United States District Court, D. New Jersey
D'YANI C. KELLY, Plaintiff,
BEAUTY SYSTEMS GROUP, LLC ET AL, Defendants.
JOSEPH H. RODRIGUEZ UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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
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.
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;
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
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