Werst v. Wal-Mart Stores, Inc. 09-CV-392-SM 10/4/11 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kathleen Werst, Plaintiff

v. Case No. 09-cv-392-SM Opinion No.

Wal-Mart Stores, Inc., Defendant

O R D E R

On December 1, 2006, Kathleen Werst was severely injured

while shopping at a Wal-Mart store in Hudson, New Hampshire. She

brings this common law negligence claim, saying Wal-Mart breached

its duty to warn her of and/or to guard against the dangerous

condition that caused her injury. Wal-Mart moves for summary

judgment asserting that, on the record presented, Ms. Werst

cannot carry her burden of proof as to each of the essential

elements of her claim. That motion is denied.

Standard of Review

When ruling on a motion for summary judgment, the court must

"view the entire record in the light most hospitable to the party

opposing summary judgment, indulging all reasonable inferences in

that party's favor." Griqqs-Rvan v. Smith,

(1st Cir. 1990). Summary judgment is appropriate when the record

reveals "no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.

R. Civ. P. 56(c). In this context, "a fact is 'material' if it

potentially affects the outcome of the suit and a dispute over it

is 'genuine' if the parties' positions on the issue are supported

by conflicting evidence." Int'l Ass'n of Machinists & Aerospace

Workers v. Winship Green Nursing Ctr.,

(1st

Cir. 1996) (citations omitted).

Background

Viewed in the light most favorable to plaintiff, Ms. Werst,

the pertinent facts are as follows. On December 1, 2006, Werst

and two friends went to the Wal-Mart store in Hudson, New

Hampshire, to purchase holiday gifts for needy children and

families in her community. At some point, Werst saw an item she

wished to purchase for a young girl on her shopping list.

Unfortunately, the lower shelves of the display were empty.

Werst Deposition (document no. 12-2) at 38. But, when she looked

up, she saw what she described as "the overstock," on the top

shelf of the display unit.

The item was too high for her to reach, so she placed her

right foot onto the lower shelf of the display unit and, with her

right hand on the unit, she pulled herself up so she was standing

on the first shelf, approximately 18 inches off the ground.

2 40-42. Then, with her left hand, she reached for the item. But,

because the item was set back on the shelf, she couldn't grasp

it. Xd. at 42. She described what happened next as follows:

So then Carla [one of Ms. Werst's friends with whom she was shopping] told me to get down, and I knew at that point that I wasn't going to be able to reach it and I got down, and as I came down, my rings got hung up [on the top of the shelving unit's vertical support post], and it was one very fluid motion. It wasn't, you know, like a jerk. It wasn't - it was just - I knew it hooked, and as it hooked, it pulled, and it came through, and I looked, and I was bleeding.

Id. at 43. See also Wal-Mart Stores Customer Incident Photo

Sheet (document no. 17) (a photograph of the shelving unit

itself, as well as a diagram drawn by plaintiff, showing where

her finger/rings caught on the vertical support post).

The traumatic injury to Werst's finger is known as a

"degloving injury." When she stepped down from the bottom shelf

and, at the same time, caught her rings on the top of the

shelving unit's vertical support, the force of thedownward

motion against the semi-fixed rings stripped the skin and muscle

off her left ring finger, down to the bone. In the process, her

finger was fractured in several places. She was taken tothe

hospital and, over the course of several months, endured a number

of surgical procedures aimed at saving and reconstructing her

finger. Those efforts failed and, in May of 2007, her left ring

3 finger was amputated. .Id. at 59. She then underwent additional

surgery to reconstruct her hand, which involved amputating her

pinky finger and re-attaching it in place of her missing ring

finger. .Id. at 12-14. In total, she underwent six surgical

procedures over the course of approximately 36 months. .Id. at

58. As a result of her injury, she retains movement and

sensation in only her thumb and index finger on her left hand;

the remaining two fingers on her left hand "don't work." ,Id. at

14 .

Discussion

In the sole count of her complaint, Ms. Werst asserts that

Wal-Mart breached its duty "to exercise reasonable care in the

maintenance and operation of the store; to refrain from

[maintaining] unreasonably hazardous conditions for shoppers upon

the premises; [and] to abate any hazardous conditions" of which

it knew or should have known. Complaint (document no. 1) at

para. 12. More specifically, she asserts:

Defendant should have realized the danger that a customer might be injured by reaching for merchandise displayed for sale on shelving units with sharp steel edges. The Defendant should have taken measures to guard against injuries occurring, such as not displaying items on the top shelf which invites customers to reach above the sharp edge of the shelving, or by simply placing caps on the tops of shelving units to prevent the edges from being exposed. An additional measure the Defendant could have taken to guard against such an injury . . . would be to warn

4 patrons of the danger of reaching for merchandise on the top shelf due to the sharp edging of the display shelves.

Plaintiff's memorandum (document no. 15) at 7 (emphasis

supplied).1 Plaintiff also testified in her deposition that the

vertical posts had "sharp edges."

New Hampshire common law is unremarkable in providing that

"[t]he elements of negligence are a breach of a duty of care by

the defendant, which proximately causes the plaintiff's injury."

Weldv v. Kingston,

(1986). See also Goodwin v.

James,

(1991) ("In order to recover for

negligence, a plaintiff must show that 'there exists a duty,

whose breach by the defendant causes the injury for which the

plaintiff seeks to recover.'") (citation omitted). The existence

1 Parenthetically, the court notes that there is evidence in the record suggesting that, at least on some of the shelving units in the store, Wal-Mart posted the following warning:

ATTENTION Associate / Customer Do Not Climb On or In the Steel Bins / Racks

Customer Incident Photo Sheet (document no. 17). While plaintiff testified that the presence of such a warning "probably" would not have dissuaded her from climbing on the shelving unit in an effort to reach the item she sought, Werst Deposition at 39, she also testified that she did not see such a warning on the shelving unit at issue in this case, .id. at 38. Accordingly, for purposes of ruling on Wal-Mart's pending motion, the court has assumed that there was no such warning.

5 and scope of the duty owed by a defendant are questions of law.

to be resolved by the court. See, e.g., Hunqerford v. Jones,

(1998). And, as the New Hampshire Supreme Court

has noted, concepts of "duty" and "foreseeability" are very much

intertwined.

In order to recover for negligence, a plaintiff must show that there exists a duty, whose breach by the defendant causes the injury for which the plaintiff seeks to recover. Generally, persons will not be found negligent if they could not reasonably foresee that their conduct would result in an injury to another or if their conduct was reasonable in light of the anticipated risks. Thus, duty and foreseeability are inextricably bound together. As noted recently in Goodwin, [

], we derive our concepts of duty and foreseeability from Chief Justice Cardozo's majority opinion in Palsqraf v. Long Island Railroad C o .,

,

(1928). "The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." Palsaraf,

,

. Thus, persons owe a duty of careonly to those who are foreseeably endangered by their conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous.

Manchenton v. Auto Leasing Corp.,

(1992)

(citations and internal punctuation omitted). And, of course,

"[o]ne who seeks redress at law does not make out a cause of

action by showing without more that there has been damage to his

person." Palsqraf,

,

.

6 So, as a general proposition, business owners have a duty to

protect and/or warn their customers, employees, and business

invitees against known and reasonably foreseeable dangers on the

premises.

[P]remises owners are governed by the test of reasonable care under all the circumstances in the maintenance and operation of their premises. A premises owner owes a duty to entrants to use ordinary care to keep the premises in a reasonably safe condition, to warn entrants of dangerous conditions[,] and to take reasonable precautions to protect them against foreseeable dangers arising out of the arrangements or use of the premises. Accordingly, under New Hampshire law, a premises owner is subject to liability for harm caused to entrants on the premises if the harm results either from: (1) the owner's failure to carry out his activities with reasonable care; or (2) the owner's failure to remedy or give warning of a dangerous condition of which he knows or in the exercise of reasonable care should know.

Rallis v. Demoulas Super Markets, Inc.,

(2009)

(citations omitted). Here, plaintiff invokes the second theory

of liability identified in Rallis. She asserts that Wal-Mart had

(and breached) a duty either to guard the top edges of the

shelving units' vertical supports, or warn her of the potential

dangers posed by those supports - dangers she says Wal-Mart knew

or should have known existed. See Plaintiff's memorandum at 7.

As to that particular theory of premises liability, the New

Hampshire Supreme Court has observed:

With respect to the second theory of liability - the owner's failure to remedy or warn of a dangerous

7 condition of which he knows or in the exercise of reasonable care should know - the landowner's duty of care depends upon whether he had actual or constructive notice of the dangerous condition.

Rallis,

(emphasis supplied). And, whether a

landowner had actual or constructive knowledge of a dangerous

condition is generally a question of fact for the jury. See

.

So, to avoid summary judgment, Werst must point to evidence

from which a jury could plausibly find that Wal-Mart knew, or

should have known, that the unguarded tops of the shelving

supports posed a risk of injury to customers. She has, however,

done little to carry that burden. First, she has pointed to no

evidence that Wal-Mart had actual knowledge of the alleged danger

(e.g., past injury reports from any Wal-Mart stores; warnings

from employees, suppliers, or other customers that the posts pose

a danger; industry or regulatory standards; the shelving

manufacturer's warnings or assembly instructions; etc.).

With regard to Wal-Mart's alleged constructive notice, Werst

simply points to the allegedly "sharp steel edges" of the tops of

the vertical supports and Wal-Mart's supposed enticement to reach

for overstock on the high shelves. She implicitly suggests that

the sharp edges are not only dangerous, but that Wal-Mart should have recognized that dangerous condition simply through

observation and then done something to prevent the condition from

causing injury, such as the one she suffered. See Plaintiff's

memorandum at 7.

One can certainly imagine cases in which the evidence is so

lacking that a court could conclude as a matter of law, that no

properly instructed jury could plausibly find that the landowner

should have recognized a particular allegedly dangerous condition

on its premises. See, e.g.. White v. Home Depot U.S.A., Inc., __

F. Supp. 2d __,

(S.D.W.Va. July 19. 2011). Given

the paucity of evidence presented by Wertz, this case is

tiptoeing along the dividing line between viable and meritless

claims. But, in the end, the court is persuaded that liability

here turns on unresolved factual issues - whether the described

condition was dangerous; whether Wal-Mart should have known of

it; and, if so, whether Wal-Mart adequately warned of it. Under

the circumstances presented, those issues are properly resolved

by a jury. See e.g., Elliot v. Sears, Roebuck & Co., 30 Conn.

A p p . 664, 676,

(Conn. A p p . 1993) ("Whether

the existence of a sharp protruding edge on which jewelry can be

snagged during an uncontrolled fall rendered the ladder

unreasonably dangerous is a question of fact to be determined by

the jury, and the jury can draw their own reasonable conclusions

9 as to the expectations of the ordinary consumer and the knowledge

common in the community at large.") .

Conclusion

For the foregoing reasons, the court concludes that the

existence of a genuinely disputed material facts - that is,

whether Wal-Mart had constructive knowledge of the alleged hazard

- precludes the entry of summary judgment in Wal-Mart's favor.

Accordingly, defendant's motion for summary judgment (document

no. 1.2) is denied, without prejudice to its right to seek

judgment as a matter of law at the close of plaintiff's case,

when the evidentiary context is clear.

SO ORDERED.

Steven J.kMcAuliffe Chief Judge

October 4, 2011

cc: Joseph P. Kittredge, Esq. Edmund J. Waters, Jr., Esq. Margaret A. Rubino, Esq. Blake M. Sutton, Esq.

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