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Duff v. Wal-Mart Stores East, LP

United States District Court, D. New Jersey

June 19, 2017

ROBERT DUFF, Plaintiff,

          Christopher J. Culleton, Esq. Joseph P. Guzzardo, Esq. Swartz Culleton PC Attorneys for Plaintiff

          Gwyneth Rhian Williams, Esq. Patrick J. McDonnell, Esq. McDonnell & Associates, P.C. Attorneys for Defendant


          Jerome B. Simandle U.S. 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.

         II. BACKGROUND [1]

         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 30:9-13, 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.

         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.


         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 ...

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