UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DELANEY GOULD,

a Minor, by her Parents and

Natural Guardians, THOMAS and

JENNIFER GOULD, (h/w), THOMAS

GOULD and JENNIFER GOULD,

 Plaintiffs,

v.

TJX COMPANIES, INC.

individually, and d/b/a

MARSHALLS DEPARTMENT STORE,

 Defendant.

CIVIL NO. 11-288(NLH)(KMW)

OPINION

Appearances:

EMILY B. MARKS

ROBERT N. HUNN 

KOLSBY GORDON ROBIN SHORE & BEZAR

2000 MARKET STREET

28TH FLOOR

PHILADELPHIA, PA 19103 

On behalf of plaintiffs

ANDREW S. TURKISH

GEORGE L. PSAK 

PSAK & ASSOCIATES

127 UNION AVENUE

MIDDLESEX, NJ 08846 

On behalf of defendant

HILLMAN, District Judge

This action concerns plaintiffs’ claims for negligence and

emotional distress when the nine-year-old plaintiff’s eye was

impaled by a clothing display hook at a Marshalls Department

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Store. Presently before the Court is defendant’s motion for

summary judgment. For the reasons expressed below, defendant’s

motion will be denied.

BACKGROUND

On July 12, 2010, plaintiff, Delaney Gould, then age 9, was

shopping with her parents, plaintiffs Jennifer and Thomas Gould,

and her two younger sisters at a Marshalls Department Store in

Mays Landing, New Jersey. In the children’s clothing section of

the store was a slatted wall with 10-inch hooks protruding from

the wall to hold merchandise. About a foot away from the display

wall was a four-sided clothing display rack (a “rounder”) holding

clothes. Delaney moved between the rack and the wall to try on a

bathing suit top. After trying it on, she bent down to retrieve

her shirt. As she did so, her eyelid was pierced by an empty wall

hook that plaintiffs claim was obscured by clothing hanging from a

hook above. Hearing Delaney scream, her mother, who was a few

feet away, detached the hook from the wall, and her father then

pulled the hook from her eye.

Delaney was taken to the local emergency room, and was then

transferred to Children’s Hospital of Pennsylvania. As a result

of the laceration to her eyelid, Delaney has permanent Ptosis

(drooping) of her left eye. On August 27, 2010, Delaney underwent

surgery for Ptosis repair of her left eyelid and anterior levator

resection. On September 15, 2010, she underwent a second surgery. 

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At this time she is not a candidate for further surgery to improve

her condition. In addition to the drooping, her eye does not

close completely, causing her to experience dryness and tearing. 

Delaney has had difficulty adjusting to the way her eye now looks

and feels.

Delaney and her parents filed their complaint against

defendant TJX Companies, Inc., which operates the Marshalls store, 

asserting claims for negligence, parental per quod, and negligent

infliction of emotional distress. Defendant has moved for summary

judgment on plaintiffs’ claims, and plaintiffs have opposed

defendant’s motion. 

DISCUSSION

A. Jurisdiction

This Court has jurisdiction over this matter pursuant to 28

U.S.C. § 1332 because there is complete diversity of citizenship

between the parties and the amount in controversy exceeds $75,000.

B. Summary Judgment Standard

Summary judgment is appropriate where the Court is satisfied

that the materials in the record, including depositions,

documents, electronically stored information, affidavits or

declarations, stipulations, admissions, or interrogatory answers,

demonstrate that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of

law. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R.

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Civ. P. 56(a).

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is “material” if, under the governing substantive

law, a dispute about the fact might affect the outcome of the

suit. Id. In considering a motion for summary judgment, a

district court may not make credibility determinations or engage

in any weighing of the evidence; instead, the non-moving party's

evidence “is to be believed and all justifiable inferences are to

be drawn in his favor.” Marino v. Industrial Crating Co., 358

F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating

the absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met

this burden, the nonmoving party must identify, by affidavits or

otherwise, specific facts showing that there is a genuine issue

for trial. Id. Thus, to withstand a properly supported motion

for summary judgment, the nonmoving party must identify specific

facts and affirmative evidence that contradict those offered by

the moving party. Anderson, 477 U.S. at 256-57. A party opposing

summary judgment must do more than just rest upon mere

allegations, general denials, or vague statements. Saldana v.

Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

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C. Analysis

1. Negligence

Plaintiffs claim that defendant was negligent in creating a

hazardous condition consisting of 10-inch hooks projecting from a

wall at a child’s eye level, where if obscured by clothing hanging

from above, serve as latent spears to pierce the eyes or eyelids

of children. Defendant argues that plaintiffs’ negligence claim

fails because they cannot establish that it created a dangerous

condition or knew of a dangerous condition. Defendant also argues

that plaintiffs’ lack of an expert witness is fatal to their

claim. Defendant’s arguments are unpersuasive.

