Costello v. Target Corporate Services, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

VINCE COSTELLO, an infant under

the age of 14 years, by his mother

and natural guardian, VENUS Civ. No. 16-3314 (KM) (MAH)

COSTELLO, AND VENUS COSTELLO,

INDIVIDUALLY,

OPINION

Plaintiffs,

v.

TARGET CORPORATION I/P/A

TARGET CORPORATE SERVICES

INC. A/K/A TARGET,

Defendant.

KEVIN MCNULTY, U.S.D.J.:

In September 2015, a five-year old child, Vince Costello, went to a Target

store in New Jersey with his aunt, Liza Costello. After shopping, Vince and

Liza1 were waiting outside the store for a ride home when Vince began playing

on top of a red, spherical bollard located near the front of the store.

Unfortunately, after playing for some time on the bollard, Vince fell off and

injured his arm. In this lawsuit, Vince, through his guardian, asserts that

Target was negligent for placing the bollards, an allegedly dangerous condition

and attractive nuisance, outside the store.

Now pending before the Court is the motion for summary judgment filed

by the defendant Target Corporation i/p/a Target Corporate Services a/k/a

Target (“Target”). (DE 88) Target contends that plaintiffs’ claims should be

dismissed because there are no material facts in dispute concerning the

condition and nature of the bollards, which are not a dangerous condition.

1 Because three persons with the same surname are involved in this case, I will

refer to the child as “Vince” and his aunt as “Liza.” No disrespect is intended.

According to Target, the bollards violate no industry standard or code. Plaintiffs

have proffered no evidence that they are defective or that Target was otherwise

aware that they could cause an inherent risk of injury. Target also contends

that the doctrine of “attractive nuisance” does not apply here as that doctrine is

reserved for unsupervised infant trespassers; the duty of care owed, says

Target, is the more general one owed to a business invitee.

Plaintiffs submitted a brief in opposition to the motion. (DE 92) They

concede that the bollards do not violate any codes or standards. Rather, say

plaintiffs, the bollard in question was dangerous because it was attractive to

children who would view it as a large ball or plaything. As such, Target should

have known that children would be attracted to these “balls” and should have

taken better care to make these objects safer.

For the reasons explained herein, I will grant Target’s motion for

summary judgment.

I. Summary2

Target’s counsel submitted a statement of undisputed facts in

accordance with Federal Rule of Civil Procedure 56 and Local Rule of Civil

Procedure 56.1. Plaintiffs’ counsel failed to submit a responsive statement of

undisputed facts.3 Nor does plaintiffs’ opposition brief make any meaningful

2 Citations to the record will be abbreviated as follows. Citations to page numbers

refer to the page numbers assigned through the Electronic Court Filing system, unless

otherwise indicated:

“DE” = Docket entry number in this case.

“SOF” = Statement of undisputed facts filed by defendant Target (DE 88-4)

3 Local Rule 56.1 states in part, “[t]he opponent of summary judgment shall

furnish, with its opposition papers, a responsive statement of material facts,

addressing each paragraph of the movant’s statement, indicating agreement or

disagreement and, if not agreed, stating each material fact in dispute and citing to the

affidavits and other documents submitted in connection with the motion.”

Local Rule 56.1 further requires that “each statement of material facts shall be

a separate document (not part of a brief).” If a party fails to address the other party’s

properly supported assertion of fact, the court may consider “grant[ing] summary

judgment if the motion and supporting materials—including the facts considered

undisputed—show that the movant is entitled to it ....” Fed. R. Civ. P. 56(e). Local Civil

effort to respond to Target’s undisputed facts.4 Instead, the few well supported

facts cited in plaintiffs’ brief coincide with those proffered by Target and appear

to be undisputed.

