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Pannell v. Target Corporation

United States District Court, Second Circuit

May 22, 2013

TRACY PANNELL as Mother and Natural Guardian of EPIPHANY PANNELL, and TRACY PANNELL Individually, Plaintiffs,


PAUL A. CROTTY, District Judge.

This tort case arises from injuries that Plaintiff Epiphany Pannell ("Epiphany" or "Plaintiff') sustained while shopping at a Target store. Epiphany, who was five years old at the time of the incident, claims that Target Corporation's ("Target's") negligent maintenance of a shelf caused six heavy boxes of furniture to collapse on her. (Def. Ex. A Compl. § 12.) Epiphany's mother, Tracy Pannell ("Tracy"), has withdrawn her personal claim for the loss of Epiphany's services, leaving only Epiphany's claim for her own injuries, asserted by her mother on her behalf. Target presently moves for summary judgment, which Plaintiff opposes on the grounds that a jury may find liability on the theory of res ipsa loquitur.[1] Upon viewing evidence in the non-movant's favor and drawing all reasonable inferences in her favor, there are genuine issues of material fact which must be submitted to a jury. None of Target's arguments support its claim for summary judgment and accordingly, Target's motion for summary judgment is DENIED.


On May 27, 2010, Tracy Pannell took her daughter, Epiphany Pannell, shopping at the Target store located at 40 West 225th Street in the Bronx, New York. (Defs. Ex. A Compl. §§1, 2, 6.)[2] As Plaintiff and her mother were walking down an aisle in the furniture section, they paused to examine a shelf of children's furniture. (Defs. Ex. G Tracy Pannell Dep. 34:4-12, 35:7-10, 39:23-40:1-7.) The shelf was approximately five feet high, and supported six boxes containing bookcases that weighed approximately forty five pounds each. (Id. 35:20-25, 41:10-21.) A few minutes after they entered the aisle, without warning, boxes from the shelf fell and struck Epiphany on the head. (Id. 34:24-35:6, 57:5-10; Pl. Ex. A Pannell Aff § 2; Pl.'s Ex. C Electronic Incident Report.)[3] Aside from Tracy, there were no witnesses who saw the incident. Neither Tracy nor Epiphany touched the shelf or the boxes prior to the accident. (Id. 51:18-24.) When Epiphany was struck, Tracy called out for help and within two minutes, a Target employee appeared. (Pl. Ex. A Pannell Aff. § 2.) The employee saw Epiphany sitting on the ground near the collapsed boxes. (Def. Ex. H Hadabbeh Aff. § 3.)[4] He noticed that although one shelf bracket was "firmly in its holder... the other bracket had come out somewhat from its holder, causing the shelf to lean to one side." (Id. § 4.) Tracy, too, noticed immediately after Epiphany fell that the bracket was not fastened to the wall, and the shelf was slanted in the direction of the failed bracket. (Def. Ex. G Pannell Dep. 67:14-17; 76:2-7.) The bracket itself did not appear to be broken or bent. (Id. 69:6-13.) After the employee called for assistance on his walkie-talkie, he replaced the bracket into its holder. (Def. Ex. H Hadabbeh Aff. § 5.) The employee contends that he had personally walked through the aisle ten to fifteen minutes prior to the accident and observed nothing out of the ordinary. (Id. § 6.) The particular shelf in question, he adds, was level and seemingly secure. (Id.)

Epiphany was taken from Target to the emergency room by an ambulance. (Def. Ex. C Electronic Incident Report; Def. Ex. G Pannell Dep. 105:20-22.) At the emergency room, Epiphany complained of head and neck pain. (Pl. Ex. A Pannell Aff. § 4.) After the accident, Tracy began to notice "outbursts of temper and [that Epiphany] seemed disordered at times with respect to her ability to perform relatively straight forward organizational tasks." (Id. § 4.) Tracy brought her daughter to see a clinical psychiatrist. (Pl. Ex. I Mead Report.) Tracy contends that in addition to physical ailments, the accident caused her daughter brain damage and seeks to recover against Target for its alleged negligence.

I. Summary Judgment Standard

Summary judgment may be granted where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). The moving party bears the initial burden of producing evidence on each material element of its claim or defense demonstrating that it is entitled to relief See Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party, which "must set forth specific facts showing that there is a genuine issue for trial, " wherein "a reasonable jury could return a verdict for the non-moving party." Anderson , 477 U.S. at 248. "In reviewing a summary judgment motion, [the Court] must resolve all ambiguities and draw all reasonable inferences in the non-movant's favor." Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co. , 373 F.3d 241, 244 (2d Cir. 2004).

II. Legal Standard for Res Ipsa Loquitor

Both parties agree, and the Court assumes, that New York tort law applies to this diversity action. Res ipsa loquitur ("res ipsa") permits a jury to infer negligence, based on circumstantial evidence, simply from the fact that an event happened. St. Paul Fire & Marine Ins. Co. v. City of N.Y. , 907 F.2d 299, 302 (2d Cir. 1990). A plaintiff to whom a duty of care is owed may rely on the doctrine to establish a prima facie case without proving each of the elements of a traditional negligence claim. In New York, a res ipsa inference requires three elements: "(1) the event was of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it was not due to any voluntary action or contribution on the part of the plaintiff" Id . (citing Dermatossain v. New York City Transit Auth. , 67 N.Y.2d 219, 226 (1986)).[5]

At the summary judgment phase, "the court's role is to determine whether there is sufficient evidence from which a jury reasonably could find that plaintiffs have proved the elements necessary for the application of the doctrine." Lomax-Bianco v. Marriott Intl, 1998 U.S. Dist. LEXIS 8093, at *4 (S.D.N.Y. 1998).

III. Application of Res Ipsa to This Case

As to the first element, Target concedes that heavy boxes do not ordinarily fall from shelves onto infant children absent negligence. The facts here are just like the infamous barrel of flour that rolled from a merchant's second-story window one hundred and fifty years ago in Byrne v. Boadle , 159 Eng. Rep. 299 (1863). Shelves of sufficient strength, durability, and suitability do not usually collapse unless they are insecurely fastened, overburdened, or otherwise disturbed. There is more than sufficient factual basis for a jury to infer that the accident occurred because someone was at fault.

Similarly, the third element is not at issue. There is no evidence in the record that Epiphany contributed in any way to the injury she suffered. Target does not dispute that neither Tracy nor Epiphany touched the shelves or boxes prior to their collapse. (Def. Ex. G Pannell Dep. 42:4-9.)

Target's chief argument raises the question whether Target had exclusive control over the instrument that caused Epiphany's injury.[6] Target contends that customers are encouraged to freely peruse the aisles, take merchandise from shelves, examine it and replace it. (Dudley Alf. § 2.) According to Target, neither the collapsed shelf nor the boxes on the shelf were within Target's exclusive control. Its argument would permit Target to insulate itself from its responsibilities as a shop keeper and transfer ...

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