PHILADELPHIA – A Delaware County plaintiff who alleged she was injured by a malfunctioning shelf shower organizer has countered a motion for summary judgment from Richard Homewares, who denied it was responsible for her injuries.
Sylvia Trafficante of Primos initially filed suit in the Philadelphia County Court of Common Pleas on Oct. 2, 2020 versus HomeGoods Broomall, Pa., Lawrence Park Shopping Center of Broomall, HomeGoods, Inc., the TJX Companies, Inc. of Framingham, Mass. and Richards Homewares, Inc. of Portland, Ore.
(The case was later removed to the U.S. District Court for the Eastern District of Pennsylvania on Oct. 28, 2020.)
“On Oct. 8, 2018, plaintiff attempted to install the Columbia 3 Shelf Shower Organizer with Soap Dish in her bathroom, as directed by the included instructions, in order to better organize her shower and the things in it, in a safe and reasonable manner. The space to be utilized by the product was 70.5 inches which required her to follow the instructions for installation at the height range to 69”-74”,” the suit stated.
“On the aforementioned date, plaintiff tediously followed the directions to install the product into the corner of her shower/bath combo in her residence, when suddenly and without warning or notice, the product violently sprung at her face causing severe and permanent injuries to her left eye and body, the entire scope and intent of which is still being determined by her medical provider.”
The plaintiff argued that all defendants owed her and other consumers similarly situated a duty of care to design, manufacture and sell products which were free of defects and unreasonably dangerous characteristics.
“Trafficante suffered injuries which were serious, severe, and permanent in nature, including but not limited to a (2 mm x 1 mm) partial thickness corneal laceration, two discrete central corneal epithelial defects, uveitis causing separation of the retina, microhyphema and active blood of the left eye, traumatic retinopathy, corneal abrasion, diminished vision requiring two pairs of glasses, traumatic glaucoma, cataract of the left eye, requiring surgical intervention and a lens implant, tension ring and shunt, eyelid damage, teeth grinding, headaches, permanent scarring and disfigurement, depression, anxiety and mental anguish resulting in damage to her teeth requiring an extraction and an implant, and a multitude of other ills which she may continue to experience into the future,” 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.”
HomeGoods filed an answer to the complaint on Nov. 17, 2020.
“Plaintiff by her own conduct, voluntarily and knowingly assumed the risk of her injury; therefore, her claims are barred by the doctrine of assumption of the risk. Plaintiff’s claims are barred by the statute of limitations. Plaintiff’s complaint fails to set forth a cause of action upon which relief can be granted,” according to HomeGoods’ affirmative defenses.
“Answering defendants had no actual or constructive notice of the condition alleged in plaintiff’s complaint. Answering defendants did not create the condition alleged in plaintiff’s complaint. Any alleged condition that is the subject of plaintiff’s complaint may have been open and obvious to plaintiff, and plaintiff may have failed to exercise due care in the face of an open and obvious risk.”
HomeGoods also brought a cross-claim for liability against its co-defendant, Richards Homewares.
Meanwhile, counsel for Richards Homewares also filed an answer to the suit on Nov. 18, 2020, denying its own liability for Trafficante’s injuries and asserting 29 affirmative defenses, just as HomeGoods did.
“Plaintiff’s recovery may be barred or limited by Plaintiff’s failure to properly mitigate her damages. Pursuant to 42 Pa.C.S.A. Section 7102, answering defendant shall only be liable for its proportionate share of plaintiff’s damages, if any. Plaintiff’s claims are barred by the doctrine of the assumption of the risk. Plaintiff’s claims are barred by the applicable statute of limitations,” per Richards Homewares’ affirmative defenses.
“Plaintiff’s complaint fails to state a claim upon which relief can be granted. Plaintiff’s claims are barred by the doctrines of res judicata, collateral estoppel, claim preclusion and/or issue preclusion. Plaintiff’s claims are barred by the doctrine of spoliation of evidence. The claims against answering defendant are barred, in whole or in part, by the sophisticated user doctrine.”
After HomeGoods Broomall, Pa. and the TJX Companies were dismissed with prejudice from the case on Aug. 3, 2021, Richards Homewares filed a motion for summary judgment on June 24.
“To prevail on any of her claims, plaintiff must prove that Richards Homewares, Inc.’s product was defective and the alleged defect caused plaintiff to suffer injury. Proof of causation in a products liability case requires plaintiff to present admissible expert testimony establishing defect and causation. As a result of this Court’s ruling on Richards’ simultaneously filed Daubert motion, plaintiff is unable to prove defect and/or causation because she has no expert permitted to testify as to the defect that caused the subject incident, or whether the instructions failed to warn of potential hazards and caused the accident,” according to the defendant’s summary judgment motion.
“Without an expert establishing defect and causation on plaintiff’s products liability claim, plaintiff will be unable to prove causation or breach on her negligence claim. Moreover, without expert testimony that the subject product was not safe or fit for the particular use for which it was made, plaintiff will be unable to prove her breach of warranty claim. Without such proof, there is no dispute of material fact as to the lack of defect and/or causation and Richards is entitled to judgment as to all of plaintiff’s claims.”
UPDATE
“Defendant Richards Homewares, Inc. simultaneously filed the instant motion for summary judgment with its Daubert motion to exclude testimony of plaintiff’s experts, Mathew Wagenhofer and Jason Kiddy. While not a rare occurrence, it is telling that defendant’s sole argument in the instant motion is that plaintiff cannot prove her case against it without the aid of her liability experts upon defendant’s assumption this Court will grant its Daubert motion. Plaintiff does not concede this point and presents argument given the record evidence which has been revealed in this matter,” according to the plaintiff’s response brief.
“Since Tincher overruled Azzarello in 2014, the question of whether a product was unreasonably dangerous pursuant to Section 402A of the Restatement (Second) of Torts and the Consumer Expectation Test and the Risk Utility Test has been returned to the jury. Plaintiff contends even without expert testimony on liability, which she does not expect to face as defendant’s Daubert motion will be denied, plaintiff may still prove a product defect under either the consumer expectation test if she can prove ‘the danger is unknowable and unacceptable to the average or ordinary consumer’ or the risk-utility test if she can prove ‘a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.”
The plaintiff added that even if the Court should grant the defense’s Daubert motion, she feels that the average individual can understand the concept of “how a product, like the one at issue which incorporates spring compression tension via a tension rod to secure it in place actually operates, as it is common in many products.”
For counts of negligence, strict product liability (both design defect and failure to warn) and breach of warranty, the plaintiff is seeking damages, jointly and severally, in excess of $50,000, plus a trial by jury.
The plaintiff is represented by Tyler J. Stampone of Stampone Law, in Cheltenham.
The defendants are represented by David Anthony Assalone and Sean T. Stadelman of Goldberg Segalla, both in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-05382
Philadelphia County Court of Common Pleas case 200902074
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com