PHILADELPHIA – A Bucks County man and his wife have responded in opposition to JCPenney’s motion for summary judgment, in litigation where the husband-plaintiff alleged he suffered an injurious fall at the retailer’s store in Langhorne’s Oxford Valley Mall more than three-and-a-half years ago.
Raymond Johnson and Josephine Scott of Bensalem first filed suit in the Philadelphia County Court of Common Pleas on Aug. 3, 2022 versus J.C. Penney Corporation, Inc. of Langhorne, Old Copper Company, Inc. of Plano, Texas, Penney OPCO, LLC (doing business as “JCPenney”) and Simon Property Group, Inc. of Wilmington, Del. and Brookfield Asset Management, Inc. of New York, N.Y.
“In the early afternoon of Aug. 23, 2020, plaintiff Raymond Johnson, validly on the premises as a business invitee, was shopping on the premises, when he was caused to fall on a dangerous and defective condition of the premises, namely a slippery substance on the ground, believed to be vomit, causing plaintiff Raymond Johnson, the injuries and other losses more fully set forth herein,” the suit said.
“Prior to the accident, defendants had actual and/or constructive notice of the defective and dangerous conditions that caused plaintiff’s injuries. Defendants failed to take reasonable steps to correct and/or prevent the dangerous conditions on their premises prior to tire accident. Defendants failed to provide any warning to patrons, including plaintiff Raymond Johnson, of the defective and dangerous conditions prior to the accident.”
The plaintiffs claimed that any and all negligence for the incident rests with the defendants.
“At all times material hereto, plaintiff acted in a reasonable and prudent manner and was free from any comparative negligence. At the time of the incident, defendants breached the duty of care owed to plaintiff. At all times material hereto, plaintiff did not assume the risk of injuries. At all material times, defendants were responsible for maintaining the premises and all associated grounds in a clean manner and in a state of good repair. Business invitees and the general public were expected by defendants to walk the premises,” the suit stated.
“As a result of the negligence and carelessness of the defendants acting as aforesaid, plaintiff Raymond Johnson, was caused to sustain severe injuries of, but not limited to, his bones, joints, muscles, tendons, blood vessels and soft tissues through his entire body; he was caused to sustain injuries and/or aggravate pre-existing injuries, including but not limited to: back, lumbar disc protrusions/herniations, lumbar radiculopathy, left ankle, leg numbness, and a severe shock to the nerves and nervous system, all of which said injuries have in the past and will in the future cause plaintiff great pain and suffering, and are permanent in nature.”
On Sept. 14, 2022, counsel for JCPenney removed the case to the U.S. District Court for the Eastern District of Pennsylvania, citing diversity of citizenship between the parties and the amount of damages at issue.
“Based upon allegations in plaintiffs’ complaint, Brookfield Asset Management is incorporated in New York and, therefore a citizen of New York. Thus, as plaintiffs are citizens of Pennsylvania and defendants are citizens of Texas, Delaware and New York respectively. Accordingly, there is complete diversity of citizenship between the parties pursuant to 28 U.S.C. Section 1332(c)(1). After sending plaintiffs’ counsel an email whether he would agree to cap damages below the federal jurisdictional limits, plaintiffs’ counsel indicated he could not. Therefore, the amount in controversy meets federal jurisdictional limits,” the removal notice stated.
“Pursuant to 28 U.S.C. Section 1446(b)(3), this notice of removal is timely filed. This court is the federal court embracing the Philadelphia County Court of Common Pleas, Commonwealth of Pennsylvania, where the original action was filed. Thus, venue and removal to this Court are proper under 28 U.S.C. Section 14411(a). Because this action satisfies the requirement of 28 U.S.C. Section 1331, this Court has original and supplemental jurisdiction over all claims alleged in the complaint, and this action may be removed to this Court pursuant to 28 U.S.C. Section 1441. Because there is complete diversity of citizenship and the amount in controversy is in excess of $75,000, this case is properly removed to this Court.”
JCPenney answered the complaint on Oct. 24, 2022, denying the plaintiff’s charges in their entirety and providing affirmative defenses on its own behalf.
“Plaintiffs’ alleged injuries were caused and/or contributed to, in whole or in part, by the negligence and/or carelessness of persons, parties, and/or organizations other than answering defendant, over whom answering defendant had no control, right of control, or responsibility and was due in no matter whatsoever to any act or failure to act on the part of answering defendant. Plaintiffs’ alleged injuries were caused by the intervening negligence of a third person or persons which was the superseding cause of Plaintiffs’ injuries and, therefore, answering defendant is not liable over to the plaintiffs or anyone else. Answering defendant did not have any notice, either actual or constructive, of the claimed dangerous condition, nor would a reasonable inspection have disclosed any such dangerous condition, to the extent one existed, at the time of plaintiff’s claimed injuries. Any act, conduct, failure to act or misconduct by answering defendant, or by any person for whose acts answering defendant was responsible, did not cause any damages/injuries to the plaintiff. Plaintiff’s injuries may have been caused by the negligence and/or carelessness of plaintiff, Raymond Johnson, and any recovery shall be barred and/or limited by the applicable provisions of the Pennsylvania Comparative Negligence Act and the contributory negligence of the plaintiff,” the defenses stated, in part.
