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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,
v.
DOLLAR TREE STORES INC., et al., Defendant, Third-Party Plaintiff
v.
CYNTHIA MASON Third-Party Defendant

          OPINION AND ORDER

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. BACKGROUND

         The Court has previously summarized the relevant factual background:

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., 24:1-8).
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).

         Nearly 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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