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Whether Elf On The Shelf Or Toy On The Floor–You Still Have To Look Where You Are Going (PA)

December 15, 2021

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<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/12/Debra-Pickett-v.-Target-Corporation.pdf">Debra Pickett v. Target Corporation</a>,</em> the Middle District of Pennsylvania reaffirmed two fundamental principles of premises liability law:  (1) that a plaintiff must establish that a defendant had actual or constructive notice of an alleged defect; and (2) that a plaintiff must look where he is going.</p>
<p style="text-align: justify;">Debra Pickett was injured while shopping with her husband at a Target store in Wilkes Barre, PA when she slipped and fell on a Spritz Grabber, a children’s grabber toy that was on the floor of the main aisle of the store.   At the close of discovery, Target moved for summary judgment.  In considering Target’s motion, the Hon. Malachy E. Mannion, U.S.D.J. addressed the issues of actual and constructive notice and whether the toy on the floor of the main aisle was an open and obvious defect.</p>
<p style="text-align: justify;">Pickett did not explicitly argue that Target had actual notice of the toy, but suggested that it knew of the Spritz Grabber because it was aware that Target store merchandise frequently fell onto busy areas of the store, including the site of Pickett’s fall.  Judge Mannion rejected this argument, holding that an inference of actual notice, simply because merchandise would frequently make its way onto the floor of the store, would extend the actual notice doctrine beyond its use as established precedent.</p>
<p style="text-align: justify;">Pickett also relied on the constructive notice doctrine arguing that a reasonable jury could infer the that Spritz Grabber was on the floor long enough for Target to have notice of it because there was a genuine issue of material fact as to whether Target monitored the area of the incident prior to her fall.  Pickett argued that Target did not monitor the area of the incident, because if it had done so, the accident would not have occurred.  Judge Mannion rejected this argument as “circular and thus ineffective.”</p>
<p style="text-align: justify;">This case is a great reminder that in determining whether a defendant had constructive notice of an allegedly dangerous condition, one of the most important factors to consider is the amount of time that elapsed between the origin of the hazard and the accident.  Where the duration of the time between the creation of the hazard and a plaintiff’s injury is very short, a possessor of land would not be able to discover the hazard “even in the exercise of reasonable care,” and therefore would owe no duty to protect invitees such as Pickett from the hazard.  Here, Pickett failed to present any evidence in her favor as to the amount of time the toy was on the floor.  The only evidence as to duration of time was that Pickett and her husband were on the main aisle of the Target store approximately 45 minutes before her fall and they did not see any merchandise on the floor at that time.   However, Judge Mannion stated that these facts were insufficient evidence of duration, as it was equally likely that the Spritz Grabber fell on the floor many minutes before the accident or mere seconds before the fall, which case Target would not have been able to discover the toy even in the exercise of reasonable care.  Without evidence in Pickett’s favor, a reasonable jury could not conclude that Target had reason to know of the hazardous condition.  Consequently, Pickett could not defeat Target’s motion for summary judgment.</p>
<p style="text-align: justify;">Although the notice issue was dispositive, Judge Mannion went on to address the dispute over whether Spritz Grabber on the floor of the main aisle was an open and obvious condition, for which Target would owe Pickett no duty of care.  Pickett contended that the Spritz Grabber was not an obvious condition and, in any event, the question of whether a hazard is obvious to a plaintiff is a question of fact reserved for the jury.  Judge Mannion found Pickett’s position unpersuasive.  “It is hornbook law in Pennsylvania that a person must look where he is going.”  The parties agreed that the Spritz Grabber was at least 14 inches long, was red, blue, and green, and was laid in an area that was well-lit and free of debris.  Pickett and her husband conceded that they could see ahead and around as they were walking down the main aisle before the incident occurred.  Given these circumstances, Judge Mannion found that reasonable minds could not differ regarding the obviousness of the Spritz Grabber, because the toy would have been obvious to a reasonable person exercising normal perception under Pickett’s circumstances. Accordingly, Judge Mannion granted Target’s motion for summary judgment.</p>
<p style="text-align: justify;">Thanks to James Scott for his assistance in this article.  Should you have any questions, please feel free to contact <a href="mailto:tbracken@wcmlaw.com">Thomas Bracken</a>.</p>

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