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Kelly v. Beauty Systems Group, LLC

United States District Court, D. New Jersey

December 9, 2019

D'YANI C. KELLY, Plaintiff,



         This matter is before the Court on a Motion for Summary Judgment filed by Defendant, Beauty Systems Group, LLC, d/b/a Cosmo Prof (“Defendant” or “Cosmo Prof”) [Dkt. No. 47] and a Motion for Summary Judgment filed by Third Party Defendants, Jay Birnbaum-Cherry Hill, LLC and ILF-Cherry Hill, LLC (“Third Party Defendants”) [Dkt. No. 40]. The Court has considered the written submissions of the parties, as well as the arguments advanced at the hearing on November 20, 2019. For the reasons stated on the record that day, as well as those that follow, Defendant Cosmo Prof's motion will be granted, and Third Party Defendants' motion will be granted.

         I. Background

         This is a negligence action involving a floor mat, a trip, and a subsequent fall. On August 13, 2015, D'yani Kelly (“Plaintiff”), her mother (“Ms. Greene”) and her daughter (“Ms. Warren”) were shopping in Cosmo Prof store. Pl. Dep. 31:6-10. Defendant keeps a floor mat in front of the exit and entrance door. Id. The mat was black “with rubber edges and like a scruffy raised top to it. I suppose you could call it an all weather mat.” Id. at 41:3-10. This “non-slip” mat took up the full length of the doors, where customers could wipe off their feet. Roscoe Dep. at 41:1-2. According to Plaintiff, while “casually” walking to exit Defendants store “her left foot caught the edge of the [mat] at the exit door, causing her ankle to turn over. Plaintiff continued to walk out to her car in the parking lot when her ankle gave out and she fell to the ground, both hands extended. She landed on her hands and right knee, injuring her knee, hands, and shoulder.” Pl. Interrog. ¶ 2.; Pl. Dep. 43. There is no dispute in this case that Plaintiff did not fall while in the Cosmo Prof store. She alleges that she tripped, caught herself, and then fell in the parking lot making her way to her car.

         A. Plaintiff's Trip

         On the day of Plaintiff's accident, Plaintiff was wearing a sundress with wedge sandals. Pl. Dep. 38:1-5. Two employees were working at the Cosmo Prof store, Linda Pennestri (“Ms. Pennestri”) and Billie Roscoe (“Roscoe”). Neither employee witnessed Plaintiff trip on the floor mat. Ms. Warren, Plaintiff's daughter, was standing next to Plaintiff when she tripped; she was the only person to witness the accident. Warren Dep. 36:7-12. She testified that Plaintiff “was walking, and then the rug like caught the front end of her foot.” Warren Dep. 36:19-22. She recalled that the black mat had one corner “a little flipped up, but [she] didn't realize it until after [Plaintiff] tripped.” Id. at 31:20-24.

         Following Plaintiff trip, Plaintiff also noticed that the floor mat was not laying totally flat. Pl. Dep. 41:13-14. Ms. Greene testified that when she looked at the mat “it was just ruffled. . . . it was just a worn rug. . . . It wasn't flat.” Greene Dep. 33:6-13. Plaintiff, her mother, and her daughter had not observed the conditions of the mat prior to when Plaintiff tripped. Likewise, Cosmo Prof employees only inspected the mat after Plaintiff tripped. Ms. Pennestri noticed at the “very corner of the mat there was a little pull.” She testified that she thought “the nylon just caught the end of her heel. But it wasn't a big hole or anything that would have caused a fall, which she didn't fall in the store.” Pennestri Dep at 29. According to Ms. Pennestri, the “pull” was “not bad where you need to tape it down or replace it. . . . it's like little bumps on the carpet to tread. To get the dirt off stuff.” Id. at 34:17-35:2. According to Ms. Roscoe, the mat had been ripped up “just a tiny bit but no one had noticed it before then . . . At least [she] hadn't until [Plaintiff's mother] brought it to [her] attention;” it was “just maybe a half an inch.” Roscoe Dep. 43:14-23; 44:1-6.

         At the time of Plaintiff's accident, Ms. Pennestri had been working at Cosmo prof for about 8 years, since 2007. During her employment, Ms. Pennestri never saw the mat in question become “bunched up . . . or curled over or wrinkled.” Pennestri Dep. 36:10-15. At the time of her deposition, Cosmo Prof was using the same floor mat at the entrance that was used on August 13, 2015. Id. at 37:13-24. It was not altered or removed. Id. Prior to Plaintiff's incident, no one had ever tripped on the floor mat, or complained about the floor mat while Ms. Pennestri was employed with Defendant. Id. at 27:1-2; 41-42.

         Ms. Roscoe was employed with Cosmo Prof for a total of almost two years, from June 2015 through May 2017. Roscoe Dep. 30:2-5. During the months she was employed prior to Plaintiff's trip in August 2015, Ms. Roscoe never saw or heard of anyone else tripping on the floor mat. Id. at 41:2-16; 43:1-5. She also testified that no one complained about the mat on the day Plaintiff allegedly tripped in the store. Id. at 41:20-42:1. Plaintiff herself had been to Cosmo Prof many times, but never witnessed anyone else catch their foot on the exit mat. Pl. Dep. 33:19-25. This was the first time her foot caught the mat. Id. at 34:1-2.

         Cosmo Prof does not maintain procedures to inspect the floor mat, however, the employees vacuum the mat “every night.” Pennestri Dep. at 35. Ms. Roscoe explained the maintenance procedures for closing the store as follows: “we would take a push mop and push the dust to a central location, which was usually the middle of the mat, so whoever did that, which was usually me because I hate vacuuming, would dust that off and then the other person would take the vacuum and vacuum the mats inside and out.” When she would vacuum, she would only roll over where the dirt was, but she saw that when other employees vacuumed, they would roll over the whole mat, “including edges.” Roscoe Dep. 63:15-21; 64:17-23.

         B. Plaintiff's Fall

         After Plaintiff tripped on the floor mat inside the Cosmo Prof store, she continued to exit the store and walk to her car, which was located in the store's shopping center parking lot, in the first lane of parking spots. Plaintiff testified that her ankle “went out” from under her “when [she] went to take that last step with the left foot” and she fell forward to the ground. Pl. Dep. 48:1-10. At her deposition, Plaintiff recounted the following details:

Q. Could you describe for me the exact location of your fall in that parking lot an in terms of how far from your car, any other landmarks or anything like that that you could reference where your fall occurred?
A. Yes. I walked through the parking lot. There was a big long, oblong pothole. My mom and my daughter went across the pothole. I was on the opposite side of it. When I got beyond the ...

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