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Hawley v. Hannaford Bros. Co. LLC

United States District Court, D. Vermont

August 1, 2018

ANNE HAWLEY Plaintiff,
v.
HANNAFORD BROS. CO. LLC, Defendant.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO EXCLUDE PLAINTIFF'S EXPERT JERRY BIRNBACH AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOCS. 30 & 37)

          CHRISTINA REISS, DISTRICT JUDGE

         Plaintiff Anne Hawley brings a negligence claim against Defendant Hannaford Bros. Co. LLC, alleging Defendant breached its duty to maintain its premises in a safe condition. Plaintiff claims her pant leg caught on a wire hook protruding from a floor display in the aisle of Defendant's Essex Junction, Vermont grocery store, causing her to fall and fracture her hip (the "incident"). Pending before the court is Defendant's motion to exclude Plaintiffs expert witness, Jerry Birnbach, (Doc. 37) and Defendant's motion for summary judgment. (Doc. 30.) On April 26, 2018, the court heard oral argument and took the pending motions under advisement.

         Plaintiff is represented by Thomas J. Sherrer. Defendant is represented by Walter E. Judge, Jr., Esq., Jennifer E. McDonald, Esq., and Samantha V. Lednicky, Esq.

         I. Factual Background.

         A. Undisputed Facts.

         On March 23, 2015, Plaintiff was a customer at Defendant's grocery store in Essex Junction, Vermont. At approximately 1:00 p.m., Plaintiff was walking through the store and pushing a grocery cart when she pulled over to the side of a shopping aisle and stopped to check her grocery list. She was "totally aware" that on her right-hand side was a free-standing display of tuna fish, "aware enough that no part of [her] body ever touched it." (Doc. 31-1 at 8-9.) After checking her list, Plaintiff decided to return to another aisle. With her back to the tuna fish display, she took a step back and turned to her left. According to Defendant's Incident Report, upon turning to the left, Plaintiff "[caught] her right pant leg on [a] hook" located at the base of the wire display, and she fell to the floor, landing on her left side. (Doc. 36-4 at 2.) Plaintiff suffered a left femoral neck hip fracture which required a left total hip arthroplasty.

         The display rack at issue was a spider rack with hooks manufactured by non-party Sam Pievac Company. Plaintiffs expert witness, Jerry Birnbach, testified that the Sam Pievac Company has a "[g]ood[]" reputation. (Doc. 31-2 at 4.) Prior to this case, he had not seen a spider rack or a similar rack. He is not aware of any other complaints concerning spider racks.

         Prior to the incident, Defendant "changed what [it] order[ed] [in 2010] so that [the display racks] can connect together." (Doc. 36-14 at 3.) Defendant sought out and obtained spider racks with hooks in order to join multiple display racks together such that "if they got hit they would not separate and the product would not fall." (Doc. 36-15 at 3.) There are no written instructions on the use of the spider rack with hooks. None of Defendant's other display racks have hooks.

         Although Defendant has used spider racks for over forty-five years, Defendant did not use the spider rack with hooks until 2010 or 2011 -[1] Since then, its grocery stores have used both spider racks with and without hooks. For example, Defendant's South Burlington, Vermont location, as of February 1, 2018, had thirty-four spider rack displays. Four of those spider racks had hooks; thirty did not.

         The spider rack with hooks is a rectangular wire rack used as a base for stacking boxes of merchandise. Located on the sides of the rack are four "receivers" and four "hooks" which connect the racks together to form a larger display.[2] There are two sides with two hooks each and two sides with two receivers each. The hooks are attached to the display base, shaped in an "L," and point downward. There is no so-called "end unit[]" rack without hooks. (Doc. 31-2 at 7) (internal quotation marks omitted).

         At the time of the incident, Defendant used the spider rack with hooks as a single, free-standing aisle display.[3] The spider rack at issue was set up in accordance with Defendant's store policy. The "In-Aisle Merchandising" chapter of Defendant's "Store Visual Merchandising Guide" depicts spider rack with hooks being used in the singular application in accordance with Defendant's training aids. The "In-Aisle Merchandising" chapter, however, does not contain guidance as to how spider racks with hooks should be used.

