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Senisch v. Tractor Supply Co.

United States District Court, D. New Jersey

January 8, 2018

MICHAEL SENISCH, et al., Plaintiffs,
TRACTOR SUPPLY CO., et al., Defendants.

          MICHAEL CHARLES SENISCH Appearing pro se

          JULIE 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

          LEWIS K. JACKSON STYLIADES, JACKSON & DIMEO On behalf of TKC XC LLC % The Keith Corporation


          NOEL L. HILLMAN, U.S.D.J.

         This is 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.[1] 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.


         The Court takes its facts from Defendants' Statement of Undisputed Material Facts.[2] 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.

         As they 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.[3] 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.

         Plaintiffs' 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 strict liability.


         The 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.


         Summary 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).

         An 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).

         Initially, 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)).

         Once 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 257.


         The 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.

         Several 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, objection.”[4]

         Plaintiffs 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.

         The 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.

         Plaintiffs' 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.[5] 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.”

         In any 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 determination.

         Plaintiffs 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.[6]


         The 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.

         This 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.[7] The Court addresses each in turn.

         A. Negligence

         "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).

         “Business 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).

         “Overall 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 mode-of-operation doctrine.

         “[I]n 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 ...

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