LUDWIG v. MICHAELS ARTS & CRAFTS STORE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JEANNE LUDWIG,

Civ. No. 18-10306 (KM) (SCM)

Plaintiff,

OPINION

v.

MICHAELS ARTS & CRAFTS STORE,

JOHN DOES 1-10,

AND

XYZ CORPORATIONS 1-10

Defendants.

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

Before the Court is the motion of defendant Michaels Stores, Inc.1 for

summary judgment dismissing plaintiff Jeanne Ludwig’s negligence complaint.

For the reasons explained in this opinion, I will grant defendant’s motion to the

extent it requests the Court to dismiss the action based on plaintiff’s failure to

raise a genuine issue of material fact for trial as to the essential element of

causation.

I. Summary2

a. Factual Background

On October 12, 2017 Ludwig was shopping at the Michaels store in

Bridgewater, New Jersey, when she tripped and fell over the base of a railing

while backing up inside a shopping cart corral inside the store. (DE 25-1 at 6;

1 Incorrectly pled as Michaels Arts & Craft Store.

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.

DE 27 at 7) Prior to the accident, Ludwig was looking for orange lights to

display on her windowsill. (DE 25-3 at 4) After looking for the lights for about

fifteen minutes, Ludwig proceeded to the cashier section and asked a cashier

where she could find the lights. (DE 25-3 at 5) A worker instructed Ludwig that

the lights were located “over to the left on the other side of the store.” (DE 25-3

at 5) Ludwig testified, “I went past the rest of the cashiers up an aisle where I

thought was an aisle but I got up there and I couldn’t go any further. It was

blocked by carts.” (DE 25-3 at 6) She then “took at least three steps” before she

was stopped by the carts. (DE 25-3 at 6) She testified that she did not see the

carts as she entered what appeared to be an aisle, and that she would not have

gone in there if she had seen them. (DE 25-3 at 6). To her, “[i]t looked like a

regular aisle.” (DE 25-3 at 5) In fact, however, it was a corral for storage of

shopping carts. Ludwig asserted that she does not have vision problems and

that she was not distracted in any way as she entered the aisle. (DE 25-3 at 6)

She also asserted that she walked backwards to retrace her steps “[b]ecause

the shopping cart wouldn’t turn around in that area.” (DE 25-3 at 7)

As Ludwig backed up three steps and looked over her right shoulder, her

left “foot hit the base [of the railing] and [she] went down.” (DE 25-3 at 7-8)

Ludwig could not recall on which base she tripped. (DE 25-3 at 8) She thought,

however, that it was the last base before the end of the area. (De 25-3 at 8)

While Ludwig was aware of the railings, she was not aware there was a base to

the railings. (DE 25-3 at 8-9) Originally, she thought the base “had gone into

the floor.” (DE 25-3 at 9) Ludwig was certain that her foot hit the base, as

opposed to the railing, but she was not sure which part of the base. (DE 25-2

at 9) Ms. Ludwig testified that there was nothing “else on the floor in terms of

debris.” (DE 25-3 at 9) As a result of the accident, Ms. Ludwig sustained a

fractured hip and a displaced left femoral neck fracture. (DE 25-4 at 3) Prior to

this incident, Ludwig had visited the Bridgewater store about fifty times. (DE

25-3 at 3)

The assistant store manager at the time of the incident, Shanae Banks,

also testified in a deposition. (DE 27-3 at 3) She stated that she could not recall

if there were any signs to indicate to patrons that they should stay out of the

corral area unless they were retuning a cart. (DE 27-3 at 5) Banks testified

that, generally, it is not intended for customers to walk through the cart corral

area. (DE 27-3 at 13) There is a “sign holder” for the store’s ads which blocks

customers from traversing the corral. (DE 27-3 at 13) There is also a fixture

behind the sign, where the store “keep[s] overstock candy and stuff.” (DE 27-3

at 13) She further testified that it would be “possible” for a customer to walk

through the corral if it were empty. (DE 27-3 at 13) Banks herself never noticed

that the base of the cart corral’s railing is higher than the floor. (DE 27-3 at 14)

