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Mullen v. Sam's East, Inc.

United States District Court, W.D. Pennsylvania

May 22, 2017

RANDIE MULLEN, Plaintiff,
v.
SAM'S EAST, INC., Defendant.

          MEMORANDUM OPINION

          Nora Barry Fischer U.S. District Judge

         I. Introduction

         This 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.

         II. Background

         The 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).

         After 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).

         At her 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?
A. No.
Q. It was something you were always able to do yourself?
A. Yes.
Q. On this day, June 7, 2014, did you ever ask anyone for assistance in putting the - taking the bucket off the display?
A. No.
Q. Did you ever ask anybody for assistance in taking the bucket off the display and then putting it in your cart?
A. No.
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 as follows:

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?
A. No.
Q. As I understand it[, ] these buckets - the bucket bottom nestles into [sic] the lid of the bucket underneath of it. Is ...

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