A. The September 17, 2015 Incident

On September 17, 2015, Vince Costello was at the Target store located at

100 14th Street in Jersey City, New Jersey. (SOF ¶ 1) Vince Costello at the time

was 5 years old. (Id. ¶ 2) Vince was taken to the Target by his aunt Liza

Costello, who was caring for him that day. (Id. ¶ 3)

At approximately 7:52 pm on September 17 Target surveillance cameras

recorded Vince and his aunt leaving the store. (Id. ¶¶ 4, 6) Vince approaches a

large “red ball,” called a bollard, while Liza is seen taking a seat on a bench

near the bollards. (Id. ¶ 4–5) Target’s director of construction testified that

these bollards are visual cues to separate the sidewalk from traffic and act as a

barrier between pedestrians walking on the sidewalk and cars driving in the

road or parking lot. (Id. ¶ 4–5) He also stated that there had been no prior

Rule 56.1(a) deems a movant’s statement of material facts undisputed where a party

does not respond or file a counterstatement. L. Civ. R. 56(a). A failure to dispute a

party’s statement of material facts, however, “is not alone a sufficient basis for the

entry of a summary judgment.” See Anchorage Assocs. v. Virgin Islands Bd. of Tax

Review, 922 F.2d 168, 175 (3d Cir. 1990) (holding that even where a local rule

deeming unopposed motions to be conceded, the court was still required to analyze

the movant’s summary judgment motion under the standard prescribed by Fed. R.

Civ. P. 56(e)); see also Muskett v. Certegy Check Servs., Inc., Civ. No. 08-3975, 2010

WL 2710555 (D.N.J. July 6, 2010) (“In order to grant Defendant’s unopposed motion

for summary judgment, where, as here, ‘the moving party does not have the burden of

proof on the relevant issues,... the [Court] must determine that the deficiencies in

[Plaintiff’s] evidence designated in or in connection with the motion entitle the

[Defendants] to judgment as a matter of law.’” (quoting Anchorage Assocs., 922 F.2d at

175)).

4 Plaintiffs’ brief repeatedly makes statements that are seemingly meant to be

taken as “facts.” Plaintiffs’ counsel cites to noting in the record to support statements

such as “By defendant’s own words, there was no purpose for the red bollards other

than a visual cue. . . . they were merely an[] advertising symbol . . . and is totally

unnecessary as they were not in place or used prior to 2009”; “the defendant

conducted absolutely no tests as to the safety of the design”; “the defendant would like

the Court here to accept that the bollard was not an attractive nuisance to a child,

which it clearly is.” (See DE 92 ¶¶ 3–6) Such unsupported statements will be

disregarded.

accidents or lawsuits involving children or adults falling off, or being injured

by, the bollards. (DE 88-12 at 15)

From approximately 7:53 pm until 8:11 pm, Vince is seen in the video

climbing on and off one of the bollards. (Id. ¶¶6–15) At various points, he is

climbing onto one of the bollards, standing on it, lying across it, kneeling on it,

and jumping off of it. (Id.) For example, around 7:59 pm Vince jumps off the

bollard and briefly walks over to his aunt who is seated on a bench nearby, and

then returns to playing on the bollard. (Id. ¶¶ 7–8) AAround 8:07 pm, Vince

loses both of his shoes while sitting on the bollard; Liza walks over to retrieve

the shoes. (Id. ¶ 13) At approximately 8:09 pm, as Liza is returning Vince’s

shoes to him, a Target employee walks through the area. (Id. ¶ 12) Vince is

then seen putting his shoes back on and running back to the bollard, jumping

back onto it. He then stands on the bollard for approximately 80 seconds. (Id. ¶

14) Vince then crouches on the bollard, and, at approximately 8:11 pm, he falls

off. (Id. ¶ 14) Liza then walks over to Vince, picks him up, and brings him back

to the bench. (Id. ¶ 15)

