United States District Court, W.D. Pennsylvania
DALE R. BENNETT and DEBRA L. BENNETT, individually and as parents and natural guardians of S.R.B., a minor, Plaintiffs,
WAL-MART STORES EAST, L.P. doing business as WALMART, Defendant.
C. Mitchell Magistrate Judge
Dale R. and Deborah L. Bennett bring this personal injury
action against Wal-Mart Stores East, L.P. (Defendant),
alleging claims of negligence, negligent infliction of
emotional distress (NIED), and loss of services/claim for
medical expenses stemming from an incident that occurred on
November 22, 2015 which resulted in injuries to
Plaintiffs' minor daughter, S.R.B.Presently before
the Court is a Motion for Partial Summary Judgment filed by
Defendant. (ECF No. 16). Plaintiffs have filed a brief in
opposition. (ECF No. 19). For the reasons that follow, this
Court will grant Defendant's motion in part and dismiss
Count III of Plaintiffs' complaint.
and Procedural History
are the natural parents and guardians of S.R.B., who was born
in 1999. (ECF No. 1-1, ¶ 1). Plaintiffs allege that, on
the date of the incident, Mrs. Bennett and S.R.B. were
shopping in the canned goods aisle at a Walmart Store in
Cranberry, Pennsylvania (Id. at ¶ 7). S.R.B.
was standing behind her mother's shopping cart.
(Id. at ¶ 8). Also in the aisle,
“somewhere behind” S.R.B. and her cart, was a
Walmart employee who was using a rocket cart to restock
shelves. (Id.) Plaintiffs claim that the Walmart
employee struck S.R.B. with the rocket cart, knocking her
off-balance and causing her to fall “violently.”
(Id. at ¶¶ 11-12). Plaintiffs contend that
S.R.B. sustained damage to her left knee which required her
to undergo two surgical procedures and extensive
Plaintiffs allege that Mrs. Bennett experienced “severe
emotional impact” and “significant mental pain
and suffering” as a result of her contemporaneous
observance of the incident. (Id. at ¶ 24).
Finally, Plaintiffs raise a claim seeking compensation for
the loss of the services and earnings of their minor child
and for monies spent to facilitate S.R.B.'s recovery.
(Id. at ¶¶ 26-27).
initiated this action by filing a complaint in the Court of
Common Pleas of Venango County, and Defendant removed the
matter to this Court on July 12, 2017 on the basis of
diversity jurisdiction. (ECF No. 1). On January 30, 2018,
Defendant filed a motion for partial summary judgment and
accompanying brief, arguing that the record does not support
a claim for either Count III, NIED, or Count IV, loss of
services/claim for medical expenses. (ECF Nos. 16, 17).
Plaintiffs have filed a response and a brief in opposition
(ECF Nos. 18, 19), and Defendants have filed a reply (ECF No.
Court has jurisdiction pursuant to 28 U.S.C. § 1332(a).
The parties have consented to proceed before the undersigned
pursuant to 28 U.S.C. § 636(c) (ECF No. 9).
amended effective December 1, 2010, the Federal Rules of
Civil Procedure provide that: “[t]he court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Summary judgment may be granted against a party who fails to
adduce facts sufficient to establish the existence of any
element essential to that party's case, and for which
that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial burden of identifying
evidence which demonstrates the absence of a genuine issue of
material fact. Once that burden has been met, the non moving
party must set forth “specific facts showing that there
is a genuine issue for trial” or the factual record
will be taken as presented by the moving party and judgment
will be entered as a matter of law. Matsushita Elec.
Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). An issue is genuine only if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
following this directive, a court must take the facts in the
light most favorable to the non-moving party, and must draw
all reasonable inferences and resolve all doubts in that
party's favor. Hugh v. Butler County Family
YMCA, 418 F.3d 265, 266 (3d Cir. 2005); Doe v.
County of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).
Count III - NIED on behalf of Mrs. Bennett
an actionable tort under Pennsylvania law. Sinn v.
Burd, 404 A.2d 672, 686 (Pa. 1979).
In order to recover, the [p]laintiff must prove one of four
elements: (1) that the [d]efendant had a contractual or
fiduciary duty toward him; (2) that [p]laintiff suffered a
physical impact; (3) that [p]laintiff was in a “zone of
danger” and at risk of an immediate physical injury; or
(4) that ...