Lowery v. TJX Cos.

• Decision Date: 05 September 2017
• Docket Number: CIVIL ACTION NUMBER: 16-14182 SECTION: "B"(1)
• Parties: DOROTHY LOWERY v. TJX COMPANIES, INC., ET AL
• Court: U.S. District Court — Eastern District of Louisiana

DOROTHY LOWERY v. TJX COMPANIES, INC., ET AL

CIVIL ACTION NUMBER: 16-14182 SECTION: "B"(1)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

September 5, 2017

ORDER AND REASONS

Before the Court are two motions for summary judgment.

First is "VH Group, L.L.C. and Covington Specialty Insurance Company's Motion for Summary Judgment." Rec. Doc. 45. On August 16, 2017, Plaintiff Dorothy Lowery filed a notice of non-opposition to this motion. Rec. Doc. 53.

Second is the "Motion for Summary Judgment Filed by the TJX Companies, Inc. and Zurich American Insurance Company." Rec. Doc. 47. Plaintiff timely filed an opposition memorandum. Rec. Doc. 52. Defendants then requested, and were granted, leave to file a reply memorandum. Rec. Doc. 57. For the reasons discussed below,

IT IS ORDERED that VH Group, L.L.C. and Covington Specialty Insurance Company's motion for summary judgment (Rec. Doc. 45) is GRANTED.

IT IS FURTHER ORDERED that TJX Companies, Inc. and Zurich American Insurance Company's motion for summary judgment (Rec. Doc. 47) is GRANTED IN PART.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises out of a fall suffered by Dorothy Lowery ("Plaintiff") on September 7, 2015. Rec. Doc. 33 at ¶ 4. Plaintiff was visiting a TJ Maxx store owned by Defendant TJX Companies, Inc. ("TJX") to try on shoes. Id. She leaned against a table for support and "the screw/nail that was holding the table leg onto the table bent, causing the table leg to fold under the table and the table (along with [Plaintiff]) to fall." Id.

In her complaint, Plaintiff alleged that the table's legs were not adequately fastened by the table's manufacturers, Defendants VH Group, LLC ("VH Group") and Vietnam Housewares Co., Ltd. ("Vietnam Housewares"). Rec. Doc. 33 at ¶ 5.¹ She is asserting claims under the Louisiana Products Liability Act ("LPLA") for failure to warn, design defect, and construction or composition defect, as well as under Louisiana Civil Code articles 2315 and 2317. Id. at ¶¶ 7, 11.

Plaintiff's second amended complaint named TJX; TJX's insurer, Zurich American Insurance Company ("Zurich"); VH Group; VH Group's insurer, Covington Specialty Insurance Company ("Covington"); Vietnam Housewares; and unidentified parties as Defendants. Rec. Doc. 33 at ¶ 2.

TJX filed a third-party complaint against VH Group and Covington, alleging that TJX purchased the table at issue from VH Group pursuant to a Purchase Order dated February 15, 2015. Rec. Doc. 14 at ¶ VI. TJX maintains that VH Group agreed to indemnify and hold TJX harmless for any claims brought by third parties arising from injuries allegedly caused by a defect in the table. Id. at ¶ VII. Accordingly, TJX argues that VH Group is obligated to pay the defense costs arising from this litigation. Id. at ¶ XI.

A. IS TJX LIABLE UNDER THE LOUISIANA CIVIL CODE?

Under Louisiana law, the plaintiff in a negligence action must prove "by a preponderance of the evidence the following five elements: 1) duty of care owed by the defendant to the plaintiff; 2) breach of that duty by the defendant; 3) cause-in-fact; 4) legal causation; and 5) damages to the plaintiff caused by that breach." Boudreaux v. Bollinger Shipyard, 15-1345, p. 21 (La. App. 4 Cir. 6/22/16); 197 So. 3d 761, 773-74 (citations omitted). More specifically, "[w]hen an individual is injured as a result of an unreasonably dangerous condition existing on a landowner's property, he can recover damages relying on either [Louisiana Civil Code article 2315], which is the basis of general negligence liability, or [article 2317], which provides for a strict liability theory of recovery." Amest v. City of Breaux Bridge, 01-1034, p. 1 (La. App. 3 Cir. 12/12/01); 801 So. 2d 582, 584 (quoting LeJeunev. Riviana Foods, 97-1091, p. 2 (La. App. 3 Cir. 2/18/98); 707 So. 2d 1038, 1039, writ denied, 98-0749 (La. 5/1/98); 718 So. 2d 418). Article 2315 provides that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." LA. CIV. CODE art. 2315. On the other hand, article 2317 provides that "[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by . . . the things which we have in our custody." LA. CIV. CODE art. 2317. In 1996, the Louisiana legislature added article 2317.1, which provides that "[t]he owner or custodian of a thing is answerable for damage occasioned by its . . . defect, only upon a showing that he knew, or in the exercise of reasonable care, should have known of the . . . defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care." LA. CIV. CODE art. 2317.1.