She also testified that she did not observe the accident. (DE 27-3 at 9)

The store manager, Brianne Melin, was not on duty when the incident

occurred. (DE 27-4 at 2, 4) Melin testified that there are normally carts located

in the corral, but on busier days the area may become empty. (DE 27-4 at 6) If

there were no carts, one could walk through the area. (DE 27-4 at 6) However,

it is not intended for customers to use the corral as a thoroughfare because

there are “typically carts there.” (DE 27-4 at 6) She could not “recall any other

incidents of customers falling in the store.” (DE 27-4 at 9)

Plaintiff’s expert, Wayne F. Nolte PH.D., P.E., conducted an evaluation of

Ludwig’s accident. (DE 25-6 at 4) In his report, Nolte described the cart corral.

The area contains two raised rails between which carts are lined. The rails are

steel tubes one and a half inches by one and a half inches. (DE 26-8 at 8) The

rails “are elevated twenty-five inches (25”) above the floor and run a length of

twelve feet seven inches.” (DE 25-6 at 8-9) The distance between them is four

feet four inches. (DE 25-6 at 9) The rails “are supported by posts that are

secured into base plates.” (DE 25-6 at 9) Those base plates are five and three-

quarter inches long, three and a half inches wide, and one and one-quarter

inches high. (DE 25-6 at 9) Steel tubular posts are “mounted into the center of

each plate.” (DE 25-6 at 9) Those posts are one and a half inches by one and a

half inches. (DE 25-6 at 9) Nolte also explained that “merchandise was

immediately beyond the most interior rail restricting access to the opposite side

of the store through the area immediately adjacent to the cart corral.” (DE 25-6

at 9)

Nolte noted that while customer will see the rails, they will not notice

“the base plate that is larger than the rails and posts. The base plates are not

brightly colored to attract attention nor are they barricaded in any way so that

a customer does not come in contact with them.” (DE 25-6 at 13) Nolte opined

that “concrete could have easily been poured to receive a post, support the

base and eliminate the hazard of the extended base plate into a foreseeable

path of travel for a customer.” (DE 25-6 at 14)

Relying on the National Safety Council, Nolte explained that “the primary

causes of trip hazards are elevation differentials one-quarter inch (1/4”) or

more in height, unobserved or poorly designed fixtures or displays and low

profile items in an aisle or walkway.” (DE 25-6 at 15) Because “there are times

when the cart corral may have only a few carts in it and customers need to go

into the cart corral in order to retrieve a cart,” the area in the corral may

reasonably be walked upon. (DE 25-6 at 14) When customers “back out of the

cart corral the low rise trip hazard of the base plates is present.” (DE 25-6 at

14) “[W]hen items are on the floor such as the base plate or a platform for a

mannequin in the store the base should be at least twelve inches (12”) high and

its edges should be highlighted.” (DE 25-6 at 15)

Nolte also referred to the American Society for Testing and Materials

(“ASTM”), and in particular, its “Standard Practice for Safe Walking Surfaces.”

(DE 25-6at 16) That provision “addresses minimum maintenance criteria for

reasonably safe walking surfaces.” (DE 25-6 at 16) The ASTM provides that, to

be safe, a “walkway surface . . . must be stable, planar, flush and even.” (DE

25-6 at 17) According to his report, the area where Ludwig fell was not planar,

flush or even, because there was “a one and one-quarter inch (1-1/4”) high

base plate that projected beyond the rails. This created an unstable walking

surface.” (DE 25-6 at 17) Nolte noted that, at the time of the accident, Ludwig

“was looking over her shoulder to monitor the position of the rails so that she

could safely back out of the cart corral system. What was not made known to

her was the projection of the low rise trip hazard in her path of travel created

by the base plates.” (DE 25-6 at 17) The ASTM provides that the use of

warnings “must be conspicuous, contrast with the surrounding environment

and be of bright color.” (DE 25-6 at 18) However, “[n]o such warning was on the

base plates that projected outward from the cart corral rail system.” (DE 25-6

at 18)