Plaintiffs concede that “it is clear from the video that the infant plaintiff

climbed on and played with the bollard.” (See DE 92 at 9) A triable issue of fact

arises, according to the plaintiff, because the “video is silent and one cannot

know if in fact [Liza] is warning the infant plaintiff to stay off the bollard. . . one

simply cannot tell from the video the verbal interaction between the two

parties.” (Id.) Liza did testify, however. At her deposition, Liza confirmed that

she took Vince to Target. (See Ex. D., DE 88-10 (Liza Costello Deposition

transcript) p. 43–44) She testified that after shopping, they walked outside the

store and were waiting for a ride home. (Id. p. 53–54) She saw Vince approach

one of the balls and saw “him trying to climb on top of it. He was sitting down

and then he was just playing on it.” (Id. p. 60). At one point, Vince

demonstrated for her how he was pretending to “fly” on top of the bollard. (Id.

p. 79–80) She testified that she told Vince to stop climbing on the bollard

because she knew “he could fall” and knew that it could be dangerous for a

five-year-old to be on the bollard. (Id. p. 60, 65, 78–79) She also testified that

after she told Vince to come back towards her, she observed him hugging the

bollard. At that point she turned away for “15 seconds” to answer a phone call,

and then heard him screaming and running back to her at the bench. (Id. p.

61–63, 73–75) She testified that she did not actually see Vince on the bollard at

the time of the fall, but admitted that she had previously seen him playing on

the bollard. (Id. p. 73–74, 76)

B. Procedural History

On April 27, 2016, plaintiffs filed a complaint in the Supreme Court of

the State of New York, County of Kings. (DE 1) The complaint asserts three

causes of action: (1) negligence; (2) loss of consortium on behalf of Vince’s

mother, Venus Costello; and (3) a claim for medical expenses to the extent that

“losses suffered by plaintiff are not covered by the medpay insurance benefits.”

(DE 1-2 at 5)

Target was served with the complaint on May 11, 2016 (Id.) On May 27,

2016, Target removed this action to the U.S. District Court for the Eastern

District of New York based on diversity jurisdiction, 28 U.S.C. § 1332. (Id.)

On June 8, 2016, venue of this action was transferred to the District of

New Jersey, where it was assigned to me. (DE 7; DE 8) Discovery then

commenced. On February 14, 2018, Target filed a third party complaint (DE

42) asserting that any damages awarded in this action were due solely to the

negligent conduct of Liza Costello. Liza Costello did not respond to the third-

party complaint, and on July 6, 2018, the Clerk entered default against her.

(DE 53)

On April 2, 2019, the parties participated in a nonbinding arbitration

and an award was filed on April 11, 2019. (DE 78) Plaintiffs then requested a

trial de novo. (DE 80) Since then the parties completed discovery; expert

discovery was completed on September 10, 2019; and the parties were

authorized to file motions for summary judgment. (DE 85) On October 24,

2019, Target filed its motion for summary judgment. (DE 88)

C. Plaintiffs’ Expert

Plaintiffs retained Robert Sugarman, PhD, PE to provide an expert report

in this matter. (See DE 88-13 (Expert Report of Robert Sugarman)) Dr.

Sugarman holds a doctorate in experimental psychology. (DE 88-14 (Sugarman

Deposition Transcript) p. 17–19) Dr. Sugarman also holds a Bachelor of Arts

degree in physics; he has a certificate in engineering and is a licensed engineer

in California. (Id.) Dr. Sugarman is not a certified safety professional, but

considers himself a “human factors specialist.” (Id. p. 21–25) The Sugarman

report, 3 pages long, contains 11 numbered “opinions and conclusions to a

scientific certainty.” Its ultimate conclusion is as follows:

Based on my education in human factors psychology and decades

of experience in analyzing human behavior, resulting in being

elected to Fellow of the Human Factors and Ergonomics Society,

the conclusions enumerated above lead me to the opinion within a

scientific certainty, that the large, red balls decorating the entrance

to the Target store were an attraction to children, and specifically

to Vince Costello, as a large toy, with inherent slip and fall hazards

that are not immediately obvious to children or adults, and served

no purpose that warranted the risk to the public.