The law governing a business owner’s liability for injuries

sustained by its patrons is well-established in New Jersey. 

“Business owners owe to invitees a duty of reasonable or due care

to provide a safe environment for doing that which is within the

scope of the invitation.” Nisivoccia v. Glass Gardens, Inc., 818

A.2d 314, 316 (N.J. 2003) (citing Restatement (Second) of Torts §

343 (1965)) (other citations omitted). “The duty of due care

requires a business owner to discover and eliminate dangerous

conditions, to maintain the premises in safe condition, and to

avoid creating conditions that would render the premises unsafe.” 

Id. (citation omitted).

With regard to a plaintiff’s burden of proof, “[o]rdinarily

an injured plaintiff asserting a breach of that duty must prove,

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as an element of the cause of action, that the defendant had

actual or constructive knowledge of the dangerous condition that

caused the accident.” Id. (citation omitted). Where, however, as

a matter of probability, a dangerous condition is likely to occur

as the result of the nature of the business, the property’s

condition, or a demonstrable pattern of conduct or incidents, a

plaintiff is afforded “an inference of negligence, imposing on the

defendant the obligation to come forward with rebutting proof that

it had taken prudent and reasonable steps to avoid the potential

hazard.” Id. This is called the “mode-of-operation” rule. Id. 

(explaining that the mode-of-operation rule has been applied to

self-service areas, such as in produce departments and around

beverage dispensers).

Plaintiffs in this case have demonstrated material issues of

disputed fact as to defendant’s negligence under either theory of

premises liability. With regard to the mode-of-operation rule,

the placement of a clothing rack only a foot from a wall with

protruding hooks is a typical layout for this Marshalls store. A

reasonable jury could find that this layout is a dangerous

condition inherent to the store’s mode of operation because the

store intends patrons to pass between that tight space and browse

and inspect the clothing hanging from both the rack and the wall. 

A reasonable jury could also find that the inherent dangerousness

of this layout is magnified by the hooks being placed at a child’s

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eye level in the children’s clothing section of the store, and by

the fact that clothing hanging from above could obscure a hook

from view.

With regard to defendant’s knowledge of the dangerous

condition, a defendant has constructive knowledge “‘if the

condition existed for such a length of time that the business

owner should have known of its presence.’” Bezglasnaya v. Trump

Entertainment Resorts, Inc., 2013 WL 796308, 4 (D.N.J. 2013)

(quoting Bozza v. Vornado Inc., 200 A.2d 777 (N.J. 1964)). A

plaintiff does not need to prove exactly how long the dangerous

condition existed if the facts otherwise demonstrate that a

defendant had constructive notice. Id. (citation omitted). If a

plaintiff presents material facts that suggest defendant should

have been aware of the dangerous condition, summary judgment

should be denied because whether a defendant in fact had

constructive notice is a question for the jury. Id. (citing

Monaco v. Hartz Mountain Corp., 840 A.2d 822 (N.J. 2004)).

In this case, a reasonable jury could find that defendant had

actual or constructive knowledge of the danger of the wall hooks

because: (1) two weeks before, the Marshalls store replaced

straight wall hooks with curved “safety” hooks, thus evidencing

awareness of the need to protect customers from protruding metal

hooks; (2) it was Marshalls custom to remove empty wall hooks from

the slat walls or hang clothing on empty hooks when employees made

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rounds inspecting the condition of the store; and (3) it admitted

that hanging clothing can obscure empty hooks from sight.

Defendant argues that its store layout is not dangerous, as

customers are not supposed to pass between the slat wall and the

clothing display rack. Defendant also argues that it did not have

any actual or constructive knowledge of the offending hook, it

could not have known that a child would try on clothing between

the rounder display and the slat wall and impale her eye on a

hook, and it is “pure speculation” that the hook was obscured from

view. Moreover, defendant argues that plaintiffs have not

provided any expert testimony that defendant breached a duty of

care to plaintiffs. Overall, defendant contends that it was

simply an unfortunate “freak” accident that it cannot, and should

not, be held liable for.

It is true that the mere fact a person was injured, “in and

of itself, is insufficient to establish liability against a

defendant,” Lee v. Shoprite, 2012 WL 1605205, 2 (N.J. Super. App.

Div. 2012) (citing Simpson v. Duffy, 19 N.J. Super. 339, 343 (App.

