United States District Court, D. New Jersey
PERSKIE FENDT & CANNADAY, P.C. By: Robert T. Fendt, Esq.
Counsel for Plaintiffs
KANTROWITZ & PHILLIPPI, LLC By: Polly N. Phillippi, Esq.
Counsel for Defendant
L. HILLMAN, U.S.D.J.
a diversity premises liability suit. Plaintiff Rose Donahue
asserts that, while shopping at Defendant's Target store
in Mays Landing, New Jersey, she was injured as she removed a
heavy box from a waist-high shelf. Presently before the Court
is Target's Motion for Summary Judgment. For the reasons
set forth below, the motion will be denied.
Donahue went to her local Target store on September 25, 2011,
around mid-day, to purchase a bookcase that she had seen
advertised in Target's circular. (R. Donahue Dep. p.
32-33, 38) The bookcase was packed disassembled in one
rectangular box; the dimensions of which were 12 1/8 inches
wide, 39 1/2 inches high, and 7 inches deep. (Def's
Statement of Undisputed Facts, “SUF”, ¶ 6)
The box and disassembled bookcase together weighed 55.4
was displayed standing upright on a shelf that was
approximately four feet off the ground, with other
merchandise on a shelf below it. (Def's SUF ¶ 4-5;
Def's Ex. C) Two metal “safety arms” extended
out on either side of the box and bent inward at
approximately the middle of the upright box. (Def's SUF
¶ 5, Def's Ex. C)
testified that she navigated her shopping cart to the
furniture section of the store, and found the advertised
“5-shelf bookcase.” (R. Donahue Dep. p. 40;
Def's Ex. C) She further testified that she assumed the
box would not be heavy because the $26.00 price suggested to
her that the bookcase was likely made of “particle
board.” (Id. p. 46)
deposition, Donahue described what happened:
The shelf was about waist height and . . . I reached in and I
just picked it straight up. The silver bar was about to the
middle of the box . . . so I knew I had to get it over that
so I just picked it straight up [over my head]. . . . [Then]
the contents of the box . . . shifted to the right and [the
box] slipped right through my hands and the box came down on
an angle, hit my [right] cheekbone, . . . [t]hen my left
shoulder, . . . [and] left forearm. . . . [T]hen I, like
caught it with my legs and just heaved it into my [shopping
cart] that was to my right side there.
(R. Donahue Dep. p. 48-49, 51)
undisputedly was marked with two yellow “Team
Lift” labels which depict two people lifting a box
together. (Def's SUF ¶ 9-10) The label reads:
“FOR YOUR SAFETY . . . This merchandise is a TEAM LIFT
item. It is either too heavy or too bulky for one person
alone to handle safely. Please call guest service for
assistance.” (Def's SUF ¶ 11) Donahue
testified that she did not see the yellow stickers. (R.
Donahue Dep. p. 45)
Q: . . . Why didn't you call and ask for assistance to
lift the box off the shelf?
A: Well, because that it was on the [waist-high] shelf and
that it was $26, it was a small [bookcase] and that, you
know, anybody ...