Nolte, “to a reasonable degree of engineering certainty based upon [his]

education, training and experience in engineering, inspection of accident site,

review of the accident with [Ludwig] and review of the materials,” concluded as

follows: (1) “The accident site was in a hazardous condition”; (2) “The

hazardous condition was the presence of a base plate for the cart corral system

that projected into a foreseeable and accessible path of travel for customers; (3)

Defendant “failed to recognize that customers going into the cart corral system

would pull a cart out by backing out. In so doing, they would have a reasonable

opportunity to come in contact with the low rise trip hazard of the base plates

that project into their foreseeable path of travel”; (4) “The simple solution to

eliminate the trip hazard at the accident location was to core the concrete floor

and set the posts into the floor to entirely eliminate the base plates”; (5) “The

area where Jeanne Ludwig’s accident occurred was a foreseeable and

accessible walking surface that was not in a safe condition” and “the base

plates did not contain any highlighted color such as orange, yellow or red to

attract customer attention to this low rise trip hazard”; (6) “The treatment

needed at the accident location is to set of the cart corral rail system posts into

the concrete floor through a core”; (7) Defendant “failed to inform their

management staff to look for low rise trip hazards such as the base plates on

the cart corral system” and “failed to inform their management that the aisle

way adjacent to the cart corral needed to be clear for passage from one side of

the store to the other”; and (6) “[H]aving a cart corral inside the store in what at

the time of this accident was the only foreseeable path of travel from the right

side of the store to the left side of the store at the front of the store for Jeanne

Ludwig created a hazardous condition which ultimately caused Jeanne Ludwig

to trip and fall.” (DE 25-6 at 20-21)

In contrast, defendant’s expert, Harold M. Tepper, P.E. opined that

Ludwig did not trip and fall because of the conditions of the cart corral, but

rather as a result of “her own negligence.” (DE 25-7 at 2) Ludwig’s negligence

included (1) “Being confused or having memory loss when she attempted to

navigate a cart corral partially filed with shopping carts that she knew or

should have known did not allow her the passage she desired;” and (2)

“Attempted to back out of the cart corral with a limited vision of existing

conditions when she readily could have turned around within the corral with

her cart and been able to see existing corral conditions, including its

supporting posts and the bases at the bottom of the posts.” (DE 25-7 at 2-3)

According to Tepper, “[h]ighlighting the incident low-rise base was not required

and was irrelevant to the fall since Ms. Ludwig was looking over her right

shoulder, and not her left shoulder, as she was walking backwards at the time

of her alleged incident.” (DE 25-7 at 3) Further, “the low-rise base at which Ms.

Ludwig allegedly tripped was within the ‘path of travel envelope’ created by the

outside face of a continuous plastic bumper fastened to the full length face of

the corral’s horizontal top railings.” (DE 25-7 at 3) Thus, “[d]ue to her own

negligence, Ms. Ludwig’s left foot went beyond the corral railings’ established

path of travel envelope when the foot encountered a corral post base (that was

located also outside of the corral’s established path of travel envelope) and

tripped, fell and became injured.” (DE 25-7 at 3)

b. Procedural History

On March 8, 2018, Ludwig initiated a one-count negligence action

against defendant Michaels in the Superior Court of New Jersey, Law Division,

Middlesex County, New Jersey.3 (DE 1 at 1; DE 1-1 at 5-6) Defendant removed

the matter to this Court pursuant to 28 U.S.C. § 1446.

