be completed shortly after the incident
occurs, and that they are filled out and kept in the regular course of J.C. Penney’s business. (Id.
¶¶ 39, 48). In the customer version section of the report, the loss prevention officer states “the
information from the customer’s point of view, their description of what happened.” (Id. ¶ 42).
The person filling out the form is also supposed to inspect the area and give his or her description
of the area. (Id. ¶ 43). In the case at issue, the condition of the surface area is noted as clear and
dry. (Id. ¶ 44). In addition, the incident report is faxed to the insurance company shortly after
the incident occurs. (Id. ¶ 40). With regard to the report of the incident at issue, the fax line at

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the top of the document states it was faxed at 17:34, in other words, 5:34 PM, while the incident
is listed as occurring at 4:41 PM. (Id. ¶ 41).
Mr. Canaras also testified that the J.C. Penney store in question has recorded video
surveillance that is monitored by the loss prevention team, some of which runs constantly the
entire time the store is open. (Pl. CSMF ¶¶ 4–7; Def. CSMF ¶¶ 4–7). Mr. Canaras testified that
“there was no video of the actual incident” and he further testified that he did not review the
“recording” himself because generally, the person who fills out the incident report is the person
who checks the video to see if the incident was recorded. (Def. CSMF ¶ 8). With respect to the
incident report at issue, the parties dispute whether other individuals (including potential
witnesses) were interviewed about the incident, and the cause of Plaintiff’s fall. (See Pl. CSMF
¶¶ 9–11; Def. CSMF ¶¶ 9–11).
A six-count Complaint was filed in this matter on May 22, 2013, in the Superior Court of
New Jersey, Middlesex County, on behalf of plaintiffs Kathleen Jennings and Patrick Jennings,
her husband. (See D.E. No. 1-1, Ex. A, Complaint (“Compl.”)). The first five counts allege
injury to Kathleen Jennings as a result of the negligence of J.C. Penney and related “John Doe”
defendants; the sixth count alleges loss of consortium on behalf of Patrick Jennings. (Id.). On
July 19, 2013, the case was timely removed to this Court pursuant to 28 U.S.C. §§ 1441, 1446.
(D.E. No. 1). The parties conducted limited discovery on liability only and by Order dated
September 19, 2014, United States Magistrate Judge Michael A. Hammer directed J.C. Penney to
file a motion for summary judgment no later than December 12, 2014. 2 (D.E. No. 13). J.C.

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On December 4, 2014, Plaintiff sent former J.C. Penney employee Raymond Brigantino—whom J.C. Penney
admits has personal knowledge of the incident—a subpoena and notice of deposition to take place on December 15,
2014. (Pl. CSMF ¶ 3; Def. CSMF ¶ 3). However, by letter dated December 8, 2014, Mr. Brigantino’s counsel
advised Plaintiff’s counsel that the December 15, 2014 deposition would need to be rescheduled due to Mr.
Brigantino’s inability to take time off of work, and further advised that Mr. Brigantino objected to being deposed
after the December 12, 2014 filing date of J.C. Penney’s motion for summary judgment. (D.E. No. 16-1, Affidavit
of J. Stewart Grad, Esq. Ex. D). Also on December 8, 2014, defense counsel filed a letter with the Court,
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Penney filed the instant Motion for Summary Judgment on December 12, 2014. (See D.E. No.
15-4, Memorandum of Law in Support of the Motion by Defendant J.C. Penney Corporation,
Inc. for Summary Judgment (“Def. Mov. Br.”)). Plaintiff submitted her opposition on December
22, 2014, (see D.E. No. 16, Brief in Opposition to Summary Judgment Motion (“Pl. Opp. Br”)),
and J.C. Penney filed a reply on January 13, 2015, (see D.E. No. 20, Memorandum of Law in
Reply to Plaintiffs’ Opposition to the Motion for Summary Judgment by Defendant J.C. Penney
Corporation, Inc. (“Def. Reply Br.”)). The motion is now ripe for adjudication.
III.