Div.), cert. denied, 10 N.J. 315 (1952)), and “not every property

condition on which persons can hurt themselves is unreasonably

dangerous or hazardous,” Robertson v. Cousins Wholesale Produce,

Inc., 2010 WL 2867928, 3 (N.J. Super. Ct. App. Div. 2010). Here,

however, the evidence shown by plaintiffs, and defendant’s

arguments in response, demonstrate sufficient material disputed

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facts to allow the jury to decide whether defendant exercised

reasonable care to provide its business invitees a “reasonably

safe place to do that which is within the scope of the

invitation.” Butler v. Acme Mkts., Inc., 445 A.2d 1141, 1143

(N.J. 1982) (citing Brody v. Albert Lifson & Sons, 111 A.2d 504

(N.J. 1955)) (finding that it was for a jury to determine

reasonable care where “the business invitor is in the best

position to provide either warnings or adequate protection for its

patrons when the risk of injury is prevalent under certain

conditions, and because the public interest lies in providing a

reasonably safe place for a patron to shop”).

Furthermore, when the issue of whether defendant breached its

duty of care to the plaintiffs is sent to the jury, no expert

testimony is required to assist the jury in making its

determination. It has long been held that except for most

malpractice cases, there is no general rule or policy requiring

expert testimony as to the standard of care. Butler, 445 A.2d at

1147 (citations omitted) (also explaining that even in malpractice

cases, “the facts of a given case may be such that the common

knowledge possessed by laymen may permit a finding that a duty of

due care has been breached,” Klimko v. Rose, 422 A.2d 418 (N.J.

1980)). “The test of need of expert testimony is whether the

matter to be dealt with is so esoteric that jurors of common

judgment and experience cannot form a valid judgment as to whether

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the conduct of the party was reasonable.” Id.; see also F.R.E.

702 (“A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if: . . . the expert’s scientific, technical,

or other specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue. . . .”).

Expert testimony is only needed to help to exclude other possible

causes of the accident and avoid pure speculation. Yepez v.

Sports and Games Funplex, 2008 WL 794997, 3 (N.J. Super. App. Div.

2008) (citations omitted). 

In this case, whether a protruding metal wall hook placed at

a child’s eye level in the children’s clothing section of a

department store creates a dangerous condition is not beyond the

ken of a lay jury. It is also not beyond a jury’s common judgment

and experience to determine whether defendant is liable for

breaching a duty of care to plaintiffs by maintaining that

dangerous condition. See, e.g., Roth v. Marina Associates, 2009

WL 2496803, 7-8 (D.N.J. 2009) (finding that expert testimony was

not required to determine whether the several-inch drop-off of a

sidewalk tree planter is a dangerous condition or whether

defendant breached its duty by not maintaining the premises in a

reasonably safe way, or whether stepping into the planter caused

plaintiff's accident); Hopkins v. Fox & Lazo Realtors, 625 A.2d

1110, 1121 (N.J. 1993) (finding that tripping on a step that one

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is not expecting and is difficult to see does not involve a matter

that is beyond the comprehension of jurors); cf. Shipley v. Target

Corp., 2007 WL 987155, 3 (N.J. Super. App. Div. 2007) (“Resolution

of the alleged dangerous condition, the steepness of the

embankment, is dependent on plaintiff's contention that it was

improperly graded. Under the circumstances presented, a

determination of whether the grade of the embankment created a

hazard sufficient to establish an unreasonably dangerous condition

is “beyond the ken of the average juror.’”). Consequently,

plaintiffs’ negligence claim may proceed to trial.

2. Per quod

Delaney’s parents have lodged a per quod claim against

defendant to recover the expenses they incurred as a result of

Delaney’s injury. Defendant argues that the parents’ per quod

claim fails because they have not produced an expert to

demonstrate their damages resulting from Delaney’s injuries, and

they are not permitted to a double recovery for those damages. 

Plaintiffs contest defendant’s position. 

Under New Jersey law, parents may recover damages for the

loss of services, earnings, and medical expenditures resulting

from injuries to a minor child. Tynan v. Curzi, 753 A.2d 187,

189, 192 (N.J. Super. Ct. App. Div. 2000) (explaining what is

recoverable for a per quod claim, but declining to allow parents

to recover for loss of companionship and society in a negligence

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action). Like with plaintiffs’ negligence claim, expert testimony

is not needed to prove damages that are readily calculated and

attributable to plaintiffs’ injuries. Butler, 445 A.2d at 1147;

cf. Mauro v. Raymark Indus., 51 A.2d 257 (N.J. 1989) (explaining

that courts have required the use of an expert opinion concerning

future damages).

