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Target Found Not Liable for Child’s Injury Which Occurred After Fall off Bollard in Front of Store

By on June 5, 2020 in Negligence with 0 Comments

The minor plaintiff, five year old, Vince Costello, was shopping at a Target Store with his aunt, Liza Costello.  After shopping, they were waiting outside the store for a ride home when Vince began playing on top of a red, spherical bollard in front of the store.  After playing for some time, he fell off and injured his arm.  In Costello v. Target Corp., 2020 U.S. Dist. LEXIS 65484 (D.N.J. April 14, 2020), the issue was whether Target could be found negligent for placing the bollard, an alleged dangerous condition and attractive nuisance, outside the store.

According to the video of the incident, the minor plaintiff is seen climbing on and off one of the bollards for about 20 minutes while his aunt is sitting on a bench watching him.  Target’s Director of Construction testified that the bollards are visual cues to separate the sidewalk from traffic and act as a barrier between pedestrians walking on the sidewalk and cars driving in the road or parking lot.  He also testified that there had been no prior accidents or lawsuits involving children or adults falling off, or being injured by, the bollards.

The plaintiff retained an expert, Dr. Robert Sugarman, who holds a doctorate in experimental psychology.  He also has a Bachelor’s of Arts degree in physics and a certificate in engineering and is a licensed engineer in California.  However, he is not a certified safety professional but considers himself a “human factor of specialists.”  He authored a report in which he concluded that “the large, red balls decorating the entrance to the Target Store were an attraction to children,” and, “as a large toy, with inherent slip and fall hazards that are not immediately obvious to children or adults, and serves no purpose that warranted the risk to the public.”

Target filed a motion for summary judgment, seeking a dismissal arguing that it did not breach any duty of care owed to the minor plaintiff.  Under New Jersey law, the common law does impose a duty of care on business owners to maintain safe premises for their customers. 

The Court found that there was “no evidence that the bollard was improperly installed, that it had a defect, that it was dangerously slippery, or that it was defectively designed.”  Further, the Court noted that there was no contention that the bollard violated any codes or standards.  While it was spherical, the Court commented that “everything has to have some shape, and there is no evidence that this shape was more dangerous than, say, a cube or some sort of stanchion.” 

Further, the District Court stated that there was no evidence that Target had either constructive or actual notice that the bollard posed an unacceptable danger. 

The plaintiffs relied on their experts’ contentions that children by their very nature would be attracted to objects that resemble toys, such as these bollards, which resemble red balls.  The Court noted that while one could sympathize with an injured child, “it cannot be said that this injury arose from an inherently dangerous condition that created an unreasonable risk of harm.”  Further, the Court noted that the danger was “surely obvious” to plaintiffs.

Accordingly, the District Court found that the plaintiffs’ claims fail for obviousness.  The Court noted that the danger of falling should be obvious, perhaps even to a child, but certainly to the adult caring for him.  The aunt admitted during her deposition that she watched and interacted with Vince as he played on the bollard.  Therefore, the Court found that “even if the conditions noted could be considered dangerous, no reasonable factfinder could conclude that plaintiff was unaware of those conditions.”

Hence, the District Court found that the plaintiff failed to establish that Target breached a duty to exercise reasonable care and grant summary judgment in Target’s favor.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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