3 In Count II, Ludwig asserted a negligence action against all unidentified

persons or entities. (DE 1-1 at 6)

The matter proceeded to arbitration on January 22, 2020. (DE 28-8 at 2)

The arbitrator, Maurice J. Gallipoli, A.J.S.C. (ret.), first concluded that the base

plates in question “were not in what one would consider the ‘walkway’, rather

they constituted the supports for the corral posts which delineated and thus

created the walkway, making Nolte’s opinions inapplicable to the undisputed

facts of the case.” (DE 25-8 at 3) Further, the arbitrator found the base plates

“were black, contrasted with the light colored floorings,” and “clearly stand out

in the photos.” (DE 25-8 at 3) Therefore, he “reject[ed] Nolte’s opinion that they

were in need of something more than is depicted to ‘highlight’ them for

customer safety.” (DE 25-8 at 3) Moreover, because plaintiff was “looking over

her shoulder” when the accident occurred, the arbitrator found it “hard to

understand how she would [have] been able to see the base plate that she came

in contact with, black or otherwise highlighted.” (DE 28-8 at 3) Given the

above, the arbitrator concluded that a “no cause for action” judgment should

be entered in favor of defendant and that the Complaint should be dismissed

with prejudice. (DE 25-8 at 3)

Because he found plaintiff failed to present ‘a case sufficient to allow for

jury consideration and determination,” he did not rule on the issue of plaintiff’s

comparative fault. (DE 25-8 at 3) If pressed, however, the arbitrator explained

that he “would find, on the undisputed facts of this case, that Plaintiff was

more negligent than Defendant and thus barred from recovery.” (DE 25-8 at 3)

Thereafter, on February 4, 2020, Ludwig requested a trial de novo

pursuant to Local Rule 201.1(h). (DE 24) Defendant then filed its motion for

summary judgment. (DE 25)

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.” Fed.

R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48,

106 S. Ct. 2505, 2509–10 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202,

204 (3d Cir. 2000).

“When the moving party has the burden of proof at trial, that party must

show affirmatively the absence of a genuine issue of material fact.” In re

Bressman, 327 F.3d 229, 238 (3d Cir. 2003) (quoting United States v. Four

Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). That is, the

moving party must demonstrate that “on all the essential elements of its case on

which it bears the burden of proof at trial, no reasonable jury could find for the

non-moving party.” Id.

On the other hand, “with 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.” Celotex Corp. v. Catrett, 477

U.S. 317, 325, 106 S. Ct. 2548, 2554 (1986). If the nonmoving party has failed

“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, 106 S. Ct.

at 2552).

To demonstrate the existence of a genuine issue, a 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, 1356 (1986). Likewise, “unsupported allegations ... and pleadings are

insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation, 912

F.2d 654, 657 (3d Cir. 1990). Rather, a party must present evidence sufficient to

create a triable issue. Anderson, 477 U.S. at 248–49, 106 S. Ct. at 2510; 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.”). By evidence, the Rule means

“materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). In construing such evidence, however, the

court must draw inferences in the light most favorable to the nonmoving party.

See Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998).

In deciding a motion for summary judgment, the court's role is not to

evaluate the evidence and decide the truth of the matter, but to determine

whether there is a genuine issue for trial. Anderson, 477 U.S. at 248–49, 106 S.

Ct. at 2510. Credibility determinations are the province of the fact finder. Big

Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992).

b. Net Opinion Rule

Defendant argues that Nolte’s opinions must be excluded as mere net

opinions. (DE 25-1 at 13) It contends that the conclusions “are not based upon

the uncontroverted facts, but rather assumptions,” and “are buttressed by

reference to engineering standards which are inapplicable to the location of

plaintiff’s fall.” (DE 25-1 at 13)

New Jersey Evidence Rule (“N.J.R.E”) 702 provides for the admission of

expert testimony: “If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill, experience, training,

or education may testify thereto in the form of an opinion or otherwise.”

N.J.R.E. 703 establishes the proper basis for expert opinions:

The facts or data in the particular case upon which an

expert bases an opinion or inference may be those

perceived by or made known to the expert at or before

the proceeding. If of a type reasonably relied upon by

experts in the particular field in forming opinions or

inferences upon the subject, the facts or data need not

be admissible in evidence.

New Jersey’s “net opinion” rule provides “that an expert’s bare

conclusions, unsupported by factual evidence, is inadmissible.” Buckelew v.

Grossbard, 435 A. 2d 1150, 1156 (N.J. 1981) The rule “frequently focuses . . .

on the failure of the expert to explain a causal connection between the act or

incident complained of and the injury or damage allegedly resulting therefrom.”

Id. It “requires an expert ‘to give the why and wherefore’ of his or her opinion,

rather than a mere conclusion.” Rosenberg. Tavorath, 800 A.2d 216, 226 (N.J.

Super. Ct. App. Div. 2002) (quoting Jimenez v. GNOC, Corp., 670 A.2d 24, 27

(N.J. Super. Ct. App. Div. 1996)). Thus, “expert testimony is excluded if it is

based merely on unfounded speculation and unquantified possibilities.”

Vuocolo v. Diamond Shamrock Chemicals Co., 573 A.2d 196, 202 (N.J. Super.

Ct. App. Div. 1990). Instead, experts must “be able to identify the factual bases

for their conclusions, explain their methodology, and demonstrate that both

the factual bases and methodology are reliable.” Townsend v. Pierre, 110 A.3d

52, 55 (N.J. 2015) (internal quotation marks omitted) (quoting Landrian v.

Celotex Corp., 605 A.2d 1079, 1086 (N.J. 1992)

Nevertheless, “[t]he net opinion rule is not a standard of perfection.” Id.

at 54. “The rule does not mandate that an expert organize or support an

opinion in a particular manner that opposing counsel deems preferable,” and

such opinion “should not be excluded merely ‘because it fails to account for

some particular condition or fact which the adversary considers relevant.” Id

(quoting Creanga v. Jardal, 886 A.2d 633, 642 (N.J. 2005)). Provided the expert

presents sufficient reasons to support his opinion, the omission of a particular

fact or condition may be properly explored on cross-examination. Id.

In Townsend, the New Jersey Supreme Court held that the trial court

properly excluded the causation opinion of the plaintiff’s expert where the

expert acknowledged defendant’s testimony but contended that her account

was mistaken. Id. at 56. That action arose from a fatal accident between the

driver of an automobile, Pierre, and the driver of a motorcycle. Id. at 55-56. The

driver “was turning left at an intersection controlled by a stop sign.” Id. at 56.

The plaintiffs alleged the owner of “a property located on a corner of the

intersection where the accident occurred . . . negligently maintained overgrown

shrubbery on their property, blocking Pierre’s view of oncoming traffic at the

intersection.” Id. Pierre testified that the shrubbery “initially obscured her

view,” but that, after she hedged forward, her “view of oncoming traffic was

unimpeded.” Id. In other words, when Pierre turned, “she had an unobstructed

view of approaching traffic.” Id. Pierre’s account was corroborated by the front-

seat passenger of the automobile. Id. at 57. There was “no testimony to the

contrary.” Id. at 56. Nevertheless, the expert opined that the overgrown

shrubbery was a proximate cause of the accident. Id. The expert maintained

that Pierre’s account of the accident must have been mistaken. Id. The

Supreme Court concluded that, based on “the uncontradicted testimony of

Pierre and her passenger that Pierre’s view of oncoming traffic was

unimpeded,” the lower court properly excluded the expert’s causation opinion.

Id. The Court reasoned that such opinion “was a net opinion that was not only

supported by the factual evidence, but directly contradicted that evidence.” Id.