Here, Delaney’s parents seek to recover for the medical

expenses they incurred as a result of the injury to her eye, and

they will present their medical bills as proof of that loss. They

will also be required to document their expenses and show whether

they have been paid by a collateral source, such as insurance. 

See County of Bergen Employee Benefit Plan v. Horizon Blue Cross

Blue Shield of New Jersey, 988 A.2d 1230, 1234 (N.J. Super. App.

Div. 2010)(explaining that the collateral source rule requires

prevents a plaintiff from recovering cumulative, duplicative

benefits); N.J.S.A. 2A:15–97 (codifying the collateral source

rule). Before proving damages, however, plaintiffs will have to

first prove their premises liability claim. See McDonald v.

Lederle Laboratories, 841 A.2d 948, 953 (N.J. Super. Ct. App.

2004) (explaining that a mother’s per quod claim is dependent only

on proof that defendants manufactured a defective product, which

proximately caused her son’s injuries). 

Accordingly, to the extent that plaintiffs can establish

defendant’s liability on their negligence claim, and they only

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seek reimbursement for costs that do not require expert testimony,

plaintiffs’ per quod claim may proceed. 

3. Negligent infliction of emotional distress

Delaney’s parents have also asserted claims against defendant

for negligent infliction of emotional distress caused by their

horror of witnessing their nine-year-old daughter impaled with a

large metal hook in her eye. Defendant has moved for summary

judgment, contending that plaintiffs cannot demonstrate any severe

or lingering emotional distress.

New Jersey law recognizes a claim for the negligent

infliction of emotional injury experienced by a bystander who

witnessed serious injury to a family member. Dunphy v. Gregor,

642 A.2d 372, 374 (N.J. 1994) (citing Portee v. Jaffee, 417 A.2d

521 (N.J. 1980) (explaining, “It is the presence of deep,

intimate, familial ties between the plaintiff and the physically

injured person that makes the harm to emotional tranquility so

serious and compelling. The genuine suffering which flows from

such harm stands in stark contrast to the setbacks and sorrows of

everyday life, or even to the apprehension of harm to another,

less intimate person.”). For a bystander-claimant to prevail, the

claimant must demonstrate “‘(1) the death or serious physical

injury of another caused by defendant’s negligence; (2) a marital

or intimate, familial relationship between the plaintiff and the

injured person; (3) observation of the death or injury at the

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scene of the accident; and (4) resulting severe emotional

distress.’” Id. (quoting Portee, 417 A.2d at 528).

In order to demonstrate the fourth element, a plaintiff does

not need to provide expert testimony or demonstrate psychological

treatment. See J.W. v. L.R., 740 A.2d 146 (N.J. Super. App. Div.

1999); Smith v. Grandsen, 2011 WL 7777106, 5 (D.N.J. 2011) (citing 

Portree, 417 A.2d at 528; Ortiz v. John D. Pittenger Builder,

Inc., 889 A.2d 1135 (N.J. Super. Ct. App. L. Div. 2004)). 

Plaintiffs must prove, however, “genuine and substantial emotional

distress or mental harm to the average person,” and they “cannot

recover for idiosyncratic emotional distress that would not be

experienced by an average person,” or for general upset and

anxiety. Wigginton v. Servidio, 734 A.2d 798, 807 (N.J. Super.

Ct. App. Div. 1999); Rocci v. MacDonald-Cartier, 731 A.2d 1205,

1209 (N.J. Super. App. Div. 1999). The determination of whether

emotional distress can be found in a particular case is a question

of law for a court to decide, leaving the jury to decide if it had

been proved in fact. Rocci, 731 A.2d at 1209-10 (citing Buckley

v. Trenton Saving Fund Soc., 544 A.2d 857 (N.J. 1988)).

Delaney’s parents have testified to the serve emotional

distress they suffered as a result of the injury to her eye, and

the store manager has testified to the severity of the parents’

emotional state at the scene. Testimony in the record shows that

other customers fled the building upon hearing Ms. Gould’s screams

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because they thought someone had been stabbed. Ms. Gould also was

proscribed Xanax by her doctor due to her emotional trauma of her

daughter’s eye injury.

As the New Jersey Supreme Court observed, “The emotional harm

following the perception of the death or serious injury to a loved

one is just as foreseeable as the injury itself, for few persons

travel through life alone.” Portee, 417 A.2d at 528. Plaintiffs’

expression of the severity of their emotional distress is

sufficient to go to the jury. It is up to the jury to determine

the extent of their emotional distress and to what degree it is

compensable. 

CONCLUSION

For the reasons expressed above, defendant’s motion for

summary judgment shall be denied. An appropriate Order will be

entered.

Date: March 26, 2013 s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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