Opinion
17-CV-277 (SIL)
2022-04-29
Cheryl MANZONE and Steven Manzone, Plaintiffs, v. WAL-MART STORES, INC., Defendant.
Todd D. Greenberg, Addabbo & Greenberg, Forest Hills, NY, for Plaintiffs. Aisha K. Brosnan, Jonathan F. Banks, Tanya Demaio, Thomas M. O'Connor, Patricia A. O'Connor, Brody, O'Connor & O'Connor, Esq., Northport, NY, for Defendant.
Todd D. Greenberg, Addabbo & Greenberg, Forest Hills, NY, for Plaintiffs.
Aisha K. Brosnan, Jonathan F. Banks, Tanya Demaio, Thomas M. O'Connor, Patricia A. O'Connor, Brody, O'Connor & O'Connor, Esq., Northport, NY, for Defendant.
DECISION AND ORDER
STEVEN I. LOCKE, United States Magistrate Judge:
The following constitutes the Court's findings of fact and conclusions of law after a bench trial in this diversity jurisdiction-personal injury case based on a slip and fall occurring in Milford, Pennsylvania.
I. FINDINGS OF FACT
The Court notes that with the exception of Plaintiff's trial testimony, which was live and in Court, the rest of the evidence was submitted on papers with the consent of both sides.
Plaintiff Cheryl Manzone ("Plaintiff" or "Manzone"), a resident of Forest Hills, New York, was a 65-year-old grandmother at the time of the accident at issue in this case. Steven Manzone ("Steven") is Plaintiff's husband who lives with her and brings a derivative claim for loss of society based on his wife's accident. Defendant Wal-Mart Stores, Inc. ("Defendant" or "Walmart") is the owner-operator of the Walmart located at 220 Route 6 and 209, Milford, Pennsylvania, where the accident occurred.
Prior to the accident, Plaintiff kept a studio, also in Queens, where she painted, sewed and did hair and waxing. Although she still maintains the studio, she stopped using it after her accident. Manzone had a medical history at that time that included cervical cancer, a hysterectomy, removal of her ovaries and tumors in her stomach, breast cancer, Lyme disease, and two or three incidents of Bell's palsy. According to her husband, prior to the accident, Plaintiff also suffered from lower back pain for which she had been receiving treatment including MRIs or CAT scans.
On September 23, 2016, Manzone was traveling from her home in Queens to her summer house in Pennsylvania with her husband. During the drive, they stopped at the Milford, PA Walmart to do some shopping, where her husband dropped her off at approximately 11:30 p.m. Steven stayed in the car with the dog.
At this time, the overnight shift was on duty, and the portion of the store where Plaintiff's accident occurred was being stripped and waxed by two employees—Overnight Associate Alfred Rosario ("Rosario") and another employee identified only as Ryan, who no longer works at Walmart. The stripping and waxing process is subject to a number of written internal company policies, which provide, consistent with "[g]ood safety practice" as explained by Plaintiff's expert, that proper "Wet Floor" signs or cones be posted on the floor, and that the area being cleaned be barricaded with ropes and signs before stripping takes place. Further, according to Rosario, the employee doing the cleaning should rope off an area larger than where that employee is working to leave room for equipment and materials. According to Overnight Maintenance Worker Jose DeJesus, the cones are placed in the middle of aisles in case the stripper spills past the rope during cleaning. The ropes are usually kept at chest height so that no one goes underneath it. There is no written policy as to where exactly the signs or cones should be placed relative to the stripping and waxing occurring.
The Court held in earlier proceedings that Plaintiff's expert, Angela D. DiDomenico, Ph.D., was qualified to opine on matters of biomechanics related to Plaintiff's slip and fall as well as standards of care and internal safety policies. See Manzone v. Wal-Mart Stores, Inc. , 17 CV 277 (SIL), 2020 WL 5411483, at *6-7 (E.D.N.Y. Sept. 9, 2020).
On the date of the accident, Plaintiff was looking for a toy car as a present for her grandchild and got directions to the product from one of the Walmart employees who sent her toward the back of the store, which was empty at the time. After seeing the car, Manzone passed the plumbing section and decided to look for extension poles for her shoe closet. With the assistance of another Walmart employee, she located them, after which she decided to shop for pillow protectors. Plaintiff then walked down a bedding aisle, did not see them, turned left at the corner of the aisle at the end cap to look further, and go down the next aisle, if necessary, when she slipped and fell on a wet transparent substance. At the time of the fall, which was captured on store video, there were no "Wet Floor" signs posted or cones demarking a wet area. Walmart's Overnight Assistant Manager on duty that night, Albert Madera ("Madera"), said he would have used cones consistent with the store's written policies, and it appears that a caution cone was placed in the area only after the fact. In any event, there was a yellow cord, which hit Plaintiff mid-leg near her knee. Consistent with Plaintiff's expert's opinion, the Court finds that the failure to place any warning signs (or cones) out during the cleaning caused a hazardous condition. Moreover, and contrary to Defendant's position, at no time did Plaintiff attempt to step past, over or around the rope.
