Seitz v. J. C. Penney Props., Inc.

RALPH SEITZ, Plaintiff, v. J. C. PENNEY PROPERTIES, INC.;

J. C. PENNEY CORPORATION, INC. Defendants/Third-Party Plaintiffs, v. FOLSOM CONSTRUCTION LLC Third Party Defendant.

CASE NO. 3:15-cv-01131 (VAB)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

September 28, 2017

RULING ON DEFENDANT J. C. PENNEY'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S COMPLAINT

Ralph Seitz ("Plaintiff") brings this action against J. C. Penney Properties, Inc. and J. C. Penney Corporation, Inc. (collectively, "J. C. Penney"), alleging that J. C. Penney's negligence in maintaining a parking lot on its shipping facility in Manchester, Connecticut caused him to slip, fall, and sustain severe, painful, and permanent injuries. J. C. Penney has moved for summary judgment, alleging that it had no duty to Mr. Seitz at the time of his fall because a winter storm was ongoing. See J. C. Penney Mot. Summ. J., ECF No. 44.

For the reasons that follow, the motion is DENIED.

I. Factual Background

J. C. Penney owns and maintains the Manchester Logistics Center ("the facility") in Manchester, Connecticut. J. C. Penney's Local Rule 56(a)(1) Stmt. ("J.C. Penney Stmt."), ECF No. 48, ¶ 1. At the facility, tractor-trailer trucks bring shipments of goods in and out of the Facility's warehouses and docks. Id. at ¶¶ 2-3.

In February 2014, Mr. Seitz worked for Schneider National, Inc., an independent contractor that provided trucking services to and from the Facility. Id. at ¶ 7. On February 18, 2014, during a winter storm, Mr. Seitz drove from his home in upstate New York to the Facility. Id. at ¶¶ 8-11. He planned to pick up a shipment of goods that he would take to various locations in New York. Id. at ¶ 17. At approximately 8:00 a.m. on February 18, after overnight temperatures had dipped as low as eight degrees Fahrenheit, snow began to fall in Manchester. Id. at ¶¶ 10. Mr. Seitz estimated that there was "probably an inch of snow on the ground" when he arrived in Connecticut, but that the snow "wasn't coming down real hard." Seitz Dep., Ex. 2 to J.C. Penney Stmt., ECF No. 48-2, 7:15-20.

Mr. Seitz arrived at the Facility at approximately 10:00 a.m. J.C. Penney Stmt. at ¶ 15. He learned from Schneider's office at the Facility that the shipment was not ready, id. at ¶ 18, and decided to have lunch while he waited, id. at ¶ 19. He left his truck to walk to a nearby restaurant. Id. at ¶ 20. After Mr. Seitz walked "25, 30 feet from the truck," his "feet just kicked out from under him." Seitz Dep. 140:4-5; see also id. at 149:1-7 ("Actually, my right leg kicked out and I just went flying, and I just landed hard on my left side."). Mr. Seitz stated that "when I landed, I thought I landed on pavement, and I - when I got up, I saw it was ice and not pavement." Id. at 140: 4-7.

He believed that he slipped on ice, and not snow, because "he didn't figure snow would be that slippery." Id. at 140:12-13. He agreed, however, that he never saw the ice that he slipped on and "wouldn't be able to describe what that ice was like." Id. at 140:12-20; but see id. at 149: 1-7 ("[W]hen my body landed, for the area that I cleared out with my body with the snow, it was ice underneath me."). After falling, Mr. Seitz lost consciousness for "a split second," felt dizzy, and "saw stars." Seitz Dep., 50:12-18. Afterwards, he returned to his truck and eventually fellasleep in the bunk of the truck. J.C. Penney Stmt. ¶¶ 22-24. When he woke up several hours later, he was unable to move his truck because of the snow that had accumulated. Id.

Mr. Seitz visited three medical providers after the accident and told all of them that he had sustained injuries after slipping on ice. Pl.'s Stmt. Disp. Facts, ¶¶ 2-4; see also Exs. 2-4 to Serrano Decl., Ex. 1 to Pl.'s L.R. 56(a) Stmt., ECF No. 52-3 (report of Brittany Hausman, PA); 52-4 (report of John Cambareri, MD), 52-5 (initial evaluation report from Matthew Brown, PT). Mr. Seitz had visited the Facility several days before his accident. Seitz Dep., 20:12-24.¹ He stated that he did not "recall" the weather conditions on that date. Id.

J.C. Penney submitted a report from Robert B. Cox, a meteorologist, as an exhibit to its motion for summary judgment. See Decl. of Robert Cox, Ex. 6 to Def.'s L.R. 56(a) Stmt., ECF No. 48-6 ("Cox Decl."). In his report, Mr. Cox summarized the weather conditions and accumulated precipitation during the week of Mr. Seitz's accident. Id. at p. 4-5. Mr. Cox concluded that snow began falling in Manchester during the predawn hours of February 13, 2014 [and] continued beyond midnight (the start of February 14th) and fell mainly in the form of snow after about 2:30 a.m.-3:00 a.m. on the 14th, [resulting in t]otal snow accumulation in Manchester [of] about 9.0"-10.0"." Cox Letter, Ex. 6 to Def.'s L.R. 56(a) Stmt., ECF No. 48-6, 4-5. Folsom Construction, a contractor for J.C. Penney and third-party Defendant in this case, submitted invoices to J.C. Penney indicating that it had cleared snow and spread salt at the premises from 5. a.m. until 12 noon on February 13th. Invoice No. 28123, Ex. 12 to Def.'s L.R. 56(a) Stmt. ECF No. 48-12.

Snow began to fall again during the afternoon of February 15, and an inch of snow had accumulated before the snowfall "tapered off" by 11:00 p.m. Cox Letter, p. 4. Folsom Construction performed snow plowing and salting services after that accumulation, between 3:00 a.m. and 9:00 a.m. on February 16th. Id. No snow fell on February 17th, when the high temperature reached 32 degrees. Id. Mr. Cox estimated that "snow depth on untreated, undisturbed ground surfaces was about 15.0"-16.0" on February 17th." Id. During the night of February 17th, the temperature dropped to six degrees. Id. Snow began falling again between 8 a.m. and 3:30 p.m. on February 18th, resulting in two to two and a half inches of additional accumulation. Id.

In 2011, J.C. Penney entered into a contract with Folsom "to perform snow removal and salting" at the Facility. J.C. Penney Stmt., ¶ 5; see also Contract, Ex. 5 to J.C. Penney Stmt., ECF No. 48-5. Laura Briggs, who was the Office Manager for Folsom from 2006 until it closed for business in December 2014, explained that when Folsom was required to do work at a location, "the foreman on-site . . . would insure that it was done." Briggs Dep., Ex. 3 to J.C. Penney's Stmt., ECF No. 48-3, 100: 2-6. The foreman would not produce a report of the work that was completed. Id. at 100:11-12. Ms. Briggs also stated that she had no way to determine, from the documents in her possession, "whether snow was removed from any particular lot" or whether a particular lot was salted on a particular day. Id. at 100:13-21.

J.C. Penney's Contract with Folsom provided that Folsom would apply "the appropriate ice melt product . . . based on current and forecasted conditions." Contract, 4.2. It added that

Generally, pure salt is considered effective down to 20 degrees. Ice melt products formulated to be effective in temperatures below 20 degrees, such as magnesium chloride, will be applied to maintain safe driving and walking conditions as needed.

Id. Despite this contractual language, Ms. Briggs stated that Folsom used "straight salt" at the Facility during the 2013/2014 season. Briggs Dep. 48:3-5. Ms. Briggs stated that she did not "believe . . . that [Folsom] purchased treated salt" for J.C. Penney and that the decision to purchase treated salt would have been made by J.C. Penney. Id. at 48:5. In the five days before Mr. Seitz's fall, Folsom billed J. C. Penney for four "hoppers" of "complete salting applications," on February 13th, 14th, and 16th. See Invoice No. 28123, Ex. 12 to J. C. Penney Stmt., ECF No. 48-6. According to Ms. Briggs, based on the price Folsom charged, these "hoppers" would have contained "pure," rather than treated, salt. Briggs Dep. 47:13-24 ("Q: And you're able to discern from that invoice that this was a treated salt application?/ A No, it was not./ Q So, it's the cheaper of the two applications?/ A Yes. Q And taking your attention back to the contract provision that we just looked at the note saying 'using straight salt or treated salt would be based on the temperature forecast.' What was your understanding, if any, about how the temperature forecast affected whether straight salt or treated salt was used?/ A I don't believe in the 2013/2014 season that we purchased treated salt and that would have been a decision by J.C. Penney.").

Ms. Briggs also stated that J.C. Penney specified that Folsom only use salt, rather than sand, at the Facility. Briggs Dep., 101:15-22. By contrast, Folsom used sand to treat the surfaces at the facilities of its other customers in Manchester, Connecticut. Id. at 101:1-14. Generally, Folsom would apply salt to a location, even if it was not snowing, "because of freezing temperatures," since "residual snow melt that thaws during the day[] freezes back up at night." Id. at 102: 23-24.

In February 2014, Robert Gardner served as J.C. Penney's "Maintenance Senior Manger" at the Facility. Gardner Dep., Ex. 1 to J.C. Penney Stmt., ECF No. 48-1. At the time ofthe incident, Mr. Gardner was "responsible for the [F]acility and the grounds" and managed a "crew of maintenance workers." Id. at 7:1-11. J.C. Penney asked Mr. Gardner and his team to "inspect[] the entire property" at various points, although they did not make "routine inspections." Id. at 21:13-18. Mr. Gardner stated that J.C. Penney employees did not keep "any log . . . regarding the parking lot inspections" or the "snow treatment or ice treatment or clearing work" in the Facility. Id. at 22: 16-24.

Mr. Gardner also explained that "[t]he typical method of snow removal [wa]s to push the snow into a pile over to one side [of the Facility] or the other." Id. at 64:15-16. The "piles could be removed if they become large enough that they were creating a problem," but Mr. Gardner did not recall moving snow piles from the facility in February 2014, meaning "the piles weren't big enough that they...