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Bennett v. Wal-Mart Stores East, L.P.

United States District Court, W.D. Pennsylvania

March 26, 2018

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.


          Robert C. Mitchell Magistrate Judge

         Plaintiffs 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.[1]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.

         Factual and Procedural History

         Plaintiffs 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 rehabilitation. (Id.)

         Moreover, 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).

         Plaintiffs 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. 20).

         This 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).

         Standard of Review

         As 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).

         In 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).


         I. Count III - NIED on behalf of Mrs. Bennett

         NIED is 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 ...

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