United States District Court, W.D. Pennsylvania
Barry Fischer U.S. District Judge
lawsuit arises from injuries that Plaintiff Randie Mullen
sustained while shopping at Defendant's store located in
West Mifflin, Pennsylvania. Defendant filed a Motion for
Summary Judgment, supporting brief, and a Concise Statement
of Material Facts on December 23, 2016. (Docket Nos. 39, 40,
41). Plaintiff filed a brief in opposition and a response to
Defendant's Concise Statement of Material Facts on
January 23, 2017. (Docket Nos. 42, 43). The parties filed
their respective reply briefs on February 2, 2017, and the
Court held oral argument on February 10, 2017. (Docket Nos.
44, 45, 46). After careful consideration of the parties'
positions and having evaluated all of the evidence in light
of the appropriate standard governing motions for summary
judgment, and for the following reasons, Defendant's
Motion for Summary Judgment will be DENIED.
following facts are undisputed, except as indicated, and are
pertinent to the instant motion. At approximately 8:00 a.m.
on June 7, 2014, Plaintiff arrived at Defendant's store
for the specific purpose of purchasing a bucket of chlorine
tablets for her swimming pool. (Docket No. 41 at ¶¶
3, 7; Docket No. 43 at ¶¶ 3, 7). Defendant had a
display of buckets of chlorine tablets, located near the
entrance of the store, with the buckets stacked three high in
eight separate columns on top of a pallet. (Docket No. 43 at
¶ 1; Docket No. 44 at ¶ 1). Defendant's
corporate representative, Steven Zomp, estimated that the
display was fifty-two to fifty-four inches high, including
the pallet. (Docket No. 43 at ¶ 2; Docket No. 44 at
¶ 2). Because each bucket contains a “lip”
into which the bucket above is inserted, customers must lift
the bucket rather than pulling it straight out towards them.
(Docket No. 43 at ¶ 3; Docket No. 44 at ¶ 3).
Plaintiff took a bucket of chlorine tablets from the top left
of the display and placed it in her cart, two forty-pound
buckets fell from the display. (Docket No. 41 at ¶¶
3-4; Docket No. 43 at ¶¶ 3-4; Docket No. 43 at
¶ 9; Docket No. 44 at ¶ 9). One or two of the
buckets struck Plaintiff's right leg. (Docket No. 41 at
¶¶ 3; Docket No. 43 at ¶¶ 3; Docket No.
43 at ¶ 9; Docket No. 44 at ¶ 9). “‘As
she began to leave the area to continue shopping, two of the
heavy buckets, from a different location in the stack than
where [Plaintiff] had taken a bucket from, abruptly fell atop
[her, ] and chlorine tablets spilled out from
them.'” (Docket No. 41 at ¶ 5 (quoting Docket
No. 1-2 at ¶ 12); Docket No. 43 at ¶ 5). Plaintiff
alleges that she suffered a fractured right fibula and a skin
burn as a result of the incident. (Docket No. 41 at ¶ 6;
Docket No. 43 at ¶ 6).
deposition, Plaintiff testified that she had purchased
similar buckets of chlorine tablets from Defendant's
store in the past, that she was aware that the buckets
weighed forty pounds, and that she did not require assistance
in selecting a bucket from the display and placing it in her
shopping cart. (Docket No. 41 at ¶¶ 8-9; Docket No.
43 at ¶¶ 8-9). Specifically, Plaintiff stated:
Q. Prior to this date, June 7, 2014, had you ever asked for
assistance from anybody [who] worked at Sam's Club with
removal of a bucket and putting it in your cart?
Q. It was something you were always able to do yourself?
Q. On this day, June 7, 2014, did you ever ask anyone for
assistance in putting the - taking the bucket off the
Q. Did you ever ask anybody for assistance in taking the
bucket off the display and then putting it in your cart?
Q. Did you have any trouble when you lifted up the bucket and
took it off the display?
A. It was heavy.
Q. But did you have trouble with it? Did you feel like, oh,
gosh, this is too heavy, I need to put it back down? Did you
have any trouble lifting it? A. No. I lifted it up and put it
in my buggy.
(Docket No. 41 at ¶ 9 (quoting Docket No. 39-1 at 5-7);
Docket No. 43 at ¶ 9). Plaintiff opined that there were
approximately eight to ten rows of buckets and that they were
stacked in columns of three. (Docket No. 41 at ¶ 10;
Docket No. 43 at ¶ 10). Plaintiff described the display
Q. When you looked at the display when you came into [sic]
the store[, ] did you think to yourself that perhaps you
should seek assistance given the size of the display?
Q. As I understand it[, ] these buckets - the bucket bottom
nestles into [sic] the lid of the bucket underneath of it. Is