Donahue v. Target Corp.

          PERSKIE FENDT & CANNADAY, P.C. By: Robert T. Fendt, Esq. Counsel for Plaintiffs

          KANTROWITZ & PHILLIPPI, LLC By: Polly N. Phillippi, Esq. Counsel for Defendant

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This is a diversity premises liability suit.^[1] 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.

         I.

         Plaintiff 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 pounds. (Id.)

         The box 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)

         Donahue 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)

         At her 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)

         The box 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)

         Donahue further testified:

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 ...