The opinion of the court was delivered by: Kugler, United States District Judge:
NOT FOR PUBLICATION (Doc. No. 10)
This is a slip-and-fall case. Plaintiff Jennifer McCracken fell while shopping at a Target department store in Turnersville, New Jersey. She and her husband assert negligence claims against Defendant Target Corporation ("Target"). Before the Court is Target's motion for summary judgment denying Plaintiffs' claims. Target argues that video footage from a surveillance camera shows that Ms. McCracken slipped on a liquid spilled by another customer less than three minutes earlier and no Target employees or customers walked near the spill during the intervening three minutes. According to Target, summary judgment is proper because the video footage proves that Target did not have actual or constructive notice of the spill. The Court denies Target's motion for summary judgment because: (1) there is an issue of fact as to whether the spill was caused by the dropped bottle depicted on the video; and (2) under New Jersey law, if a customer falls because of spilled merchandise in a store that uses a self-service mode of operation, the storekeeper bears the burden of proving that it took reasonable measures to protect customers.
On August 11, 2007, Ms. McCracken and her husband, Plaintiff Christopher McCracken, along with their six-month old son, were shopping at the Target store in Turnersville, New Jersey. They arrived at the store at approximately 1:30 p.m. and shopped for roughly forty-five minutes. While the family was waiting to check out, Ms. McCracken left the queue to browse a section of the store called "Dollar World."*fn1 Dollar World is bounded by the check-out lanes on one side and the pathway for a main entrance to the store on the other side. Thus, customers entering the store walk directly past Dollar World. At the front corner of Dollar World, and directly adjacent to the main pathway into the store, there are several rows of shopping carts and a stack of shopping baskets.*fn2
The video footage from the surveillance camera shows that at approximately 2:22 p.m. a male customer cradling an unmanageable number of items with both hands walked up to the stack of shopping baskets and shoveled the items into a basket. One of the items, a white bottle, bounced off the rim of the basket and fell to the floor. The video appears to show a substance shooting from the bottle upon impact with the floor but Plaintiffs argue that the video is too blurry to see whether the bottle actually spilled any of its contents. After dropping the bottle, the customer bent over and tipped the bottle upright, but left it on the floor and walked away with the basket containing the other items. The video shows that, before the customer dropped the bottle, at least one other customer walked directly over the area where the bottle fell without any indication of a hazard or spill.
Ms. McCracken appears on the video carrying her son at approximately 2:25 p.m., less than two and a half minutes after the customer dropped the bottle. She initially walked past the bottle but then turned and walked directly over the area where the bottle fell. She then slipped and fell backward into the stack of shopping baskets. Her son's head hit the baskets as she tried to break their fall by grabbing for the adjacent shelves. Ms. McCracken later testified that while on the floor she observed a puddle of clear or yellow-tinted liquid that contained black bubbles. (Dep. of Jennifer McCracken 54:15-55:19). She also remembered that the substance had a mint smell and that there was a streak through the puddle that looked like a tire track from a shopping cart. (Id. at 68:4-69:1). The video footage shows that after the unidentified customer dropped the bottle, no other customers or Target employees walked through the spill area. Ms. McCracken does not know how the spill occurred or how long it was on the floor before she fell.
After Ms. McCracken fell, a Target employee identified the dropped bottle as a container of mouthwash. Target employees cleaned up the spill and called an ambulance. When the paramedics arrived, they spoke with Ms. McCracken and noticed that her son had a cut on his head. They determined, however, that it was not necessary for either of them to go to the emergency room. Plaintiffs nevertheless drove themselves to the hospital for examination. Ms. McCracken experienced neck, back, and ankle pain and the doctors did an x-ray of her ankle, which was negative. Her son was treated for minor abrasions. Ms. McCracken testified that her son has not experienced any long-term injuries as a result of the fall. (Dep. of Jennifer McCracken 72:3-74:10). However, Ms. McCracken obtained subsequent MRI's and testing showing that she suffered injuries to her neck and wrist. She has received further treatment for those injuries.
Plaintiffs filed the Complaint in July 2009 in the Superior Court of New Jersey. The Complaint includes negligence claims by Ms. McCracken against Target and unidentified persons and entities responsible for maintaining and cleaning Dollar World. The Complaint also includes and a claim by Mr. McCracken for loss of consortium based on Defendants' negligence. Target removed the matter to this Court based on diversity jurisdiction under 28 U.S.C. § 1332 and answered. In October 2010, Target made the instant motion for summary judgment. Target argues that the video surveillance footage proves that Target did not have actual or constructive knowledge of the hazard, and, therefore, the Court should deny Plaintiffs' negligence claims. Plaintiffs respond that Target should have discovered the hazard because Dollar World is a high-traffic area and the evidence suggests that the spill may have occurred before the unidentified customer dropped the bottle. Plaintiffs also argue that, under New Jersey law, a plaintiff survives summary judgment if she demonstrates that her fall was caused by spilled merchandise in a store that uses a self-service mode of operation. The parties submitted their respective briefs and the matter is now ripe for decision.
Summary judgment is appropriate where the Court is satisfied that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine issue of material fact exists only if the evidence is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the Court weighs the evidence presented by the parties, the Court is not to make credibility determinations regarding witness testimony. Sunoco, Inc. v. MX Wholesale Fuel Corp., 565 F. Supp. 2d 572, 575 (D.N.J. 2008). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
However, to defeat a motion for summary judgment, the nonmoving party must present competent evidence that would be admissible at trial. See Stelwagon Mfg. Co. v. Tarmac Roofing Sys., 63 F.3d 1267, 1275 n.17 (3d Cir. 1995). The nonmoving party "may not rest upon the mere allegations or denials of" its pleadings and must present more than just "bare assertions [or] conclusory allegations or suspicions" to establish the existence of a genuine issue of material fact. Fireman's Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982) (citation omitted); see Fed. R. Civ. P. 56(e). "A party's failure to make a showing that is '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 at trial,' mandates the entry of summary judgment." Watson v. Eastman Kodak Co., 235 F.3d 851, 857-58 (3d Cir. 2000) (quoting Celotex Corp., 477 U.S. at 322).
A.Plaintiffs' Negligence Claim Based on ...