Thus, under either article 2315 or 2317, "the plaintiff first has the burden of proving: (1) the property which caused the damage was in the custody of the defendant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises; and, (3) the defect in the property was a cause-in-fact of the resulting injury." Amest, 801 So. 2d at 584 (quoting LeJeune, 707 So. 2d at 1040). As to the second element, "the defect mu[st] be of such a nature as toconstitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances." Jordan v. Hickman, 39,519, p. 4 (La. App. 2 Cir. 4/6/05); 899 So. 2d 830, 833, writ denied, 05-1066 (La. 6/17/05); 904 So. 2d 712 (quoting Durmon v. Billings, 38,514, p. 7 (La. App. 2 Cir. 5/12/04); 873 So. 2d 872, 877, writ denied, 04-1805 (La. 10/29/04); 885 So. 2d 588). A defect will not be "inferred simply because an accident occurred" and "where a risk of harm is obvious, universally known and easily avoidable, the risk is not unreasonable." Jordan, 899 So. 2d at 833-34 (citing Carroll v. Holt, 36,615, pp. 4-5 (La. App. 2 Cir. 12/11/02); 833 So. 2d 1194, 1197-98).

Ultimately, to determine if the defendant "failed to exercise reasonable care" or "acted unreasonably," the court may consider the "Learned Hand formula" promulgated by Judge Hand in United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947). Myers v. Dronet, 01-5, p. 14 (La. App. 3 Cir. 6/22/01); 801 So. 2d 1097, 1109. This formula "prescribes the amount of caution which a particular occurrence requires a person to take" and requires consideration of (1) the likelihood that the thing will cause injury; (2) the seriousness of any resulting injury; and (3) the burden imposed on the defendant to avoid the risk. Id. (citation omitted).

TJX and Zurich argue that Plaintiff cannot show that TJX (1) breached a duty to provide adequate seating; or (2) owed a duty to protect Plaintiff from any risk associated with using the table to support her weight. Rec. Doc. 47-1 at 4. Specifically, Defendants note that there were two red-topped benches at the end of the aisles in the shoe department, a bench at the entrance of the store, and two benches at the entrance to the dressing rooms. Rec. Docs. 47-4 at 30-31, 34, 65; 47-6 at 1, 3-6. They further argue that there is no evidence that the table was defective and that "the risk created by using the table to support her weight was . . . patently obvious and easily avoidable," thereby precluding liability under articles 2315 and 2317 and the LPLA. Rec. Doc. 47-1 at 7-9.

Plaintiff responds that the benches provided by TJX "are not readily apparent to shoppers." Rec. Doc. 52 at 2. Rather, the benches in the shoe department were "placed at the end of the shoe racks facing a nearby wall and their width matches the width of the shoe racks," such that they "are not visible from large percentages of the shoe department." Id. The TJ Maxx Operations Manager, Sara Martin, testified that "the benches were placed pursuant to a corporate policy called 'department flow.'" Id. Because Plaintiff has not had the opportunity to take the TJX corporate deposition and inquire into both "department flow" and how often customers try on shoes outside the shoe department, sherequests additional time to conduct discovery under Federal Rule of Civil Procedure 56(d). Id. at 2-3; see also Rec. Doc. 52-2 at ¶¶ 3-4. Citing to the Learned Hand test, Plaintiff argues that this additional discovery could help determine the likelihood of injury and whether or not the risk of harm outweighed any burden imposed on TJX. Rec. Doc. 52 at 4. Plaintiff also requests the opportunity to depose TJ Maxx personnel who may have information regarding how often customers try on shoes outside the shoe department and notes that she "has commissioned a photographer to take pictures of the shoe department . . . ." Id. Finally, she reminds the Court that the discovery deadline is not until September 25. Id. at 3; see also Rec. Doc. 29 at 1.

In their reply memorandum, TJX and Zurich argue that Plaintiff has failed to show that the table was defective or to allege that additional discovery will yield evidence that the table was defective. Rec. Doc. 54-2 at 5. Thus, they reason that Plaintiff is limiting her claim and seeking only to hold TJX liable for allegedly providing inadequate seating. Id. They respond that Plaintiff failed to explain how additional discovery would be material to whether or not TJX breached an alleged duty to provide additional or more visible seating, whether any resulting risk was avoidable, and/or whether any alleged breach caused her injuries. Id. at 6, 8.

Plaintiff has failed to clearly describe the basis for her claims against TJX. Based on her response memorandum, the Court surmises, like Defendants, that Plaintiff is no longer claiming that the table was defective. Even though she stated in her statement of contested and uncontested material facts that she disputes Defendants' statement that "Plaintiff has offered no evidence that the table was defective," (Rec. Docs. 47-2 at ¶ 20; 52-1 at ¶ 20), she presented no evidence of a defect in the...