(DE 88-13 at 4)

Dr. Sugarman testified that his report opines on the layout of the

bollards, their location, and instructions or warnings in the area, the risk

involved in playing on the bollards and their general attractiveness as a

“plaything.” (DE 88-14 p. 53–56) He reviewed the testimony of defendant’s

expert and Liza Costello; however, Dr. Sugarman did not review the store’s

surveillance footage of the incident and did not visit the Target store in

question to perform any testing of the bollards. (Id. p. 56–58, 73–74) He

believed that Vince only hugged the bollard, was playing around it, and while

trying to get up on it, fell and injured himself. (Id. p. 109–111) Moreover, Dr.

Sugarman attributes no fault for the accident to Liza Costello and discredits

her testimony that she understood the bollard to be dangerous because, in his

opinion, defense counsel’s questioning of Liza somehow tricked her into

perceiving the bollards to be dangerous. (Id. p. 89–92) Instead, he attributes

100% of the fault to Target for placing these bollards outside the store because

“children play with toys” and “infants play with balls much more readily” than

alternative structures that Target could have used. (Id. p. 107–108) Dr.

Sugarman concedes that the bollards did not violate any established code or

standard. (Id. p. 113) Nevertheless, these bollards were “appearing as large red

balls, were attractive to children and . . . presented a hazard for children. They

could have been replaced by alternative designs that would be less attractive to

children and would not pose a hazard to children.” (DE 88-13 at 3)5

Dr. Sugarman conceded at his deposition that if a child was jumping up

and down on the red bollard, a guardian would have to know that such acts

would be dangerous and that no additional warning from Target would be

necessary. (DE 88-14 p. 111–112)6 Moreover, he agreed that there was nothing

5 Dr. Sugarman submits an “expert affidavit in opposition” to the motion for

summary judgment filed by Target. (DE 92 at 15–17). The affidavit fails to refer to any

specific testimony or documents in the record and instead offers conclusions and

opinions. This affidavit does not comply with Rule 56 or 56.1 and no weight will be

given to it, see supra, n. 2. “As with all other evidence submitted on a motion for

summary judgment, expert affidavits must be reviewed in light of Fed. R. Civ. P. 56.”

Gower v. Savage Arms, Inc., 166 F. Supp. 2d 240, 252 (E.D. Pa. 2001) (“Where an

expert presents ‘nothing but conclusions—no facts, no hint of an inferential process,

no discussion of hypotheses considered and rejected’, such testimony will be

insufficient to defeat a motion for summary judgment.” (citing Hayes v. Douglas

Dynamics, Inc., 8 F.3d 88 (1st Cir. 1993))). Consequently, the expert affidavit does not

satisfy the requirements of Federal Rule of Civil Procedure 56(c)(4), which requires

that “[a]n affidavit or declaration used to support or oppose a motion must be made on

personal knowledge, set out facts that would be admissible in evidence.” Fed. R. Civ.

P. 56(c)(4).

6 The exchange went like so:

Q. Hypothetically, if a child is jumping up and down on the sphere,

would you consider that dangerous?

A. Yes.

Q. Is that something that a guardian or an adult should recognize as

dangerous?

A. If the kid can jump up and stand on it, yes, a kid of his age, that

would be considered dangerous.

Q. And no warning signs would be needed for that if that occurred

because an adult or guardian would have to know that would be

dangerous, correct?

inherently wrong with having a red ball outside the store, such as the bollards

here, if a guardian kept a child off the ball. (Id. p. 113–114)

II. Discussion

A. Legal standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion

for summary judgment, a court must construe all facts and inferences in the

light most favorable to the nonmoving party. See Boyle v. Cnty. of Allegheny

Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Delaware River

Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)). The moving party

bears the burden of establishing that no genuine issue of material fact

remains. See Celotex, 477 U.S. at 322-23. “[W]ith respect to an issue on which

the nonmoving party bears the burden of proof . . . the burden on the moving

party may be discharged by ‘showing’ — that is, pointing out to the district

court — that there is an absence of evidence to support the nonmoving party’s

case.” Id. at 325.

