United States District Court, D. New Jersey
MICHAEL CHARLES SENISCH Appearing pro se
ETTA SENISCH Appearing pro se
CHRISTOPHER E. MARTIN, SETH M. GARROD, MORRISON MAHONEY LLP,
WATERVIEW PLAZA On behalf of Defendants Tractor Supply
Company, AON Corporation, and Gallagher Basset Services
K. JACKSON STYLIADES, JACKSON & DIMEO On behalf of TKC XC
LLC % The Keith Corporation
L. HILLMAN, U.S.D.J.
a negligence case arising from Plaintiff Michael
Senisch's alleged injury at a Tractor Supply Company
store when Mr. Senisch tripped over a hand truck outside the
front entrance of the store. Defendants Tractor Supply
Company (“Tractor Supply”) and AON Corporation
move for summary judgment. This Opinion addresses both
Defendants' Motion for Summary Judgment and
Plaintiffs' Cross-Motion for Summary Judgment. For the
reasons that follow, the Court will grant Defendants'
motion and deny Plaintiffs' motion.
Court takes its facts from Defendants' Statement of
Undisputed Material Facts. On November 29, 2013 - “Black
Friday” following Thanksgiving Day - Plaintiffs arrived
at the Tractor Supply Company store in Vineland, New Jersey
for the first time to make a purchase. Plaintiffs drove to
the store, parked their vehicle in the lot, and walked
approximately thirty feet to the sidewalk.
approached the store, Plaintiffs saw a shopping cart with a
sales circular in it. Plaintiffs stopped to read the circular
with their backs to the store entrance. After reviewing the
circular, Mr. Senisch testified he turned and caught his left
foot underneath a hand truck. At this time he was about five
feet from the front entrance of the store. He testified he
flew over it crossways, lifting it approximately a foot off
the ground. Neither plaintiff knows how the hand truck got
there or how long it had been there, but are sure the hand
truck was not there when they approached the shopping cart to
read the circular.
complaint was filed in New Jersey Superior Court on November
23, 2015. It brings five counts against Defendants: (1)
negligence, (2) res ipsa loquitur, (3) strict liability, (4)
negligence per se, and (5) loss of consortium. Defendants
removed this case to federal court on January 5, 2016.
Defendants moved for summary judgment on May 15, 2017. On
June 16, 2017, Plaintiffs opposed the motion and filed a
cross-motion for summary judgment solely on their count for
Court first addresses its jurisdiction over this matter.
Defendants' Notice of Removal alleges as follows.
Plaintiffs are citizens of New Jersey. Defendant Tractor
Supply is incorporated in Delaware and has its principal
place of business in Tennessee, making it a citizen of both
Delaware and Tennessee. Defendant Gallagher Bassett Services
is incorporated in Delaware and has its principal place of
business in Illinois, making it a citizen of both Delaware
and Illinois. Defendant The Keith Corporation is both
incorporated and has its principal place of business in North
Carolina. Defendant AON Corporation is both incorporated and
has its principal place of business in a foreign country. As
there is complete diversity between the parties and the
Notice of Removal pleads the amount in controversy is in
excess of $75, 000, this Court has diversity jurisdiction
over this matter pursuant to 28 U.S.C. § 1332.
judgment is appropriate where the Court is satisfied that
“'the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits if any, ' . . . demonstrate the absence of a
genuine issue of material fact” and that the moving
party is entitled to a judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986) (citing Fed.R.Civ.P. 56).
issue is “genuine” if it is supported by evidence
such that a reasonable jury could return a verdict in the
nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id. “In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence ‘is to be
believed and all justifiable inferences are to be drawn in
his favor.'” Marino, 358 F.3d at 247
(citing Anderson, 477 U.S. at 255).
the moving party bears the burden of demonstrating the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking
summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, ' which it
believes demonstrate the absence of a genuine issue of
material fact.”); see Singletary v. Pa. Dep't
of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)
(“Although the initial burden is on the summary
judgment movant to show the absence of a genuine issue of
material fact, ‘the burden on the moving party may be
discharged by “showing” - that is, pointing out
to the district court - that there is an absence of evidence
to support the nonmoving party's case' when the
nonmoving party bears the ultimate burden of proof.”
(citing Celotex, 477 U.S. at 325)).
the moving party has met this burden, the nonmoving party
must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
Celotex, 477 U.S. at 324. A “party opposing
summary judgment ‘may not rest upon the mere
allegations or denials of the . . . pleading[s].'”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001). For “the non-moving party to prevail, [that
party] must ‘make a showing sufficient to establish the
existence of [every] element essential to that party's
case, and on which that party will bear the burden of proof
at trial.'” Cooper v. Sniezek, 418 F.
App'x 56, 58 (3d Cir. 2011) (citing Celotex, 477
U.S. at 322). Thus, to withstand a properly supported motion
for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict those
offered by the moving party. Anderson, 477 U.S. at
Court first addresses Plaintiffs' arguments regarding
Defendants' failure to provide discovery. By way of a
March 1, 2017 Scheduling Order, Magistrate Judge Karen M.
Williams set the discovery end date for April 30, 2017.
Dispositive motions were to be filed by May 12, 2017, which
was later extended to May 15, 2017. Accordingly, discovery
has been closed for almost eight months now.
times in their opposition brief, Plaintiffs argue their
“discovery requests were flatly denied due to
‘orders' to the attending attorneys from Tractor
Supply Company.” Plaintiffs' brief also states
“[t]hrough their first counsel who was [terminated] and
now through their current second counsel, an entailed
discovery was ‘objected' to by consultation and
authority of Tractor Supply Company's Corporate Claims
Manager, Mr. Jason Keen.” Plaintiffs are presumably
referring to Defendants' responses to Plaintiffs'
interrogatories, in which there were many objections and in
which several of Defendants' initial responses began with
“Upon advice of counsel,
have provided this Court with two versions of Tractor Supply
Company's responses to their interrogatories. In the June
6, 2016 responses, nearly all of the responses begin with
“Upon advice of counsel, objection.” The response
to the first interrogatory also states that “[t]hese
interrogatories were answered with the assistance of
counsel” and identifies “Jason Keen, Tractor
Supply Company Manager, Corporate Claims” as the
individual responding to the interrogatories.
April 27, 2017 responses do not state “Upon advice of
counsel, objection, ” but merely object to certain
interrogatories. However, the response to the first
interrogatory still identifies Jason Keen as the individual
responding to the interrogatories.
specific objection to Tractor Supply's responses is
unclear to the Court. While Tractor Supply objected to many
of the interrogatories, after objecting, Tractor Supply often
supplied an answer or gave an explanation regarding the
reason for the objection. The Court also notes Plaintiffs did
not file a motion to compel following receipt of the
interrogatory responses. Further, Plaintiffs have made no
attempt to oppose Defendants' motion with a Federal Rule
of Civil Procedure 56(f) affidavit setting forth reasons why
they cannot present facts necessary to oppose the summary
judgment motion. Plaintiffs further did not make such an
argument in their brief, only stating that responses
“would grant the plaintiffs proper information to fully
expound their case in a trial matter.”
event, the Court finds even if Plaintiffs had been supplied
more complete answers to each of their interrogatories, it
would not change this Court's determination that summary
judgment must be granted in favor of Defendants in this case.
