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Smith v. Dollar Tree Stores, Inc.
United States District Court, S.D. Ohio, Eastern Division
November 20, 2019
AUSTIN SMITH, et al., Plaintiffs,
DOLLAR TREE STORES INC., et al., Defendant, Third-Party Plaintiff
CYNTHIA MASON Third-Party Defendant
OPINION AND ORDER
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant Dollar Tree Stores,
Inc.'s Motion for Summary Judgment (Doc. 61) and
Third-Party Defendant Cynthia Mason's Motion for Summary
Judgment (Doc. 59). The Motions are DENIED.
Court has previously summarized the relevant factual
This case concerns an incident at one of Defendant Dollar
Tree Stores, Inc.'s (“Dollar Tree”) store in
Columbus, Ohio. Plaintiffs are Austin Smith and his father,
Bryan Smith. Third-Party Defendant Cynthia Mason is the
mother of Plaintiff Bryan Smith and the grandmother of
Plaintiff Austin Smith. (Doc. 64-1, 16:22-17:4; id.,
26:6-8). On July 24, 2000, Austin traveled with Ms. Mason and
her then-husband from Rushville, Indiana to Columbus, Ohio to
attend a scrimmage between the Cleveland Browns and
Indianapolis Colts. (Id., 22:3-13).
After the game, the three of them stopped at a Dollar Tree
store in the Columbus area (the “Hilliard Dollar
Tree”). (Id., 22:13-16). Upon entering the
Hilliard Dollar Tree, Ms. Mason placed Austin in a cart and
“told him that if he was a good boy, ” she
“would get him some toys[.]” (Id.,
22:17-20). She explained what happened next:
So we proceeded down the aisle to where the toys were. We
were probably about three-fourths of the way down the aisle
and he saw the toys and he wanted to get out. So I stopped
the cart. I took him out of the cart. And as I was putting
him down on the floor, I took ahold of his wrist. He broke
free from me and took about three steps. And at the time, he
then fell forward.
By this time, he was at the end of the aisle and there were
three display hooks sticking out from the wall. There was no
product hanging on them. They were probably about 10 inches
from the floor. And he was just probably an arm's length
from me before I could grab him. I was not able to grab him
as he fell. And when he fell, it looked like he was going to
fall in between the two display hooks, but instead he fell on
the display hook …
When he flipped his head back, it popped the display hook off
and he -- and by that time I picked him up and he was
bleeding profusely from his eye.
(Id., 22:22-23:19). Someone at the store called 911,
and Austin was transported by ambulance to Children's
Hospital in Columbus where he was admitted. (Id.,
Austin was diagnosed with a fractured orbit, (id.,
37:14-17), and then transferred to Riley Children's
Hospital in Indianapolis for surgery, (id., 40:1-9).
Doctors performed surgery to determine the extent of injury
and its effect on the musculature of Austin's eye.
(Id., 41:16-42:14). They also repaired the fractured
orbit to prevent spinal fluid leakage. (Id.).
(Doc. 88 at 1-2). Austin was two years old at the time of the
incident. (Doc. 64-1, 26:17-24).
two decades later:
Plaintiffs filed this action in the Franklin County Court of
Common Pleas on February 22, 2018. (Doc. 1-1). After
Defendants removed to this Court on March 23, 2018, (Doc. 1),
Plaintiffs filed a First Amended Complaint, alleging, among
other things, claims of negligence against Defendant Dollar
Tree and Defendant Trion Industries, Inc., (Doc. 8). The
parties filed several Motions for Summary Judgment (Doc. 57,
59, 61), and Defendant Dollar Tree also filed a Motion to
Exclude Opinions of Plaintiffs' Expert (Doc. 82).
Subsequent to filing ...
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