John Wutz and Brian Searls, partners from Chartwell’s Philadelphia and Moorestown, New Jersey offices, won a motion for summary judgment in the United States District Court for the District of New Jersey, on behalf of one of Chartwell’s retail clients in the case of Cortes v. BJ’s Wholesale Club, Inc.
Plaintiffs alleged that on the morning of January 26, 2015, Ms. Cortes fell while she and her husband were shopping at the Linden, New Jersey BJ's Wholesale Club. Ms. Cortes alleged she slipped in a pool of water approximately two feet wide, created by melting snow from a cart left in the aisle. Plaintiffs, who had been in the store for approximately thirty minutes prior to the incident, did not see water in any other part of the club, nor was there any evidence that the club’s employees knew there was water in the aisle. The court further found that defendant had numerous safety protocols in place including: morning and evening inspections which require a walkthrough of the entire premises; ongoing patrolling of the aisles; employee incentives to encourage attention to safety; and the assignment of “recovery” personnel “responsible for making sure the aisles are clear” and for alerting management to hazards.
In granting the motion, the court found that there was no evidence the club had actual knowledge of the water on the floor. It further held that there was no evidence of constructive notice in that plaintiffs did not know how the snow covered cart came to be in the aisle, how long it had been there, how much snow was on it originally, how much had melted, or how long the puddle had been there. The court also noted that plaintiffs’ contention that the cart had been allowed to remain in the aisle long enough for enough snow to melt to cause a “two-foot-wide puddle to accumulate on the ground,” was an unsupported allegation which, even if true, failed to create a genuine issue of material fact as to defendant’s constructive knowledge of the hazard.
In a footnote, the court also referenced defendant’s motion to preclude plaintiff’s liability expert under Daubert denying it as moot but noting that “[t]o the extent that Plaintiffs argue that [Plaintiffs’] expert report creates a genuine issue of material fact as to constructive notice … Plaintiffs’ position is unpersuasive.”