PITTSBURGH – The manufacturer of an allegedly defective shopping cart is seeking summary judgment in a case filed by a Western Pennsylvania woman, who claimed that her broken left leg and left arm suffered while shopping at TJ Maxx were its fault and responsibility.
Deborah Davidson of Mars first filed suit in the Allegheny County Court of Common Pleas on Oct. 7, 2020 versus The Peggs Company, Inc., of Riverside, Calif.
“On Feb. 20, 2020, plaintiff was shopping in the TJ Maxx located at 1717 Route 228, Cranberry Township, PA, 16066. At all times relevant on such date, plaintiff was utilizing a shopping cart that TJ Maxx made available, a two-tiered/two-basket cart that was designed, manufactured, produced, distributed, and/or sold by defendant,” the suit stated.
“The cart was and is defective and dangerous. Specifically, and without limitation, the orientation, alignment, physical layout, and geometry of the handle and the rear wheels/casters was dangerous and defective, as the said wheels protrude some 2¼ inches beyond the handle.”
Though Davidson said she used the cart in a reasonable manner, she claimed she was grievously injured.
“Plaintiff stepped laterally to examine a product to her left when she unexpectedly tripped on the rear caster of the defective cart and fell to the ground. Davidson was transported to the emergency room at UPMC Passavant, where she was diagnosed with a broken left (proximal) femur and a broken left humerus, both of which required surgery,” per the suit.
“She developed post-operative diabetic ketoacidosis, requiring a lengthy stay in the ICU. She has since also suffered from pain, numbness, weakness, foot drop, and neuropathy in her left leg and foot. These injuries were caused by the defective cart designed, manufactured, produced, distributed, and/or sold by defendant; Plaintiff thus brings the instant suit against defendant to recover all legally cognizable damages for her significant injuries.”
Counsel for The Peggs Company filed a notice of removal for the case to federal court in the U.S. District Court for the Western District of Pennsylvania, on Oct. 28, 2020, based upon the amount sought in damages and diversity of citizenship.
UPDATE
The Peggs Company filed a motion for summary judgment on Jan. 14, seeking Davidson’s case be dismissed due to the plaintiff’s alleged failure to set forth a prima facie case that the shopping cart was defectively designed, plus her own contributory negligence.
“Plaintiff has been to this same TJ Maxx about every week for the past 20 years. She has used a two-tier cart occasionally while shopping there. Plaintiff had been shopping with this two-tiered shopping cart for at least an hour before the incident occurred,” the defendant’s motion stated, in part.
“While in the checkout line, plaintiff was talking to a lady behind her and then saw a tea towel hanging on a display and turned to go and tripped and fell on the shopping cart. Plaintiff did not see where her foot came into contact with the shopping cart. The incident was caught on video by the TJ Maxx surveillance video.”
The defense argued that in a failure-to-warn case in Pennsylvania, the threshold determination is “whether the product is defective for lack of sufficient warnings” under the consumer expectations test.
“First, as discussed above, there is no defect. Second, there is no unobvious dangers inherent in the product of a two-tiered shopping cart and specifically, this cart. Third, a plaintiff may recover only if ‘the lack of warning rendered the product unreasonably dangerous.’ The product is not ‘unreasonably dangerous’ by any means, is within the variance of the two-tiered shopping cart market and not an outlier,” the motion said.
“Lastly, there is nothing in the record by plaintiff’s testimony to establish the causation element in that the user of the product would have avoided the risk, had he or she been warned of it by the seller. To the contrary, the only evidence in the record on this point, is that plaintiff did not notice any warnings, not even those of the child seat for the cart. When plaintiff was asked generally if she saw any warnings or labels on the cart she was using that day, she stated, ‘No.”
Additionally, the defense stated that the design of a two-tier shopping cart passed the risk-utility test and “presented no risk to plaintiff in this incident, and no reasonable person would conclude a two-tiered shopping cart poses a probability and seriousness of harm to an adult.”
For counts of strict product liability (both design defect and lack of warning) and negligence, the plaintiff is seeking compensatory damages in a sum in excess of the applicable arbitration limits plus all interest, costs, delay damages and such other or additional relief as this Court may deem appropriate, plus a trial by jury.
The plaintiff is represented by Noah P. Fardo, William F. Rogel and Jaclyn M. DiPaola of Flaherty Fardo Rogel & Amick, in Pittsburgh.
The defendant is represented by Thomas DiStefano of Rawle & Henderson, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-01641
Allegheny County Court of Common Pleas case GD-20-010630
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com