Legal Standard
Summary judgment is proper if the pleadings, depositions, answers to interrogatories,

admissions, and affidavits show that there is no genuine issue as to any material fact, and if,
when viewing the facts in the light most favorable to the non-moving party, the moving party is
entitled to a judgment as a matter of law. Pearson v. Component Tech. Corp., 247 F.3d 471, 482
n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R.
Civ. P. 56(c). A genuine issue of material fact exists for trial when a reasonable finder of fact
could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “To be material, a fact must have the potential to alter the outcome of the case.”
DeShields v. Int’l Resort Props. Ltd., 463 F. App’x 117, 119 (3d Cir. 2012).
The moving party must first show that no genuine issue of material fact exists. Celotex
Corp., 477 U.S. at 323. If the movant meets this burden, the burden then shifts to the nonmoving party to present evidence that a genuine issue of material fact compels a trial. Id. at 324.
Although the Court must consider all facts and their reasonable inferences in the light most

specifically asking Judge Hammer to quash the subpoena of Mr. Brigantino until after the motion for summary
judgment was decided. (D.E. No. 14). A review of the docket shows that no further action was taken with respect
to Mr. Brigantino’s deposition, either by the Court or by the parties. However, because the Court finds that J.C.
Penney is entitled to summary judgment, the request to depose Mr. Brigantino is denied as moot.
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favorable to the non-moving party, see Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.
1995), the non-moving party must offer specific facts that establish a genuine issue of material
fact—not just “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). Thus, the non-moving party may not
rest upon the mere allegations or denials in its pleadings, or unsupported assertions, bare
allegations, or speculation to defeat summary judgment.

See Celotex, 477 U.S. at 324;

Longstreet v. Holy Spirit Hosp., 67 F. App’x 123, 126 (3d Cir. 2003).
IV.

Discussion
Defendant argues that Plaintiff cannot prove a prima facie case of negligence because

there is no evidence in the record that J.C. Penney breached its duty of care to Plaintiff.
Defendant first contends that the mere fact that Plaintiff fell is not evidence that there was a
substance or object on the floor and there is no evidence in the record that a dangerous condition
existed. (Def. Mov. Br. at 13–14). Additionally, Defendant argues that even if a dangerous
condition existed, there is no evidence that J.C. Penney had knowledge of it. (Id. at 14–21).
Plaintiff argues that “there are disputed issues of fact as to whether [J.C.] Penney[]
properly and regularly monitored, cleaned and swept the area where Jennings fell and thereby
caused a dangerous condition.” (Pl. Opp. Br. at 2). Plaintiff contends that she does not need to
provide “first hand personal knowledge as to why she fell” and that the motion should be denied
because “determination of material disputed facts depends primarily on credibility evaluations.”
(Id. at 3–6). In addition, Plaintiff argues that there is a genuine issue of material fact as to
whether J.C. Penney intentionally destroyed evidence, which Plaintiff contends could result in an
adverse inference against J.C. Penney. (Id. at 6–11).

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Under New Jersey law, 3 there are four elements in an action for negligence, namely (1) a
duty of care owed to plaintiff by defendant; (2) a breach of that duty by defendant; (3) proximate
cause; and (4) actual damages. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 400 (2009).
The plaintiff bears the burden of proving each of these elements. Cashour v. Dover Parkade,
LLC, No. A-4241-11T2, 2013 WL 560914, at *3 (N.J. Super. Ct. App. Div. Feb. 15, 2013).
“The mere showing of an incident causing the injury sued upon is not alone sufficient to
authorize the finding of an incident of negligence. . . . An inference [of negligence] can be drawn
only from proved facts and cannot be based upon a foundation of pure conjecture, speculation,
surmise or guess.” Long v. Landy, 35 N.J. 44, 54 (1961) (internal citation and quotation marks
omitted).
“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., 175 N.J. 559, 563 (2003). “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. An injured plaintiff must
prove that the defendant had actual or constructive knowledge of the dangerous condition that
caused the accident.

Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984).

Constructive knowledge is “if the condition had existed for such a length of time that [the
defendant] should have known of its presence.” Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964).
Here, summary judgment is warranted because there is no evidence in the record from
which a reasonable finder of fact could return a verdict for Plaintiff.

3

Erie provides that a federal court sitting in diversity must apply substantive state law and federal procedural law.
Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The parties do not dispute that New Jersey substantive law applies
here.
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First, aside from Plaintiff’s speculations, there is no evidence in the record that a
dangerous condition existed. Plaintiff testified that she felt “something” under her flip-flop
which caused her to fall—perhaps a tag or a bottle cap—but that “I really don’t know.” (Def.
SMF ¶¶ 22, 23). In fact, the evidence in the record demonstrates that neither Plaintiff nor her
mother could find any object or substance on the floor where Plaintiff slipped, there was nothing
on Plaintiff’s flip-flop after she fell, and the incident report indicates that the floor was clear and
dry. (Id. ¶¶ 22–25, 44). As previously noted, however, “[t]he mere showing of an incident
causing the injury sued upon is not alone sufficient to authorize the finding of an incident of
negligence. . . . An inference [of negligence] can be drawn only from proved facts and cannot be
based upon a foundation of pure conjecture, speculation, surmise or guess.” Long, 35 N.J. at 54;
see also Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011)
(“‘[U]nsubstantiated inferences and feelings’ are not sufficient to support or defeat a motion for
summary judgment.”) (quoting Oakley v. Wianecki, 345 N.J. Super. 194, 201 (App. Div. 2001)).
Therefore, even giving Plaintiff full credibility and every inference in her favor, she cannot meet
her burden of establishing the existence of a dangerous condition. See Celotex, 477 U.S. at 322
(“[T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof of trial.”).
Plaintiff’s reliance on two cases as “persuasive and applicable” is misplaced. (See Pl.
Opp. Br. at 5 (citing Ratering v. Mele, 11 N.J. Super. 211 (App. Div. 1951) and Parmenter v.
Jarvis Drug Store, Inc., 48 N.J. Super. 507 (App. Div. 1957)).