Plaintiffs have failed to demonstrate a genuine issue of
material fact regardless of Defendants' responses to
interrogatories, and favorable responses to the
interrogatories would not change the Court's
also commented on Defendants' failure to “furnish
in its own motion . . . their personal store surveillance
video, displaying preceding and post-events of the
plaintiff's fall.” Plaintiffs state in their brief
that Defendants “conveniently and intentionally
ignored” and “never supplied their Vineland
store's video of the plaintiff's fall If a nonmovant
shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition, the court may:and injuries in this motion since
it would be highly detrimental to not only their motion, but
their case.” However, Defendants have no obligation to
provide all evidence in their possession. Rather, Defendants
are obligated to provide only the evidence necessary to
support their motion for summary judgment. Evidence that
helps Plaintiffs' case, that is irrelevant, or that would
be unnecessary or cumulative in light of other evidence to
support the motion does not need to be presented to this
Court begins my noting it will grant summary judgment in
favor of AON Corporation. Plaintiffs' complaint pleads
AON Corporation is involved in Tractor Supply's
“Risk, Reinsurance, Insurance, and Human
Resources.” However, the complaint, and Plaintiffs'
brief, fail to specify any grounds for liability by AON
Corporation. Accordingly, summary judgment will be granted in
favor of AON Corporation.
Court now addresses Tractor Supply's liability.
Plaintiffs' complaint argues Tractor Supply is liable
under theories of negligence, res ipsa loquitur, strict
liability, and negligence per se. The Court addresses each in
New Jersey, . . . it is widely accepted that a negligence
cause of action requires the establishment of four elements:
(1) a duty of care, (2) a breach of that duty, (3) actual and
proximate causation, and (4) damages." Jersey Cent.
Power & Light Co. v. Melcar Util. Co., 59 A.3d 561,
571 (N.J. 2013); accord Lee v. Won Il Park, No.
12-7437, 2016 WL 3041845, at *3 (D.N.J. May 26, 2016).
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., 818 A.2d 314, 316 (N.J. 2003) (citing
Hopkins v.Fox & Lazo Realtors, 625 A.2d 1110
(N.J. 1993); Restatement (Second) of Torts § 343
(1965)). “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. (citing O'Shea v. K. Mart
Corp., 701 A.2d 475 ( N.J.Super.Ct.App.Div. 1997)).
Ordinarily, an injured plaintiff asserting a breach of that
duty must prove, as an element of the cause of action, that
the defendant had actual or constructive knowledge of the
dangerous condition that caused the accident. Equitable
considerations have, however, motivated [the New Jersey
Supreme Court] to relieve the plaintiff of proof of that
element in circumstances in which, as a matter of
probability, a dangerous condition is likely to occur as the
result of the nature of the business, the property's
condition, or a demonstrable pattern of conduct or incidents.
In those circumstances, [the New Jersey Supreme Court] ha[s]
accorded the plaintiff an inference of negligence, imposing
on the defendant the obligation to come forward with
rebutting proof that it had taken prudent and reasonable
steps to avoid the potential hazard.
Id. (citation omitted) (citing Brown v. Racquet
Club of Bricktown, 471 A.2d 25, 29 (N.J.
1984)); accord Bozza v. Vornado, Inc., 200 A.2d 777,
779-80 (N.J. 1964).
the fair probability is that defendant did less than its duty
demanded, in one respect or another.” Wollerman v.
Grand Union Stores, Inc., 221 A.2d 513, 514 (N.J. 1966).
“At least the probability is sufficient to permit such
an inference in the absence of evidence that defendant did
all that a reasonably prudent man would do in the light of
the risk of injury his operation entailed.”
Id. at 514-15. Plaintiffs claim this is a
mode-of-operation case in which they need not prove actual or
constructive notice. Accordingly, this Court must determine
whether this is an appropriate case to apply the
all of its prior mode-of-operation cases, [the New Jersey
Supreme Court] has emphasized the self-service nature of the
defendant's business.” Prioleau v. Ky. Fried
Chicken, Inc., 122 A.3d 328, 337 (N.J. 2015).
[T]he mode-of-operation doctrine has never been expanded
beyond the self-service setting, in which customers
independently handle merchandise without the assistance of
employees or may come into direct contact with product
displays, shelving, packaging, and other aspects of the
facility that may present a risk. The distinction drawn by
these cases is sensible and practical. When a business
permits its customers to handle products and equipment,
unsupervised by employees, it increases the risk that a
dangerous condition will go undetected and that patrons will
be injured. Thus, the mode-of-operation rule is not a general
rule of premises liability, but a ...