The Court notes that the parties stipulated to the admission of a video of the fall into evidence. Although Plaintiff had some trouble determining at trial whether she was the woman depicted in the video, the Court concludes that it was her.
When Manzone fell, she hit her head and back on the floor and she hit her shoulder on a ledge at the end of the aisle. Her pants were wet from the stripper used on the floor where she slipped. A "Code White," which means that a customer has been injured, was called and Madera arrived to find Plaintiff laying on the floor and incoherent. Manzone testified that she was in a lot of pain, was having trouble speaking, and that store employees stayed with her until her husband could be located. Steven was then brought in from the parking lot where he had been waiting with their dog to find his wife on the ground shaking and protesting about having to go to the hospital.
An ambulance was called, and Plaintiff was taken to the Bon Secours Hospital where she examined by emergency room physician, Keith Cartmill, at 1:06 a.m., and where she complained of pain in her head, elbow and left hip. She had slurred speech and a history of Bell's palsy was noted. She was then examined for a stroke, and treated with thrombolytics to break down a possible blood clot. No determination was made as to whether Manzone actually suffered a stroke, however. A CAT scan showed a "normal head/brain," a chest x-ray showed no acute findings and elbow x-ray read as "normal."
At 4:42 a.m. Manzone was transferred by ambulance to North Shore Hospital on Long Island, where a number of her doctors are based, and where she stayed for two more days until she was discharged to go home. At departure, she needed a cane and a walker to ambulate, though she could not make it up a flight of steps, leaving her to stay in her living room.
On September 29, 2016, Manzone visited neurologist James Ligouri, who administered a Lidocaine injunction for lower back pain, although he never made a determination as to the cause of the pain.
On October 24, 2016, Plaintiff visited Baruch Toledano, M.D. ("Dr. Toledano") for moderate to severe lower back pain that radiated down her left leg. During this visit, Manzone was given a Toradol injection for her pain and a Medrol pack (Prednisone ) to be taken orally. She returned for treatment on November 3, 2016 and Dr. Toledano gave her more pain medication and diagnosed her with lumbar spinal stenosis and CVA with right hand hemiparesis. The condition was preexisting to the accident and degenerative but aggravated by the fall. Treatment continued on November 21, 2016 with another Toradol injection. Plaintiff at that time was complaining about her back and left knee, where the MRI had shown arthritis, that Dr. Toledano also concluded was aggravated by the fall. The next visit was on February 16, 2017, after a vacation to Cabo San Lucas for a month, when Manzone complained again about pain and another Toradol injection was administered. A prescription for a Lidoderm patch was also given for pain. Two more visits followed in March and April 2017 with similar treatment. At this time, Dr. Toledano recommended that Plaintiff see a pain specialist because the Toradol did not seem to be helping, and he wrote a prescription for Celebrex. This was followed by another appointment on July 20, 2017 and another Toradol injection. There were more visits on August 31, 2017, September 28, 2017, October 30, 2017, November 9, 2017, December 14, 2017 and February 8, 2018 for recurring symptoms. At the February 8 visit, another Toradol shot was administered and another Celebrex prescription was issued. There were subsequent appointments on March 12, 2018 and April 23, 2018 for the same symptoms and treatment. The next visit was several months later on October 4, 2018 followed by appointments on November 15, 2018 and December 13, 2018 with similar treatment, and Plaintiff traveling again to the Dominican Republic and Cabo San Lucas for vacation. There was another appointment on March 7, 2019 where she indicated right knee pain for the first time and received another Toradol shot. Dr. Toledano's conclusion was that Manzone had preexisting medical conditions aggravated by her fall at the Walmart.
Plaintiff's pain has also had a negative impact on her relationships with her husband and granddaughter, who she could no longer babysit and care for like she was accustomed to. She has trouble with stairs, so much so that she had to have a stair-lift installed in her house. Manzone also cannot engage in her usual activities, drawing, painting, cooking, cutting hair and had to sell her summer house because she can no longer participate in lake-related activities such as swimming and boating, and she has lost her "creative flow." According to her husband, the two of them go out much less frequently, his wife can walk but sometimes requires a cane, particularly to walk outdoors, and they order in frequently because his wife can no longer cook. Plaintiff also no longer gardens, works in her studio or goes to Pennsylvania with him.
