The plaintiff brought suit against Home Depot, alleging that she was injured by a large piece of melamine that fell from the shelf onto the floor, striking her left foot.
In granting summary judgment as to a mode of operation portion of the Complaint, the court holds that the mode of operation rule does not apply. “Notwithstanding the allegations of her Complaint, the plaintiff’s own testimony indicates there is no evidence that the items were placed on the shelves in ways that were inherently hazardous or that the manner in which other customers handled these items created a readily foreseeable and hazardous condition. Put differently, there was nothing about the manner in which the defendant allowed customers to handle or access the melamine items on its shelves which creates an inherent danger or a foreseeable risk of a regularly occurring hazardous condition. This court concludes that the plaintiff has failed to offer any evidence supporting her theory that the mode of operation rule should apply here and thus grants the defendant’s motion for summary judgment as to Count Two.”
With regard to the traditional premises liability claim, the court denied summary judgment, finding that an issue of fact existed with regard to constructive notice as to the duty to warn and protect customers from handling heavy merchandise. The court stated that the evidence before it demonstrated that the defendant did not adhere to its own policy in assisting store customers upon request. The plaintiff claimed that upon entering the store, she asked the greeter to point the plaintiff to the melamine aisle and to send a store associate to that area to assist.
Phan v. Home Depot USA, Inc., CV13-6042539, 2016 WL 1657207 (04/05/16)