         Defendant's "Standard Practice Training Aid" for "Merchandising In Aisle Displays" states that the purpose of in-aisle displays is "to effectively merchandise [and] to drive impulse sales[.]" (Doc. 36-18 at 1.) Consistent with that purpose, the Training Aid states that display racks should be placed on the floor facing the flow of the customers. In-aisle displays should be placed twenty feet apart, face the back of the store on every odd-numbered aisle and the front on every even-numbered aisle, and set up at an angle to allow the customer to access the shelf behind the display. Defendant's assistant store manager, Kenneth Goulette, walked through the aisles throughout the day to ensure that each display was properly set up.

         Although there were no other reported incidents related to spider racks at Defendant's grocery stores, Defendant's representatives acknowledged that it is "common[]" for customers to bump into racks, (Doc. 36-16 at 2), and "whether [it is] slip and falls or somebody just tripping over their feet[, ]" in the grocery business, these types of incidents "happen[] all the time." (Doc. 36-13 at 2.) Defendant's Health and Safety Standard Practice identifies "protruding object hazards" as an example of an unsafe condition in its stores. (Doc. 36-25 at 4.)

         B. Disputed Facts.

         The parties dispute whether the hooks on the spider rack were protruding into the aisle. Defendant relies on the testimony of its store manager, Curt Echo, who claimed that the hooks were not protruding into the aisle and that the store did not have a policy as to which side of the rack, the side with hooks or the side with receivers, should face the customer. In contrast, Plaintiffs expert, Mr. Birnbach, opined that the hooks do protrude into the aisle. In addition, Defendant's own statement of undisputed facts asserts that the wire hooks protrude 0.47 inches from the display base.

         The parties further dispute the extent to which the spider rack with hooks was visible to Plaintiff when the incident occurred. Defendant points out that Plaintiff saw the display when she walked down the aisle, that there was nothing blocking her view of the display, and that the display was not in the middle of the aisle. Plaintiff does not dispute that she was aware of the display before she fell, but avers that she was unaware of the wire hooks at the base of the display. She testified in deposition that she "could feel [herself] falling" and she "looked down and [her] corduroys were caught... on that [display] rack and [she] couldn't see what had them." (Doc. 31-1 at 4.) After she fell, Plaintiff slid her legs along the aisle until she was leaning against the grocery store shelves for support. She then looked over at the display rack and "noticed down at the bottom of [it] there were hooks[, ]" at which point she thought those hooks were "what [her] pants were caught on" when she fell. Id. at 5. Defendant's employee, John Raymond, testified that he "doubt[ed]" that the average customer "look[s] down there[, ]" meaning towards the base of the display where the spider rack hooks are located. (Doc. 36-16 at 4.)

         Defendant asserts that spider racks with hooks do not pose any potentially dangerous condition for customers. Defendant's representative admitted that there could be differences of opinion with regard to this issue, and another employee stated that he could not reach a conclusion on this issue.

         II. Conclusions of Law and Analysis.

         A. Whether Jerry Birnbach's Expert Testimony Should be Excluded.

         Pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Defendant moves to exclude Mr. Birnbach's expert testimony. Plaintiff argues that Defendant's motion should be denied because Defendant filed its motion "more than two months past the motion deadline." (Doc. 39 at 2-3.) The Second Amended Stipulated Discovery Schedule (the "Discovery Schedule") states that "[m]otions, including summary judgment motions but excluding motions relating to the conduct of the trial, shall be filed on or before December 30, 2017." (Doc. 24 at 2, ¶ 9) (emphasis omitted). Because Defendant's motion seeks to exclude expert testimony that would be presented at trial, it is not subject to the Discovery Schedule's December 30, 2017 motion deadline. Defendant's motion to exclude Mr. Birnbach's testimony is therefore not untimely.

         Because the court must "decide questions regarding the admissibility of evidence" in order to resolve Defendant's motion for summary judgment, it must first consider whether Mr. Birnbach's expert opinions are admissible. Raskin v. Wyatt Co.,125 F.3d 55, 66 (2d Cir. 1997); see also Foley v. United States, 294 F.Supp.3d 83, 91 (W.D.N.Y.2018) ("Thus, the Court will first determine the admissibility of [the plaintiffs] Expert Report prior to determining the merits of the [defendant]'s summary judgment motion."). Plaintiff asserts that Mr. Birnbach properly relied on his experience in retail display design in forming his ...


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