“The alleged defective conditions were not open and obvious to someone exercising reasonable care for their safety. Plaintiffs failed to mitigate their damages and/or exercise reasonable care to prevent aggravation of their alleged injuries. Defendant complied with all applicable statutes, ordinances and laws. Plaintiffs’ complaint fails to state a claim upon which relief can be granted. Plaintiffs’ claims may be barred and/or limited by the Bankruptcy Code. Defendant acted with due care and regard at all times relevant hereto. Plaintiffs’ claims should be offset by any collateral source of benefits. Defendant reserves the right to supplement its affirmative defenses.”
A stipulation from all parties reached on March 17, 2023 saw the dismissal of all of the defendants from the case, with the exception of Penney OPCO, LLC.
“Defendant Penney OPCO LLC (doing business as “JCPenney”), agrees that if liability is found, that it is responsible for the area in question, as alleged in plaintiffs’ complaint. Penney OPCO, LLC will not argue that the parties being dismissed without prejudice are responsible for the area in question. Simon Property Group, Inc., Brookfield Asset Management, Inc., J.C. Penney Corporation, Inc. and Old Copper Company, Inc. are dismissed as parties to the above matter, without prejudice,” per the stipulation.
“Plaintiffs shall have the opportunity to join any of the dismissed defendants should they discover documentation and/or information identifying such party as potentially responsible/liable. The caption shall be amended to read Raymond Johnson and Josephine Scott, h/w v. Penney OPCO, LLC (doing business as ‘JCPenney’).”
On Dec. 19, 2023, arbitrators found in favor of the defendant, Penney OPCO, LLC and against the plaintiffs. This was followed by the plaintiffs appealing that decision by filing on Jan. 2 for a trial de novo, whereas the defendant subsequently filed on Jan. 9 for a trial by jury.
This was followed by the defendant bringing forward a motion for summary judgment on March 4.
“Despite the facts that: (1) Plaintiff admits he was staring straight ahead and did not look where he was stepping; (2) The vomit in the subject matter is similarly an open and obvious condition to someone exercising reasonable care for their safety which Pennsylvania law requires that plaintiff do; (3) Plaintiff, by his own admission, had a wide path and could have easily walked around the subject condition; and (4) Plaintiff admitted [in his deposition] there was nothing obstructing his view, plaintiff argues that moving defendant should nonetheless compensate plaintiff for his admitted failure to observe the open and obvious condition, by way of vomit on the floor, as he walked through the store,” the summary judgment motion stated.
“While it is unfortunate that plaintiff allegedly slipped, moving defendant respectfully submits that plaintiff should not be able to recover in this matter because he failed to exercise care for his own safety and observe the open and obvious substance on the floor. Plaintiff had an affirmative duty under Pennsylvania law to observe his surroundings, and failed to do so, despite its obviousness. Accordingly, moving defendant respectfully submits…no duty of care was owed with respect to the vomit, as plaintiff would have discovered it had he been exercising reasonable care for his surroundings.”
UPDATE
The plaintiffs responded in opposition to the summary judgment motion on April 5, arguing that granting summary judgment at this juncture would be improper.
“In the present case, ample facts have been adduced confirming defendant was well aware there was a dangerous condition on its premises – the vomit on the floor. Likewise, plaintiff has confirmed that defendant failed to take any corrective or remedial measures to remove the vomit and failed to warn patrons, including Mr. Johnson, who was a business invitee entitled to the highest protections under the law. Finally, plaintiff has supplied sufficient evidence to reject defendant’s argument that the vomit was an open and obvious condition. As noted above, Mr. Johnson and Ms. Scott both testified that the color of the vomit was almost identical to that of the tile floor, making it nearly impossible to see,” the motion response stated.
“As defendant is the moving party, it is defendant’s burden to show the absence of a dispute as to material facts. Defendant has not, and cannot, do so. The only evidence defendant has provided is a bias statement from the manager responsible for the area at the time which lacks credibility and a photograph that was taken after the incident, which fails to show the vomit in question. When viewing the evidence in a light most favorable to plaintiff, the nonmoving party, there is no question that reasonable minds can differ. The cases cited in support of its position lack any merit and it is clear there are genuine issues of material facts that must be presented to a jury. Granting summary judgment based on the facts involved in this matter would essentially allow defendant and similarly situated businesses to forgo any requirement to clean and maintain their premises.”
For counts of negligence and loss of consortium, the plaintiff is seeking damages, jointly and severally, in excess of $50,000.
The plaintiffs are represented by Jason R. Weiss and Michael B. Alexanian of Haggerty Goldberg Schleifer & Kupersmith in Holland, Pa.
The defendant is represented by Jennifer Glazer Shorr of Weber Gallagher Simpson Stapleton Fires & Newby, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-03665
Philadelphia County Court of Common Pleas case 220800469
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com