II. CONCLUSIONS OF LAW
As a preliminary matter, the parties agree that Pennsylvania law applies to this case. Under Pennsylvania law, a negligence claim requires proof that: (1) the defendant had a duty or obligation recognized by law; (2) the defendant breached that duty; (3) a causal connection exists between the breach and the duty; and (4) the breach created actual damage or loss. Krentz v. Consolidated Rail Corp. , 589 Pa. 576, 588, 910 A.2d 20, 27-28 (2006) ; Koziar v. Rayner , 200 A.3d 513, 518-19 (Pa. Super. Ct. 2018) ; Perotti v. Festival Fun Parks, LLC , 19-cv-1176, 2021 WL 3173463, at *1 (W.D. Pa. July 27, 2021).
The Court notes that even if the parties did not agree on the application of Pennsylvania law, the Court would still apply it for the reasons outlined in Defendant's post-trial submission, namely that under New York choice of law rules, the law governing negligence in New York and Pennsylvania differ, and Pennsylvania, the site of the fall, has the greater interest in applying its law to an accident within its borders. See Vumbaca v. Terminal One Group, Ass'n L.P. , 859 F. Supp. 2d 343, 361 (E.D.N.Y. 2012).
Pennsylvania looks to the Restatement (Second) of Torts to determine the duty that a possessor of real property owes to those who come on his land. Carrender v. Fitterer , 503 Pa. 178, 184-85, 469 A.2d 120, 123 (1983) ; Collie v. Wal-Mart Stores East, L.P. , 16-CV-227, 2017 WL 1243168, at *3 (M.D. Pa. Feb. 1, 2017). The initial inquiry is whether the one who enters is a trespasser, licensee or invitee. Carrender , 503 Pa. at 184, 469 A.2d at 123. Here, Manzone was an invitee, owed the highest duty of care by Walmart. See Collie , 2017 WL 1243168, at *3.
Consistent with the Restatement (Second) of Torts § 343:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, but only if, he
(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 invitees, 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.
Zito v. Merit Outlet Stores , 436 Pa. Super. 213, 216, 647 A.2d 573, 574 (1994) ; Myers v. Penn Traffic Co. , 414 Pa. Super. 181, 185, 606 A.2d 926, 928 (1992), appeal denied , 533 Pa. 625, 620 A.2d 491 (1993) ; Nixon v. Family Dollar Stores of Pa, LLC , 20-CV-404, 2021 WL 2015188, at *4 (M.D. Pa. May 20, 2021).
The store owner, is not, however, an insurer of its shoppers. Zito , 436 Pa. Super. at 216, 647 A.2d at 575. Neither the existence of a harmful condition in a place of business, nor the happening of an accident due to that condition, in and of themselves, establish a breach of the duty of care or raise a presumption of negligence. Id. at 216-17, 647 A.2d at 575. Rather, in order to recover in a slip-and-fall case, such as this one, Manzone must prove that Walmart deviated from its duty of reasonable care and that Walmart knew or should have known of the existence of the harmful condition. Id. In addition, there must be proof that Walmart either helped create the harmful condition, or that it had actual or constructive notice of that condition. Id.
Moreover, a defendant will not be held liable for "known or obvious dangers." Id. (citing Restatement (Second) of Torts § 343A ); Nixon , 2021 WL 2015188, at *4. Specifically, "A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Zito , 436 Pa. Super. at 218, 647 A.2d at 575. One example of such a reason to expect harm particularly relevant here, is where the possessor of the land may expect the invitee-shopper's attention may be distracted so that she will not discover the obvious, forget what she has discovered, or fail to protect herself against it. Id. at 218, 647 A.2d at 575 (quoting Restatement (Second) Torts § 343A cmt. f to subsection 1); Rogers v. Max Azen, Inc. , 340 Pa. 328, 332, 16 A.2d 529, 531 (1940) ("It is true that a less degree of attention in the placement of the feet is required of customers in stores who walk along the aisles where goods are displayed upon every hand for the very purpose of catching the eye and attracting the attention of those who use the passageways, than is required of pedestrians on sidewalks....") (citation and internal quotations omitted); see Hallbauer v. Zara's , 191 Pa. Super. 171, 177, 156 A.2d 542, 545 (1959) ; Yarkosky v. The Caldwell Store, Inc. , 189 Pa. Super. 475, 480, 151 A.2d 839, 841 (1959) ; Collie , 2017 WL 1243168, at *3.
