Thursday, February 9, 2023

Issue of an Alleged Open and Obvious Danger in a Premises Liability Case Allowed to Proceed to Jury

In the case of Pusateri v. Wal-Mart East, LP, No. 21-1137 (W.D. Pa. Dec. 20, 2022 Kelly, M.J.), the court denied a Defendant store’s Motion for Summary Judgment in a trip and fall case.

According to the Opinion, the Plaintiff was shopping in a Wal-Mart store during which the Plaintiff walked four (4) times passed a partially empty black pallet that held large screen televisions. The Plaintiff alleged that she did not remember the presence of the pallet during each pass, but conceded that nothing blocked her view of the pallet.

After her fourth pass, a store employee entered the aisle with a top stock shopping cart that was loaded.

In order to avoid the stock cart and permit it to pass, the Plaintiff backed up and tripped on the base of the protruding pallet that was behind her. The Plaintiff alleged injuries as a result.

The Federal Magistrate Judge that decided this case noted that, while a store owner owes no duty to invitees for an obvious danger that is avoidable by the exercise of ordinary care, the court found that the issue of whether the hazard in question was open and obvious is a question for the jury. In this case, the court also noted that the Plaintiff may have been distracted by the Defendant employee’s actions.

Given the issues of fact presented, the court denied the Motion for Summary Judgment.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

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