Child’s Pierced Eye May Leave Marshalls Liable

     (CN) – The department store Marshalls cannot dismiss negligence and emotional distress claims filed on behalf of a 9-year-old whose eye was impaled by a display hook, a federal judge ruled.
     On July 12, 2010, 9-year-old Delaney Gould was shopping with her parents, Jennifer and Thomas Gould, and her two younger sisters at a Marshalls in Mays Landing, N.J.
     Looking for privacy to try on a bathing suit top in the children’s clothing section, Delaney walked between a four-sided clothing rack, known as a rounder, and a slatted wall with 10-inch hooks for holding merchandise. The gap where she stood was about a foot wide.
     As Delaney bent down to retrieve her shirt, her eyelid was pierced by an empty hook that had allegedly been obscured by clothing on the overhanging hook.
     Summoned by Delaney’s scream, her mother came over from a few feet away and detached the hook from the wall. The girl’s father then pulled the hook from her eye. Delaney went to a local emergency room and then the Children’s Hospital of Pennsylvania.
     She underwent two eye surgeries over the next two months but is no longer a candidate for further surgery to improve her condition.
     The incident has left Delaney with permanent drooping of her left eye, a condition known as ptosis. Her eye also does not close completely, causing her to experience dryness and tearing.
     Delaney says she has had difficulty adjusting to the way her eye now looks and feels.
     She and her parents filed a federal complaint against TJX Companies Inc. dba Marshalls Department Store, asserting claims for negligence, parental per quod, and emotional distress.
     Marshalls moved for summary judgment, arguing that customers are not supposed to pass between the wall and rack. It also called the allegation about the hidden hook “pure speculation,” and said the incident was simply an unfortunate “freak” accident for which Marshalls cannot, and should not, be held liable.
     U.S. District Judge Noel Hillman sided with the parents on March 26, noting the “mode-of-operation” rule from the 2003 decision Nisivoccia v. Glass Gardens Inc. This rule requires the defendants to “come forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard.”
     Hillman found that “the placement of a clothing rack only a foot from a wall with protruding hooks is a typical layout for this Marshalls store,” with regard to the mode-of-operation rule.
     “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,” he added. “A reasonable jury could also find that the inherent dangerousness of this layout is magnified by the hooks being placed at a child’s 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.”
     Marshalls may be liable for its lack of awareness of the dangerous condition, according to the ruling.
     “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 rounds inspecting the condition of the store; and (3) it admitted that hanging clothing can obscure empty hooks from sight,” Hillman wrote.
     The severity of the Goulds’ emotional distress claims is also “sufficient to go to the jury,” according to the ruling.
     “Delaney’s parents have testified to the serve [sic] 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,” Hillman wrote. “Testimony in the record shows that other customers fled the building upon hearing Ms. Gould’s screams because they thought someone had been stabbed. Ms. Gould also was proscribed [sic] Xanax by her doctor due to her emotional trauma of her daughter’s eye injury.”
     The parents can also advance a per quod claim to recover the expenses they incurred as a result of Delaney’s injury, but Hillman limited the claim to costs that do not require expert testimony.

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