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Flip Flop
by Ron Davis

A lack of evidence that a customer’s injury from a fall while at a New Jersey shopping center tenant’s store has resulted in a court judgment favoring the tenant.

The shopping center is Woodbridge Center Mall in Newark, and the tenant is a J.C. Penney store. The customer was a woman, and, at the time of her injury, she was accompanied by her two children and her mother. The woman wore shorts, a top, and “flip-flop” footwear.

As she was walking down an aisle, holding the hand of her younger child, she later said, she turned to her right to inspect a skirt on a hanger. She added she took the skirt from its rack, and then turned to show the selection to her mother.

Her mother apparently disapproved of the selection, and as the woman turned back to replace the skirt, she said, she “felt something under my foot” and fell backward.

Her mother helped her rise to her feet, but she said no Penney personnel were nearby to investigate the incident until about 10 minutes later. She added that when a Penney associate did investigate, he did not promptly summon other personnel to assist him.

When someone else from the Penney store did arrive at the scene and questioned her, she said she told him she “couldn’t explain what caused the fall.” She added, however, “There was something under my flip-flops.” But to the question, “Were your flip-flops wet,” she answered, “No.” And when asked, “Was there any sort of substance on your flip-flops,” again she answered, “No.”

Then to the question, “What do you believe caused you to fall,” she said she answered “I believe that it was one of the tags or it could have been a bottle cap. Maybe someone left a bottle cap on the floor. I really don’t know.” She acknowledged, however, that she did not find a tag or a bottle cap at the scene of her fall.

Penney loss-prevention personnel later pointed out that they spend approximately 20-percent of their time on the Penney sales floor, during which they inspect and look for hazards and if found, the hazards are removed. Moreover, the head of lost-prevention at the Woodbridge Center Penney store said the motto of the personnel there is, “If you see it [a hazard], fix it; it’s just the culture of the store.”

A U.S. District Court, in ruling in favor of Penney, explained, “Aside from speculation, there is no evidence in the record that a dangerous condition existed. The testimony was that the woman felt ‘something’ under her flip-flops which caused her to fall—perhaps a tag or a bottle cap—but she really didn’t know. In fact, the evidence in the record demonstrates that even her mother could not find any object or substance on the floor where she slipped, there was nothing on her flip-flops after she fell, and the incident report indicates that the floor was clear and dry….The mere showing of an incident causing the injury sued upon is not alone sufficient to authorize the finding of an incident of negligence. An inference of negligence can be drawn only from proven fact and cannot be based upon a foundation of pure conjecture, speculation, surmise or guess.”

(Jennings v J.C. Penney Corp., Inc. [Slip Copy, 2015 WL 5167029])

Decision: October 2015
Published: November 2015



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