United States District Court, E.D. Pennsylvania
negligence action arises out of injuries plaintiff Jennifer
Dorfmeister sustained when she tripped and fell off a fitting
platform while having pants altered at defendant
Nordstrom's store. Dorfmeister claims Nordstrom's
employees were negligent in failing to warn her of the
tripping hazard posed by her unpinned pant leg and failing to
assist her down from the platform. Nordstrom has moved for
summary judgment, contending it had no duty to warn of or
guard against an obvious danger.
are issues of fact as to whether the danger was known or
obvious to Dorfmeister, and whether Nordstrom should have
reasonably anticipated the danger. Therefore, we shall deny
the motion for summary judgment.
was a frequent shopper at Nordstrom's store at King of
Prussia Mall.She had had clothes fitted or altered at
Nordstrom and other stores many times in the
past. During these past fittings, she had
stepped on and off fitting platforms similar to the one used
on the date of her accident.
January 25, 2017, while shopping at Nordstrom, Dorfmeister
tried on an outfit.While wearing the outfit and a pair of
high-heel shoes, she stepped onto a seven-inch fitting
platform and had several photographs taken of her on the
platform. The pants “were touching the floor,
borderline past the shoe length” and needed
hemming.Dorfmeister stepped off the platform and
left Nordstrom to visit other stores.
returned later that evening to purchase the outfit and have
the pants altered. She went into the fitting room with a
Nordstrom sales associate, Shahrezad Shayegan, and a
Nordstrom seamstress, Tahereh Ghaffari. Dorfmeister put
on the outfit with the unhemmed pants and a different pair of
heels, walked to the fitting platform, and stepped onto
it. While she was standing on the platform,
Ghaffari pinned her right pant leg and asked her if the
length was appropriate. Dorfmeister responded that she could
not see whether the length was correct because she was too
close to the mirror. Ghaffari stated, “you need to step
the right pant leg pinned and the left pant leg unpinned,
Dorfmeister turned so that her back was facing the mirror and
stepped down off the platform. She did not ask for help
stepping down, though she had done so on previous
occasions. Neither Shayegan nor Ghaffari assisted
her or warned her to be careful. As she stepped down, her
left heel became tangled in the fabric of the unpinned pant
leg. She fell, fracturing her left
judgment is appropriate “if the movant shows 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). Judgment will be entered against a party who fails to
sufficiently establish any element essential to that
party's case and who bears the ultimate burden of proof
at trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). In examining the motion, we must draw all
reasonable inferences in the nonmovant's favor.
InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144,
159-60 (3d Cir. 2003).
over what inferences may be drawn from the facts, even
undisputed ones, preclude summary judgment. Ideal Dairy
Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d
Cir. 1996) (citation omitted). Credibility determinations,
the drawing of legitimate inferences from facts, and the
weighing of evidence are matters left to the jury.
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).
initial burden of demonstrating that there are no genuine
issues of material fact falls on the moving party.
Fed.R.Civ.P. 56(a). Once the moving party has met its burden,
the nonmoving party must counter with “specific facts
showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (citation omitted). The nonmovant
must show more than the “mere existence of a scintilla
of evidence” for elements on which it bears the burden
of production. Anderson, 477 U.S. at 252. Bare
assertions, conclusory allegations or suspicions are not
sufficient to defeat summary judgment. Fireman's Ins.
Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Thus,
“[w]here the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.'”
Matsushita, 475 U.S. at 587 (citation omitted).
nonmoving party may defeat summary judgment through the use
of depositions. See Fed. R. Civ. P. 56(c)(1)(A) (a
plaintiff may assert that a fact is genuinely disputed by
“citing to particular parts of materials on the record,
including depositions”). See also In re CitX
Corp., 448 F.3d 672, 680 (3d Cir. 2006) (citing 10A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Fed. Prac. & Proc. § 2722, at 373, 379 (3d ed.
1998)) (observing that depositions are “one of the best
forms of evidence for supporting or opposing a
business owner owes a duty to protect its invitees from
foreseeable harm. Carrender v. Fitterer, 469 A.2d
120, 123 (Pa. 1983). The duty is not absolute. The business
owner is not an insurer of the invitee's safety.
Rabutino v. Freedom State Realty Co., Inc.,
809 A.2d 933, 939 (Pa. Super. 2002). The business owner is
liable for harm caused by a dangerous condition only if it:
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves
an unreasonable risk of harm to such invitee, and (b) should
expect that they will not discover or realize the danger, or
will fail to protect themselves against it, and (c) fails to
exercise reasonable care to protect them against the danger.
Carrender, 469 A.2d at 123 (quoting Restatement
(Second) of Torts § 343 (1965)).
the danger is known or obvious to the invitee, the business
owner is not liable for physical harm caused by a dangerous
activity or condition. Id. See also Atkins v.
Urban Redevelopment Auth. of Pittsburgh,414 A.2d 100,
104 (Pa. 1980) (“[T]he law of Pennsylvania does not
impose liability if it is reasonable for the possessor to
believe that the dangerous condition would be obvious to and
discovered by his invitee”). For a danger to be
“known, ” the invitee must not only know the
danger exists, she must recognize that the condition or
activity is dangerous and she must appreciate “the
probability and gravity” of the threatened harm.
Restatement (Second) of Torts § 343A, cmt. b. A danger
is “obvious” when ...