Here, defendant proffers seven reasons that Nolte’s report constitutes a

net opinion: (1) the cart corral was not a walkway because it was not designed

for customers to traverse (DE 25-1 at 17); (2) even if the area was a walkway,

the base plates did not extend into the walkway area so there is no deviation

from the standards Nolte relied upon (DE 25-1 at 19); (3) the color of the base

plates provided adequate warning to customers (DE 25-1 at 19); (4)

nevertheless, any warning was immaterial because Ludwig was walking

backwards when the accident occurred and did not make proper observations

(DE 25-1 at 20); (5) there is no standard requiring the railing be cored into the

floor (DE 25-1 at 21); (6) Ludwig cannot establish that the base plate extending

into the walkway is what caused her fall (DE 25-1 at 22); and (7) the corral

area was not the only foreseeable path of travel (DE 25-1 at 23). Those

arguments, I find, may go to the weight that a fact finder could give Nolte’s

report, but do not require its exclusion as a net opinion.

First, Nolte provided more than “bare conclusions.” See Buckelew 435

A.2d at 1156. He noted the materials he relied upon, he took and described the

measurements of the corral area, and he described and attached the relied-

upon safety standards. Critically, he acknowledged, and did not attempt to

discredit, plaintiff’s factual account of the manner in which the accident

occurred. Nolte justified his reliance on standards for walkways by noting that

there are times when customers will have to walk into the corral area to obtain

a cart. (DE 25-6 at 14) Thus, even if customers are not to use the corral area as

a through route, they will be entering it from time to time to obtain a cart.

Melin testified that on busier days, the corral area may become empty (DE 27-4

at 6); it therefore stands to reason that at times the corral may contain only a

few carts, so the customer must enter the corral area to obtain one. (See 25-6

at 14). It is therefore not unreasonable to apply walking surfaces guidelines to

the area in question.

Second, defendant makes a number of arguments that even if the

walking surfaces standards apply, the condition of the corral did not deviate

from those standards. (DE 25-1 at 19) Such a determination is for the jury; the

expert’s role is to help the jury determine a fact in issue, not to dictate those

determinations. See N.J.R.E. 702. Defendant contends that the “photographs

confirm that the baseplates extended no further than the interior bumper of

the cart corral, and thus they did not extend into the interior of the cart

corral.” (DE 13 at 26) That Nolte did not include the bumpers in his report is

not an adequate reason to disregard the report as a whole. See Townsend, 110

A.3d at 54. That omission may be explored on cross-examination. Id. A jury

then might or might not see fit to reject Nolte’s opinions and conclude that (1)

the bumpers prevent the base plates from entering the walking surface area

and (2) the area complied with applicable standards. Those, however, are not

facts but issues of fact; they are not the stuff of summary judgment.

The same logic applies to defendant’s argument that the cart corral was

not the only foreseeable path of travel. (DE 25-1 at 23) Nolte testified that

merchandise blocked the path of a customer from walking parallel to the corral

area to the other side of the store, while Defendant submits that there was

another alternative, i.e., for Ludwig to retrace her steps. (Compare DE 25-6 at

9 with DE 25-1 at 23.) Such a factual dispute is for the jury. It does not render

Nolte’s report a mere not opinion.

Defendant attacks Nolte’s report on the basis of Ludwig’s inability to say

whether the portion of the base plate on which she fell was the same portion

identified as an improper extension. (DE 25-1 at 22) That is not so much a “net

opinion” argument, however, but rather an argument that Ludwig has failed to

meet her burden of proof. That argument will be addressed below.

c. Negligence Standard

“To sustain a cause of action for negligence, a plaintiff must establish

four elements: ‘(1) a duty of care, (2) a breach of that duty, (3) proximate cause,

and (4) actual damages.” Townsend, 110 A.3d at 61 (quoting Polzo c. County of

Essex, 960 A.2d 375, 384 (N.J. 2008)). The plaintiff must establish those

elements “by some competent proof.” Id. (internal quotation marks omitted)

(quoting Davis v. Brickman Landscaping, Ltd., 98 A.3d 1173, 1179 (N.J. 2014)).