This rule has been sometimes characterized as a "no-duty" rule in premises liability cases. Perotti , 2021 WL 3173463, at *2 (citing Devlin v. Home Depot USA, Inc., 12-CV-766, 2013 WL 6835409, at *3 (M.D. Pa. Dec. 23, 2013) ; Berman v. Radnor Rolls, Inc. , 374 Pa. Super. 118, 131-32, 542 A.2d 525, 531 (1988) ). The no-duty rule is a two-prong inquiry, both subjective and objective: (1) for the subjective portion, that the danger must be known to exist and recognized as dangerous; and (2) as to the objective portion, both the condition and risk are apparent and would be recognized by a "reasonable person in the position of the visitor exercising normal perception, intelligence, and judgment." Perotti , 2021 WL 3173463, at *2 (quoting Wilson v. AutoZone Stores, LLC , 245 A.3d 1041 (Table), 2020 WL 7054430, at *6 (Pa. Super. Ct. Dec. 2, 2020) ).
Also relevant is Pennsylvania's comparative negligence statute, which Defendant invokes and bars recovery where a plaintiff's negligence is greater than that of the defendant. See 42 Pa. Cons. Stat. Ann. § 7102(a) ; Bouchard v. CSX Transp. Inc. , 196 Fed. App'x 65, 70 (3d Cir. 2006) ; Peraza v. United States , CV 12-1353, 2013 WL 5441985, at *6 (M.D. Pa. Sept. 27, 2013). Although not addressed directly by the parties, the Pennsylvania statute also provides for apportionment of an award where both sides bear some responsibility, and the plaintiff is less than 50 percent responsible. See 42 Pa. Cons. Stat. Ann. § 7102(a). As summarized by the Pennsylvania Superior Court:
Contributory negligence is conduct on the part of a plaintiff which falls below the standard [of care] to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff's harm. Contributory fault may stem either from plaintiff's careless exposure of himself to danger or from his failure to exercise reasonable diligence for his own protection.
Angelo v. Diamontoni , 871 A.2d 1276, 1280 (Pa. Super. Ct. 2005) (quoting Columbia Med. Group, Inc. v. Herring & Roll, P.C. , 829 A.2d 1184, 1192 (Pa. Super. Ct. 2003) (alteration in original)).
One specific form on contributory negligence that Walmart seeks to apply is the "Choice of Ways" rule, which provides that, "[w]here a person, having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover." Quinn v. Funk Building Corp. , 437 Pa. 268, 273, 263 A.2d 458, 461 (1970) (internal quotation omitted); Mirabel v. Morales , 57 A.3d 144, 153-54 (Pa. Super. Ct. 2012) ; Downing v. Shaffer , 246 Pa. Super. 512, 518, 371 A.2d 953, 956 (1977). In order to invoke the Choice of Ways rule, "[t]here must be evidence of (1) a safe course, (2) a dangerous course, and (3) facts which would put a reasonable person on notice of the danger or actual knowledge of the danger." Updyke v. BP Oil Co. , 717 A.2d 546, 552 (Pa. Super. Ct. 1998) (quoting Downing , 246 Pa. Super. at 519, 371 A.2d at 956 ) (citing Restatement (Second) of Torts § 466, cmts. f and g). The doctrine "has a narrow application" and should be applied only in the "clearest case." Mirabel , 57 A.3d at 154 (quoting Oswald v. Stewart , 301 Pa. Super. 463, 466, 448 A.2d 1, 2 (1982) ). Contributory negligence, including the Choice of Ways rule, is an affirmative defense for which Walmart bears the burden of proof. Bouchard , 196 Fed. App'x at 69 ; Angelo , 871 A.2d at 1280.
A. Liability
Applying these standards, the Court finds that Defendant Walmart is 100 percent liable for Plaintiff Cheryl Manzone's injuries caused by the store's negligence. Plaintiff was an invitee to the Walmart store for the purposes of shopping. As such, Defendant owed her a duty of care, which was breached when it was stripping and waxing its floors. In reaching this conclusion, the Court relies on several determinations as of fact. Initially, when cleaning, Walmart failed to place any cones or other types of warnings signs ahead or at the periphery of where the work was being done. This failure is a violation of industry standards as recognized both by Walmart's internal policies and Plaintiffs’ expert, whose opinion the Court accepts. While it is true that there was a yellow rope indicating cleaning work going on, the rope was at Manzone's knee, well below her sight line, and she never crossed the rope before her fall. At best she came upon the rope, leading the Court to conclude that the slippery area went up to and beyond the rope, which in turn, consistent with Plaintiffs’ expert evidence, caused her to fall and suffer her injuries.
In reaching this conclusion the Court rejects Defendant's attempt to rely on the contributory negligence doctrine and more specifically the Choice of Ways rule. The burden here is with Walmart, which it fails to carry. Manzone was at the store shopping, and as the case law recognizes, a certain amount of distraction caused by Walmart's sales displays was to be expected. Plaintiff testified credibly (and was the only witness to testify in person), that while she was shopping, there were no warning cones or signs, and that while she saw a yellow rope well below waist level, she never crossed it, but nevertheless slipped and fell. Based on these facts, the Court concludes that there was no contributory negligence.
Further, Defendant's attempt to invoke the Choice of Ways rule fails. Simply stated, Walmart refers to no specific evidence in its post-trial briefing in support of the doctrine's application. While there was clearly a dangerous course for Manzone to take shopping, there is no evidence submitted of a safe course. No facts are offered indicating that another aisle was unobstructed, not being stripped or waxed, or was otherwise "safe" that led to the same display, and the Court is unwilling make this leap on its own. Moreover, as set forth above, Plaintiff was never put on notice of a danger concerning that path she took. Given Pennsylvania's recognition that the doctrine is to be narrowly applied, Defendant's attempt to use it here is rejected.
Finally, as to liability, the Court addresses Plaintiff Steven Manzone's claim for loss of society. This claim is hard to understand on the evidence offered and the parties’ post-trial submissions. The only reference in Plaintiffs’ post-trial brief is in the conclusion, where he seeks an award of $150,000 with no explanation as to how he comes to this number. The only evidence offered on this point, other than a vague reference from Mrs. Manzone concerning the couple's romantic life, is Steven Manzone's deposition testimony, which mainly focuses on his wife's injuries with a few comments about how the couple does not go out or socialize as much as they used to. There appears to be no evidence concerning his own damages, however. Given this limited evidence, the Court concludes that Plaintiffs have failed to establish a claim for Steven Manzone, and his cause of action is dismissed.
B. Damages
Having determined Walmart's liability as to Plaintiff's injuries, the Court turns to the question of damages. On this issue, the only evidence is from one of Manzone's treating physicians, Dr. Toledano, that Plaintiff's fall caused aggravation of her pre-existing conditions. Based on the pain and suffering caused by the fall and resulting aggravation, requiring a trip the emergency room and admission to North Shore Hospital on Long Island for two days, and near-monthly treatment for two years to manage her pain, including Lidocaine injections and other medications, and having considered other relevant awards in Pennsylvania, the Court awards Plaintiff $90,000. See , e.g. , Gonzalez v. Sun , 081203152, 2020 WL 3096583 (Pa. Ct. Comm. Pl. July 22, 2010) (2010 $85,750 verdict in car accident case where the plaintiff was taken to the hospital by ambulance, treated for sprains and strains to back and neck, later diagnosed with lumbar radiculopathy and had chiropractic treatment and physical therapy, and was treated with injections in lumbar region impacting ability to braid daughter's hair and play with her); Vance v. Charlie's Hamburgers , 2002-6818, 2003 WL 26080897 (Pa. Ct. Comm. Pl. July 8, 2003) (2003 award of $70,000 in slip-and-fall for arm, shoulder, neck and back injuries, anxiety, aggravation of pre-existing conditions, medical expense and lost earnings and earning capacity, amount apportioned); Smith v. SEPTA , 92-3330, 1996 WL 105132 (Pa. Ct. Comm. Pl. Feb. 1, 1996) (1996 award of $110,000 in trip-and-fall for pain and suffering for lumbrosacral strain requiring for epidural block procedures and contusions to the knee ); see generally Charis v. SEPTA , 03131, 1991 WL 718313 (Pa. Ct. Comm. Pl. 1991) (1991 $50,000 settlement for soft tissue injury to back, neck and legs for fall on bus when driver pulled away at high speed before the plaintiff was seated and fell); Rodriquez v. SEPTA , 2305, 1991 WL 718369 (Pa. Ct. Comm. Pl. Sept. 1, 1991) (1991 $125,000 verdict for re-injury of pre-existing herniated disc from fall in train station).
III. CONCLUSION
For all of the foregoing reasons, the Court orders that judgment be entered in favor Plaintiff Cheryl Manzone against Defendant Wal-Mart in the amount of $90,000 and in favor of Defendant as to the claim of Steven Manzone.