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Lowery v. TJX Companies, Inc.

United States District Court, E.D. Louisiana

October 26, 2017


         SECTION "B"(1)


         The parties have each filed a motion for summary judgment. The first is “Plaintiff's Motion for Partial Summary Judgment.” Rec. Doc. 65. Defendants, TJX Companies, Inc. and Zurich American Insurance Company, timely filed an opposition. Rec. Doc. 69. The second is the “Motion for Summary Judgment Filed by the TJX Companies, Inc. and Zurich American Insurance Company.” Rec. Doc. 70. Plaintiff timely filed an opposition. Rec. Doc. 73. Defendants then sought, and were granted, leave to file a reply. Rec. Docs. 74, 74-2.

         For the reasons discussed below, IT IS ORDERED that Defendants' motion for summary judgment (Rec. Doc. 70) is GRANTED and Plaintiff's claims against Defendants are DISMISSED WITH PREJUDICE.

         IT IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment (Rec. Doc. 65) is DISMISSED AS MOOT.


         On September 7, 2015, Plaintiff Dorothy Lowery visited one of TJX's TJ Maxx stores to purchase a pair of shoes. Rec. Doc. 33 ¶ 4. Seating was available in the shoe department and throughout the store, but Plaintiff claims not to have been aware of the seating locations. Rec. Doc. 70-2 ¶¶ 3, 6, 8, 11, 12; Rec. Doc. 73-1 ¶¶ 3, 6, 8, 11, 12. Instead, when Plaintiff found a pair of shoes that she was interested in purchasing, she leaned against a table with one hand while using her other hand to remove one of her shoes and put on one of the new shoes. Rec. Doc. 70-2 ¶¶ 23, 25; Rec. Doc. 73-1 ¶¶ 23, 25. The table collapsed and Plaintiff fell to the ground. Rec. Doc. 70-2 ¶ 26; Rec. Doc. 73-1 ¶ 26. Plaintiff brought negligence and products liability claims against Defendants. Rec. Doc. 33 ¶¶ 7-11, 14. The products liability claims were dismissed in an earlier Order and Reasons, leaving only Plaintiff's claim that “TJX negligently failed to provide adequate seating to customers.” Rec. Doc. 63 at 8, 13.


         Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         When the movant bears the burden of proof, she must “demonstrate the absence of a genuine issue of material fact using “competent summary judgment evidence.” Celotex, 477 U.S. at 323. But “where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the movant meets her burden, the burden shifts to the non-movant, who must show by “competent summary judgment evidence” that there is a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16 F.3d at 618.

         Courts analyzing a negligence claim under Louisiana state law apply a duty-risk analysis, which asks a series of questions: “Was a duty owed? Was the duty breached? Did the breach of duty cause the plaintiff's harm?” Edminson v. Caesars Entm't Co., 177 F.Supp.3d 972, 976 (E.D. La. 2016); see also Bufkin v. Felipe's La., LLC, 2014-0288, p. 4-5 (La. 10/15/14); 171 So.3d 852, 855. As a result, a plaintiff can only prevail on a negligence claim if she establishes (1) that the defendant owed her a duty, (2) that the defendant breached that duty, (3) that the breach was a cause-in- fact of her injuries, (4) that the breach was a legal cause of her injuries, and (5) actual damages. Bufkin, 171 So.3d at 855.

         A storeowner who opens his business to the public is responsible for injuries caused by dangerous conditions that pose “an unreasonable risk of harm to others.” Broussard v. State ex rel. Office of State Bldgs., 2012-1238, p. 9 (La. 4/5/13); 113 So.3d 175, 183-84. Louisiana courts have adopted a “risk-utility balancing test to determine whether . . . a condition is unreasonably dangerous[, ]” such that a defendant would owe a duty to an injured plaintiff. Bufkin, 171 So.3d at 856. The test weighs four factors: “(1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing harm; and (4) the nature of the plaintiff's activities in terms of social utility or whether the activities were dangerous by nature.” Id.

         The second factor is especially consequential because “a defendant generally does not have a duty to protect against an open and obvious hazard.” Broussard, 113 So.3d at 184. As a result, a plaintiff's negligence claim will fail if the allegedly dangerous condition was “open and obvious.” See, e.g., Bufkin, 171 So.3d at 855-58. Given its potential to dispose of Plaintiff's claims, the second factor merits discussion before the rest of the risk-utility test.

         A condition is open and obvious when it is “open and obvious to all, i.e., everyone who may potentially encounter it.” Broussard, 113 So.3d at 184. “If the complained-of condition should be obvious to all, then it may not be unreasonably dangerous.” Id. at 188. In this vein, courts have held that the danger posed by an unpaved parking lot is open and obvious to drivers who park in the lot. See Allen v. Lockwood, 2014-1724 (La. 2/13/15); 156 So.3d 650, 653. The danger that an obstructed view poses to pedestrians crossing a street is open and obvious because pedestrians know the risks inherent to crossing a street, especially when they cannot see the cross traffic clearly. Bufkin, 171 So.3d at 856-58. Similarly, the absence of yellow lines separating the steps on an escalator is an open and obvious condition because “[i]t is no secret that the steps on an escalator move and eventually separate as they begin to go up or down” and all riders can readily determine whether the steps on any given escalator are demarcated by yellow stripes. Edminson, 177 F.Supp.3d at 979.

         The alleged lack of seating in the TJX shoe department is an open and obvious condition. Plaintiff alleges that she did not see the seating that TJX had provided in the shoe department or in other areas of the store. Rec. Doc. 73-1 ¶¶ 3, 8. Plaintiff's subjective unawareness of the location of the seating in the store is immaterial because, under Louisiana negligence law, the relevant question is whether any risks ...

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