Here, defendant contends that plaintiff failed to establish proof of

causation. (DE 25-1 at 28; DE 28 at 18) Proximate cause is “any cause which

in the natural and continuous sequence, unbroken by an efficient intervening

cause, produces the result complained of and without which the result would

not have occurred.” Townsend, 110 A.3d at 61 (internal quotation marks

omitted) (quoting Conklin v. Hannoch Weisman, 678 A.2d 1060, 1071 (N.J.

1996)). To establish causation, the plaintiff must

introduce evidence which affords a reasonable basis for

the conclusion that it is more likely than not that the

conduct of the defendant was a cause in fact of the

result. A mere possibility of such causation is not

enough; and when the matter remains one of pure

speculation or conjecture, or the probabilities are at

best evenly balanced, it becomes the duty of the court

to direct a verdict for the defendant.

Id. at 66-68 (quoting Davidson v. Slater, 914 A.2d 282, 293 (N.J. 2007)

Defendants contend that even if the cart corral was improper because

the base plates extended into walkway, Ludwig “cannot substantiate that the

improper aspect of the cart corral railing base plate (that is, the part alleged to

extend into the walkway) is what caused her to fall.” (DE 25-1) Plaintiff

concedes that Ludwig does not know or recall which portion of the baseplate

caused her fall. (DE 27 at 25) According to defendants, that gap in the proofs is

fatal, because “[w]ithout linking the alleged violation to the fall, Plaintiff cannot

prove that the alleged negligence by Michaels proximately caused [her]

injuries.” (DE 25-1 at 22)

Ludwig submits that, granting her the benefit of all reasonable

inferences, the fact that she “did not see which part of the base plate her foot

came in contact with and caused her to fall does not eliminate the possibility

that a reasonable jury could conclude [her] fall was caused by the hazardous

condition created by Defendant’s improper placement of the baseplate in the

cart corral area.” (DE 27 at 26-27)

Ludwig bears the burden of establishing causation “by some competent

proof.” See Townsend, 110 A.3d at 61. On summary judgment, “with 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.” Celotex Corp., 477 U.S. at 325. If the nonmoving

party has failed “to make a showing sufficient to establish the existence of an

element essential to that party’s case,” then there is 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, 972 F.2d at 55 (3d Cir. 1992) Ludwig was required to submit evidence

establishing that it was more likely than not defendant’s improperly extending

the base plates into the walking area caused her fall. See Townsend, 110 A.3d

at 61 (quoting Davidson, 914 A.2d at 293). A mere possibility that Ludwig

contacted the portion of the base plate that extended into the walkway – as

opposed to the portion of the base plate that did not extend into the walkway –

will not be sufficient to discharge her burden of proof at trial. See Id. Plaintiff

concedes there are two possibilities that caused her fall: “1) her foot caught on

the interior section of the base plate which dangerously extended into the walk;

or 2) her foot could have caught the portion of the base plate directly under the

railing which was not extending into the walkway area,” which would relieve

defendant of liability. (DE 27 at 25) “[W]hen the matter remains one of pure

speculation or conjecture, or the probabilities are at best evenly balanced, it

becomes the duty of the court to direct a verdict for the defendant.” Townsend,

110 A.3d at 61 (quoting Davidson, 914 A.2d at 293). Here, that means granting

summary judgment in favor of defendant.

Ms. Ludwig’s accident was real, and her injuries are surely real; any

decent person must sympathize. But to hold Michaels liable for her accident,

Ludwig is required to submit proof that the extended base plate caused her fall.

She has failed to produce evidence of that; she herself does not know, and

there appears to be no relevant third-party testimony or video evidence.

Therefore, Ludwig has failed to establish that there is a genuine issue of

material fact for trial—i.e., that she possesses evidence from which a jury could

legitimately find by a preponderance of the evidence that defendant’s

negligently-kept cart corral caused her injuries.

III. Conclusion

For the reasons set forth above, I will grant defendant’s motion (DE 25)

for summary judgment. The action is dismissed. An appropriate order follows.

Dated: November 23, 2020

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge