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Mary Elizabeth Jordan Flickinger et al v. Toys R Us

May 31, 2011


The opinion of the court was delivered by: Judge Caputo


Before the Court are several motions in limine filed by both parties. (Docs. 105, 91, 93, 96, 143, 158, 159, 100, and 87.) While a number of motions in limine were ruled on during oral argument, the Court believed these motions merited a separate memorandum opinion.


An extensive factual background to this suit is unnecessary here. Suffice to say, this personal injury case was filed against Toys "R" Us, Inc. and related corporations (collectively, Toys "R" Us). One of the plaintiffs, Mary Elizabeth Jordan Flickinger, alleges she was severely injured at Toys "R" Us' flagship store in Times Square when a plastic bin from a bulk candy dispenser detached from a display carousel, striking and injuring her. Mrs. Flickinger brought a negligence claim, her spouse brought a loss of consortium claim, and her children brought negligent infliction of emotional distress claims against Toys "R" Us.

In advance of trial, the parties have filed a number of motions in limine. Quite a few of them were decided on during oral argument. The remaining motions in limine (Docs. 105, 91, 93, 96, 143, 158, 159, 100, and 87) are discussed below.


I. Motion in Limine to Apply Pennsylvania Law to Liability and Damages (Doc. 105) Plaintiffs' motion in limine to apply Pennsylvania law to liability and damages will be denied. In assessing liability and damages at trial, the jury will apply New York law.

In choosing which law applies, a federal court sitting in diversity must apply the choice-of-law rules of the forum state. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941); Shuder v. McDonald's Corp., 859 F.2d 266, 269 (3d Cir.1988). Under Pennsylvania law, the court begins with an "interest analysis" of the policies of all interested states and then-based on the result of that analysis-characterizes the case as a true conflict, false conflict, or unprovided-for case. LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir.1996); Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 & n. 15 (3d Cir.1991).

A true conflict exists "when the governmental interests of [multiple] jurisdictions would be impaired if their law were not applied." Lacey, 932 F.2d at 187 n. 15. If a case presents a true conflict, Pennsylvania choice-of-law rules "call for the application of the law of the state having the most significant contacts or relationships with the particular issue." In re Estate of Agostini, 311 Pa. Super. 233 (1983). As explained in the Second Restatement of Conflict of Laws, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6 (1971). In making this determination, the court looks: to see what contacts each state has with the accident, the contacts being relevant only if they relate to the "policies and interest underlying the particular issue before the court." When doing this it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state's contacts must be measured on a qualitative rather than quantitative scale. Cipolla v. Shaposka, 439 Pa. 563, 566 (1970) (citations omitted).

"A false conflict exists if only one jurisdiction's governmental interests would be impaired by the application of the other jurisdiction's law." Lacey, 932 F.2d at 187. If there is a false conflict, the court must apply the law of the only interested jurisdiction. See, e.g., Kuchinic v. McCrory, 422 Pa. 620, 222 (1966). Under Pennsylvania choice of law analysis, a false conflict exists "where the accident is fortuitous and the state where the accident occurred has no interest in the regulatory standard at issue." Reyno v. Piper Aircraft Co., 630 F.2d 149, 170 (3d Cir.1980). Where the site of an accident is not fortuitous, "the place of injury assumes much greater importance, and in some instances may be determinative." Shields v. Consolidated Rail Corp., 810 F.2d 397, 401 (3d Cir.1987).

Finally, an unprovided-for case arises when no jurisdiction's interests would be impaired if its laws were not applied. Lex loci delicti (the law of the place of the wrong) continues to govern unprovided-for cases. See, e.g., Miller v. Gay, 323 Pa. Super. 466, 470 (1983).

In undertaking the analysis, the court first must look to see whether a false conflict exists. Then, if there is no false conflict, the court determines which state has the greater interest in the application of its law. See Cipolla, 439 Pa. at 565; Lacey, 932 F.2d at 187.

In LeJeune, a case involving a factual scenario similar to the present suit, the Third Circuit had to determine whether Pennsylvania or Delaware law applied in a personal injury case. The Plaintiff, a Pennsylvania resident, was injured while working in a Delaware steel mill. The injury was caused by an accident involving a piece of machinery at the mill. While Pennsylvania law recognized strict products liability claims, Delaware law did not. The court initially determined that there was no false conflict since Pennsylvania had an interest in protecting its citizens from defective products and Delaware had an interest in prescribing the rules concerning torts that occur within its borders. LeJeune, 85 F.3d at 1072. Further, the court found that the occurrence of the accident in Delaware was not fortuitous, since the accident occurred there because that was where the mill was located. Having determined that a "true conflict" existed, the court next examined which state had the greater interest in having its law applied, which essentially meant looking at what relevant contacts each state had with the accident. The court found that, while Pennsylvania's only contact with the accident did not involve substantive matters in the case but solely that the plaintiff was a Pennsylvania resident, the Delaware contacts were more substantial. Id. Delaware was the non-fortuitous site of the accident, and Delaware's contacts related to substantive issues in the case as to how and why certain conduct occurred. As a result, the court found that Delaware law should apply. Id.

Here, using the same logic, New York law should apply. It was not fortuitous that the accident occurred in New York and the policies underlying the pertinent laws of each state are in conflict.

Looking at these policies, there is a true conflict here for three reasons. First, while Pennsylvania law does not have a "zone of danger" requirement in order to recover damages on a negligent infliction of emotional distress claim, see, e.g., Sinn v. Burd, 486 Pa. 146 (1979), New York does, see, e.g., Savva v. Longo, 8 A.D. 3d 551 (N.Y. App. Div. 2004). Second, Pennsylvania law still adheres to the traditional hierarchy of premises liability, including the duty of landowners to business invitees to inspect the premises for hazards outlined at Restatement (Second) of Torts § 343 (1965), while New York law has dissolved the traditional common law premises liability distinctions and only makes landowners responsible for hazardous conditions they knew about or had constructive notice of, see, e.g. Walsh v. Super Value, Inc., 76 A.D. 3d 371 (N.Y. App. Div. 2010). Third, New York law requires the reduction of lost future earnings to present value, see, e.g., Hudson and Bronx Surface Transit Operating Auth., 568 N.Y.S. 2d 503 (Sup. Ct., N.Y. County, 1990), whereas Pennsylvania does not, see, e.g., Kaczkowski v. Bolubasz, 421 A.2d 1027 (Pa. 1980). These laws make New York law less plaintiff-friendly and more defendant-friendly than Pennsylvania law, and therefore there is a conflict between Pennsylvania wanting to protect its citizens and provide for ample damages in negligence suits, and New York wanting to limit liability for individuals and companies transacting business within its borders.

Employing the "true conflict" analysis and looking at which state has the greater interest in having its law applied, the Court finds New York should apply. Pennsylvania's only contact with the accident is that the Plaintiffs are Pennsylvania residents. As in LeJeune, that, by itself, is insufficient. Most significantly, the accident and the alleged negligent conduct occurred while the Plaintiffs were visiting Defendants' New York store, and the accident's occurrence in New York was not fortuitous. Furthermore, New York's contacts with the accident relate to the substantive issues of the case as to why certain conduct did or did not occur. Thus, New York law should apply.

Plaintiffs argue that the accident's occurrence in New York was "fortuitous" and therefore the conflict between Pennsylvania and New York law is either "false" or, if "true," the fortuitousness of the accident means that New York's relationship with the case is not as significant as Pennsylvania's and therefore Pennsylvania law should apply.

However, under the relevant case law, "fortuitousness" is interpreted as meaning completely unintentional or accidental, the result of sheer happenstance. Griffith v. United Air Lines, Inc., 416 Pa. 1 (1964) involved an airline crash in Colorado in which a Pennsylvania resident traveling from Philadelphia to Phoenix, Arizona, was killed. The choice between Colorado and Pennsylvania law was important because there was a severe limitation on damages under Colorado, but not Pennsylvania, law. The court held that Colorado had relatively little interest in the measure of damages because the defendant did not act in reliance on Colorado law, particularly inasmuch as the site of the accident was purely fortuitous. 416 Pa. at 22. On the other hand, Pennsylvania's interest was great, as the decedent's relationship with the airline was entered into in Pennsylvania where he purchased his ticket, the administration of his estate was in Pennsylvania, and Pennsylvania was concerned with the welfare of his surviving dependents to the end that they obtain full recovery. Id. at 24.

In contrast, in Shuder v. McDonald's Corp., 859 F.2d 266 (3d Cir. 1988), a Pennsylvania plaintiff brought negligence action against restaurant franchisor for injuries sustained in parking lot fall at Virginia franchisee's restaurant. Virginia law made contributory negligence a bar to recovery, while Pennsylvania followed comparative negligence doctrine. After determining that a true conflict existed, the Third Circuit next looked at which state had more significant contacts and determined that it was Virginia. Factors in reaching this conclusion included that the accident occurred in Virginia, that plaintiffs voluntarily went to that state, and that the place of the accident was not fortuitous as it involved a condition on the property. Shuder, 859 F.2dat 272.

In this case, Plaintiffs were in Times Square on a sight-seeing trip to NY. This was an intentional act on the part of the Plaintiffs. Unlike in Griffith, it is not as though Plaintiffs were traveling from Pennsylvania to Massachusetts, and happened to have an accident in New York. Rather, like in Shuder, Plaintiffs purposefully went to New York for vacation, and the accident involved a condition in the store, i.e., the candy display and dispenser. Therefore, Plaintiffs' accident does not meet the standard of ...

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