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Dorfmeister v. Nordstrom, Inc.

United States District Court, E.D. Pennsylvania

November 21, 2019

JENNIFER DORFMEISTER
v.
NORDSTROM, INC.

          MEMORANDUM OPINION

          Savage, J.

         This 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.

         There 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.

         Factual Background

         Dorfmeister was a frequent shopper at Nordstrom's store at King of Prussia Mall.[1]She had had clothes fitted or altered at Nordstrom and other stores many times in the past.[2] During these past fittings, she had stepped on and off fitting platforms similar to the one used on the date of her accident.[3]

         On January 25, 2017, while shopping at Nordstrom, Dorfmeister tried on an outfit.[4]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.[5] The pants “were touching the floor, borderline past the shoe length” and needed hemming.[6]Dorfmeister stepped off the platform and left Nordstrom to visit other stores.[7]

         Dorfmeister returned later that evening to purchase the outfit and have the pants altered.[8] She went into the fitting room with a Nordstrom sales associate, Shahrezad Shayegan, and a Nordstrom seamstress, Tahereh Ghaffari.[9] Dorfmeister put on the outfit with the unhemmed pants and a different pair of heels, walked to the fitting platform, and stepped onto it.[10] While she was standing on the platform, Ghaffari pinned her right pant leg and asked her if the length was appropriate.[11] Dorfmeister responded that she could not see whether the length was correct because she was too close to the mirror.[12] Ghaffari stated, “you need to step back then.”[13]

         With 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.[14] She did not ask for help stepping down, though she had done so on previous occasions.[15] Neither Shayegan nor Ghaffari assisted her or warned her to be careful.[16] As she stepped down, her left heel became tangled in the fabric of the unpinned pant leg.[17] She fell, fracturing her left ankle.[18]

         Standard of Review

         Summary 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).

         Disagreements 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).

         The 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).

         A 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 summary-judgment motion”).

         Discussion

         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)).

         Where 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 ...


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