Once the moving party has met that threshold burden, the non-moving

party “must do more than simply show that there is some metaphysical doubt

as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The opposing party

must present actual evidence that creates a genuine issue as to a material fact

for trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth

types of evidence on which nonmoving party must rely to support its assertion

that genuine issues of material fact exist).

A. Correct.

(DE 88-14 p. 111–112)

Unsupported allegations, subjective beliefs, or argument alone, however,

cannot forestall summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S.

871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1988) (nonmoving party may not

successfully oppose summary judgment motion by simply replacing

“conclusory allegations of the complaint or answer with conclusory allegations

of an affidavit.”); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138

(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact

if it has provided sufficient evidence to allow a jury to find in its favor at trial.”).

Thus, if the nonmoving party fails “to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial . . . there can be ‘no genuine issue of

material fact,’ since a complete failure of proof concerning an essential element

of the nonmoving party’s case necessarily renders all other facts immaterial.”

Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,

477 U.S. at 322-23).

Moreover, the “mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.”

Anderson, 477 U.S. at 247-48. A fact is only “material” for purposes of a

summary judgment motion if a dispute over that fact “might affect the outcome

of the suit under the governing law.” Id. at 248. A dispute about a material fact

is “genuine” if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

B. Analysis

Plaintiffs’ claims are founded on a negligence theory of liability.

Therefore, plaintiffs must prove: (1) the defendant owed plaintiff a duty; (2)

there was a breach of that duty; and (3) the breach proximately caused the

injury. Keith v. Truck Stops Corp. of Am., 909 F.2d 743, 745 (3d Cir. 1990).

Failure to establish any one of these elements is grounds for summary

judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986) (“In our view, the plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.”).

i. Target Owed Plaintiffs a Duty of Care

The question of whether a duty exists is a matter of law properly decided

by the Court. Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 529,

538 A.2d 346 (1988). Determination of the existence of a duty “is largely a

question of fairness or policy.” Id. “The inquiry involves a weighing of the

relationship of the parties, the nature of the risk, and the public interest in the

proposed solution.” Kelly v. Gwinnell, 96 N.J. 538, 544, 476 A.2d 1219 (1984).

The plaintiffs claim that there is an issue of material fact concerning the

level of duty owed to Vince. That issue depends on whether Vince would be

classified as a business invitee or an infant-trespasser, as to whom the bollard

could have been an “attractive nuisance.” Plaintiffs theorize that Vince should

be treated as a child trespasser because he was only five and could not have

fully comprehended the danger.

On any version of the facts, the attractive nuisance doctrine does not

apply here:

The doctrine of attractive nuisance is applicable to “children.”

Restatement (Second) of Torts: Condition and Use Of Land § 339.

Under certain conditions, it subjects a landowner to liability for

physical harm that befalls a child whose trespass was “caused by

an artificial condition upon the land.” Ibid. Those conditions

include, among others, that “the children because of their youth do

not discover the condition or realize the risk involved in

intermeddling with it or in coming within the area made dangerous

by it.” Restatement (Second) of Torts: Condition and Use Of Land §

339(c). The doctrine applies “the infant-trespasser” exception to the

general principle that a landowner owes “slight” duty to a

trespasser. McColley by McColley v. Edison Corp. Ctr., 303 N.J.

Super. 420, 426–27 (App.Div.1997). It is predicated, in part, on the

recognition that parents cannot always be with their children.

Strang v. S. Jersey Broadcasting Co., 9 N.J. 38, 45–46 (1952).

Edmond v. Brosius, No. A-6244-06T3, 2009 WL 1576747, at *12 (N.J. Super.

Ct. App. Div. June 8, 2009). Notably, however, “The child trespasser exception,

also known as the attractive nuisance doctrine, is limited to instances in which

children unlawfully enter or remain on land.” Estate of Zimmerman v. Se.

Pennsylvania Transp. Auth., 168 F.3d 680, 687–88 (3d Cir. 1999).