In Ratering, a plaintiff

established that a set of steps was “littered with enumerated foreign substances” and she alleged
that she slipped on one of them and fell. 11 N.J. Super. at 214. The Appellate Division found

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that the plaintiff’s inability to specifically pinpoint which particular foreign substance caused her
to fall “would not appear to be significant.” Id. In other words, the plaintiff in Ratering was able
to establish that a dangerous condition existed, even if she could not precisely say which aspect
of the condition caused her to fall. Similarly, in Parmenter, the issue there was whether the
defendant had notice of the wet floor on which plaintiff slipped. 48 N.J. Super. at 510. Thus, the
plaintiff had clearly identified the dangerous condition—the wet floor. Therefore, both Ratering
and Parmenter are distinguishable from the facts of this case and do not relieve Plaintiff of her
burden from establishing the existence of a dangerous condition. Plaintiff cannot meet that
burden here, where she cannot show that a dangerous condition existed beyond her unsupported
and conclusory statement that she felt “something” which caused her to fall, and where no object
or substance was located.
Second, even if there was evidence in the record to support Plaintiff’s claim that a
dangerous condition existed which caused Plaintiff to fall, there is no evidence in the record from
which a reasonable trier of fact could conclude that Defendant had notice of the condition.
Plaintiff did not directly address this point in her opposition brief, and has not identified any
evidence which suggests that Defendant had actual or constructive notice of the dangerous
condition which could support a prima facie showing of negligence.

Brown, 95 N.J. at 291

(noting that an injured plaintiff must prove that the defendant had actual or constructive
knowledge of the dangerous condition that caused the accident); see also Martin v. Unknown
U.S. Marshals, 965 F. Supp. 2d 502, 527 (D.N.J. 2013) (noting that bare allegations or
speculation not enough to defeat summary judgment). In fact, the evidence shows that the area
where plaintiff fell, specifically the women’s department, was regularly monitored by numerous
J.C. Penney associates and that every associate, from a salesperson to the store manager, was

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trained to and had the obligation to identify potential hazards and rectify any hazard observed.
(Def. SMF ¶¶ 29–35). Thus, summary judgment is also warranted on this basis because Plaintiff
has failed to adduce any specific evidence which demonstrates that J.C. Penney had notice of the
allegedly dangerous condition.
Furthermore, the Court disagrees with Plaintiff to the extent that she contends that issues
regarding comparative negligence, (Pl. Opp. Br. at 2–3), or proximate causation, (id. at 3–4) are
sufficient to defeat summary judgment. Because Plaintiff cannot point to evidence showing that
a dangerous condition existed, let alone that J.C. Penney had notice of it, Plaintiff cannot meet
her prima facie burden of showing that Defendant breached a duty of care, and so issues of
comparative negligence or proximate causation are beside the point.
Finally, the Court notes that the potential issue of spoliation is not enough to defeat
summary judgment. Plaintiff claims that “there may be a genuine issue of material fact as to
whether [J.C.] Penney[] intentionally (i.e. willfully) withheld, altered or destroyed evidence or
failed to preserve evidence helpful to Mrs. Jennings.” (Pl. Opp. Br. at 1) (emphasis added).
However, the evidence in the record is that no video evidence ever existed of this incident. (See
Def. CSMF ¶ 8). Plaintiff’s speculation that evidence may have been destroyed is not sufficient
to defeat summary judgment when there is no evidence in the record to support such a claim. 4
V.

Conclusion
For these reasons, the Court GRANTS Defendants’ motion for summary judgment. An

accompanying Order follows this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.

4

To the extent that Plaintiff believes she has a separate claim for fraudulent concealment, the Court simply notes
that this separate tort has not been pled, and Plaintiff has not sought to amend her pleadings to include it. Thus, this
potential claim is irrelevant to the instant motion.
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