The record is clear that Vince was neither unsupervised nor a trespasser

on Target’s premises. Vince was at a Target store, a retail business open to the

public, during business hours. He was accompanied by an adult, Liza Costello,

who admitted to being entrusted with his care that day. (See 88-10 (Liza

Costello Deposition) p. 79) The attractive nuisance doctrine does not apply.

That is not to say that Target did not owe a duty of care. That duty of

care, however, was the more general duty of care to business invitees, who

foreseeably would be accompanied by children.7 The common law imposes a

duty of care on business owners to maintain safe premises for their customers.

See Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003); Kuzmicz v. Ivy

Hill Park Apartments, Inc., 147 N.J. 510, 517 (1997). Under New Jersey law,

“[b]usiness owners owe to invitees a duty of reasonable or due care to provide a

safe environment for doing that which is in the scope of the invitation.”

Nisivoccia, 175 N.J. at 563. This duty arises out of the fact that business

owners “are in the best position to control the risk of harm. Ownership or

control of the premises, for example, enables a party to prevent the harm.”

Kuzmicz, 147 N.J. at 517. That standard of care encompasses a duty “to guard

against any dangerous conditions on [the] property that the owner either

knows about or should have discovered[,] ... [and] to conduct a reasonable

inspection to discover latent dangerous conditions.” Hopkins v. Fox & Lazo

Realtors, 132 N.J. 426, 434 (1993) (citations omitted).

7 Much of the expert testimony regarding the bollard’s attractiveness as a

plaything seems to be directed to the inapplicable “attractive nuisance” standard. One

is tempted to observe that a five-year-old child knows if the nuisance is attractive or

not, without the benefit of an advanced degree. Still, the issue is moot, given that the

doctrine is inapplicable as a matter of law.

Target, then, is not liable as the maintainer of an attractive nuisance, but

did owe a business-invitee duty of care to its customers. I next consider

whether Target breached that duty.

ii. Breach of the Duty of Care

Plaintiffs assert that there are material facts in dispute as to whether

Target breached its duty of care by failing to establish a safe place and by

allowing the bollard to be installed without conducting any safety testing. (DE

92 at 6–7) Plaintiffs also point out that Target, while it videotaped the events,

did not intervene or warn Vince or his aunt. (Id. at 8) Defendants respond that

there is no evidence of a dangerous condition on the property. (DE 88-5 at 9)

Target had no advance warning that the bollards were dangerous, and there

had been no prior similar accidents. (Id. at 10–11). The expert testimony, it

says, is highly flawed and does not establish a breach. (Id. at 11–13) And, as

Plaintiffs concede, there was no design flaw or defect in the bollard itself. (Id. at

9–10, 12)

“Ordinarily an injured plaintiff asserting a breach of [a duty to a business

invitee] must prove, as an element of the cause of action, that the defendant

had actual or constructive knowledge of the dangerous condition that caused

the accident.” Nisivoccia, 175 N.J. at 818. A defendant has constructive notice

when the condition existed “for such a length of time as reasonably to have

resulted in knowledge and correction had the defendant been reasonably

diligent.” Parmenter v. Jarvis Drug Stores, Inc., 48 N.J.Super. 507, 510, 138

A.2d 548 (App.Div.1957).

A dangerous condition is found when there is some physical defect

in the property. See, e.g., Atalese v. Long Beach Twp., 365 N.J.

Super. 1, 5 (App. Div. 2003) (finding dangerous condition in

uneven sidewalk); Daniel v. State Dept. of Transp., 239 N.J. Super.

563, 589-590 (App. Div. 1990). . . Reasonable use or misuse of

property cannot create a dangerous condition without a physical

defect in the property itself. See, e.g., Levin, 133 N.J. at 49-50.

Aybar v. Borough of Carteret, No. A-0317-17T3, 2019 WL 272481, at *2 (N.J.

Super. Ct. App. Div. Jan. 22, 2019); see also Longo v. Aprile, 374 N.J. Super.

469, 474–75 (N.J. Sup. Ct. App. Div. 2004) (“[A] dangerous condition of

property may be found to exist when an unreasonable risk of harm is created

by the combination of a defect in the property itself and the acts of third

parties.” (citation omitted)).

Here, there is no evidence that the bollard was improperly installed, that

it had a defect, that it was dangerously slippery, or that it was defectively

designed. Nor is there a contention that it violated any codes or standards.

True, it was spherical, but everything has to have some shape, and there is no

evidence that this shape was more dangerous than, say, a cube or some sort of

stanchion.8 Plaintiffs do not really dispute any of this.

Nor is there any evidence that Target had either constructive or actual

knowledge that the bollard posed an unacceptable danger. Any object, of

course, may be involved in causing an injury. There is no evidence, however, of

any accident resulting from any individual’s being on one of these bollards.9

When a Target employee was surveying the area, Vince was not on the bollard.

If a Target employee had been monitoring the surveillance footage in real time,

which was not shown, that employee would have seen Vince successfully

playing on the bollard for the better part of 20 minutes while an adult

repeatedly interacted with him. Under these circumstances, I do not find that

the bollard in and of itself was a dangerous condition or that Target had notice

of any such risk.

Plaintiffs rely substantially on Dr. Sugarman’s contentions that children

by their very nature are attracted to objects that resemble toys, such as these

bollards, which resemble red balls. But “assumptions about [a] child’s behavior

8 It is worth noting that the bollard is itself a safety device; it is a barrier designed

to separate pedestrians from moving cars in the street or parking lot.

9 Such round bollards, suggestive of Target’s trademark, are a common feature of

Target stores. A brief Westlaw survey revealed no case, federal or state, claiming injury

from one of these bollards at any of the chain’s many stores. Oddly, there was a case

in this district of property damage resulting from a pickup truck’s crashing into a

bollard, which then rolled into a car. Grady v. Target Store #2381, 2019 WL 2024507

(D.N.J., May 08, 2019 (ruling on discovery dispute).

and society’s general understanding about how children behave in general [do]

not establish that [a] defendant was negligent.” Struck v. Taubman Co., LLC, No.

A-4925-14T1, 2016 WL 7102732, at *4 (N.J. Super. Ct. App. Div. Dec. 6, 2016).

In Struck, for example, a father was waiting with his two children at a mall

when his two-year-old daughter walked over to investigate her reflection in an

elevator door. Id. at *1. The father cautioned his daughter to be careful of the

elevator doors. Id. Regrettably, as she placed her hand on the door, the elevator

door opened and her fingers got pinched, causing the father to pull the doors

back open and himself suffering injury as a result. Id. On summary judgment,

the district court dismissed plaintiffs’ negligence claims against the elevator

company, and the appellate court affirmed. Id. at *2–*4. The court rejected

plaintiffs’ argument “that the propensities of small children, ... [are] something

that is widely known and therefore, it is reasonable to expect those persons,

who owe children a duty, to both anticipate and guard against the dangers

associated with the propensity.” Id. at *3. Moreover the court rejected the

“contention that [defendant] breached its duty to maintain a safe place for

patrons, young or old, by maintaining elevators that were in good working

order, but which had reflective doors. There is no evidence in the record that

this mirror-like surface was unsafe or dangerous, such as notice that others

were injured as a result of its reflective nature.” Id. at *4. The same is true

here. There is no evidence to support a finding that Target was negligent simply

by installing red bollards, which were properly maintained, but which might

appeal to children because of their shape and color.

No one could fail to sympathize with an injured child. However, it cannot

be said that this injury arose from an inherently dangerous condition that

created an unreasonable risk of harm. The danger, to the extent not actually

created by the plaintiffs’ actions, was surely obvious to them: “[U]nder the

circumstances, the danger that [Vince] encountered was self-evident and,

therefore, not actionable.” Longo, 374 N.J. Super. at 474.

In Longo, for example, a man was power washing his neighbor’s roof but

suffered a fall. Defendants in that action did not supervise or participate in the

plaintiff/helpful neighbor’s power washing. The neighbor sued defendants

asserting negligence over the condition of the roof. On summary judgment, the

court dismissed the action, finding “Nowhere in this record is there any

evidence that the drip ledge was improperly installed or maintained, defectively

designed, or hidden from view. Instead, as we have previously pointed out, the

danger was self-evident. Simply put, there is nothing to establish that the drip

ledge or the roof as it existed on the day in question qualified as a danger

posing an unreasonable risk of harm to Ronald.” Longo,374 N.J. Super. at 475.

Accordingly, Longo holds that where a danger is obvious or self-evident, there

generally is no need to warn. See also Tighe v. Peterson, 175 N.J. 240, 242 (N.J.

2002) (finding no duty to warn plaintiff who frequented the pool of danger of

diving in the shallow end of the swimming pool).

Although “Longo involved the duty that a social host owes to a guest, the

principles set forth in those cases also apply to determining whether, under the

circumstances presented, a business owner owes a duty to warn a patron of a

dangerous condition that is open and obvious.” Jimenez v. Applebee's

Neighborhood Grill & Bar, No. A-2247-13T2, 2015 WL 893236, at *4 (N.J.

Super. Ct. App. Div. Mar. 4, 2015). The danger of falling from a roof is obvious.

“[T]he obviousness of the danger is an absolute defense to plaintiff's failure to

warn action in this case. N.J.S.A. 2A:58C–3a(2), –4. . . As noted in the

Restatement (Third) of Torts: Products Liability § 2 comment j, warnings would

lose their efficacy and meaning if they were placed on every instrument known

to be dangerous, such as a knife, scissor, glass, bat, ball, bicycle, or other

product that poses a generally-known risk of injury if misused, dropped, or

fallen from.” Mathews v. Univ. Loft Co., 387 N.J. Super. 349, 362–63, 903 A.2d

1120, 1128–29 (App. Div. 2006).

Plaintiffs’ claims here fail for obviousness. A sphere is not flat; cement is

not soft; children climb on things, particularly if permitted to do so by

caregivers. The danger of falling should be obvious, perhaps even to a child,

but certainly to the adult caring for him. As Liza admitted during her

deposition, and as shown in the video surveillance, she watched and interacted

with Vince as he played on the bollard. (See DE 88-10 (Liza Costello deposition)

p. 60, 65, 78–80; DE 88-11 (Store Video)) She says she told him to get off

because “he could fall.” Id. p. 60, 65, 78–79) Assuming that to be true (the

video has no sound), the video shows no effort to prevent Vince from playing on

the bollard; indeed Liza acquiesced in his returning to the bollard after putting

his shoes back on him, and he continued to play there as she sat on a bench

nearby. Thus, “even if the conditions noted could be considered dangerous, no

reasonable fact finder could conclude that [plaintiff] was unaware of those

conditions.” Endre v. Arnold, 300 N.J. Super. 136, 143 (App. Div.), certif.

denied, 150 N.J. 27 (1997); see also Longo, supra.10

Accordingly, I find that Plaintiffs have failed to establish that Target

breached a duty to exercise reasonable care and summary judgment is granted

in favor of Target on Count 1. It follows that Plaintiffs’ remaining claims must

also be dismissed. Count 2, for loss of consortium, is “derivative of [plaintiff’s]

personal injury claims and is therefore not viable without those claims.”

Calender v. NVR Inc., 548 F. App’x 761, 764 (3d Cir. 2013). Count 3 is not a

cause of action, but rather a demand for uncompensated medical expenses,

and is likewise dependent on a finding of liability on Count 1. (See DE 1-2 at

5). Count 3 is therefore also dismissed.

10 Even Plaintiffs’ expert, Dr. Sugarman, concedes that no warning is needed

where a guardian was aware that a child was, e.g., jumping up and down on a red

bollard. In such an instance, Dr. Sugarman agreed that no warning from Target would

be necessary. (DE 88-14 p. 111–112)

III. Conclusion

For the reasons set forth above, Target’s motion for summary judgment

(DE 88) is granted.

An appropriate order follows.

Dated: April 14, 2020

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge