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O'Reilly v. BJ'S Wholesale Club, Inc.

United States District Court, D. Connecticut

March 15, 2018

JOHN T. O'REILLY, Plaintiff,
v.
BJ'S WHOLESALE CLUB, INC. Defendant.

          RULING ON MOTIONS FOR SUMMARY JUDGMENT

          MICHAEL P. SHEA, U.S.D.J.

         Plaintiff John T. O'Reilly brought this action against Defendant BJ's Wholesale Club, Inc. after suffering an eye injury while shopping at a BJ's Wholesale Club store. The parties have each moved for summary judgment with respect to Plaintiff's breach of contract and Connecticut Unfair Trade Practices Act (“CUTPA”) claims.

         For the reasons discussed below, I GRANT Defendant's motion for summary judgment and DENY Plaintiff's motion for summary judgment.

         I. FACTUAL BACKGROUND

         Plaintiff, who is pro se, filed this lawsuit on August 9, 2016 and filed an Amended Complaint on November 30, 2016, asserting claims for breach of contract, negligence, violation of CUTPA, and including a count setting forth “class action allegations.” (ECF No. 1; ECF No. 19.) On May 8, 2017, while Defendant's motion to dismiss the Amended Complaint was pending and the parties were conducting discovery, Plaintiff filed a motion for summary judgment on all of his claims. (ECF No. 35.)

         The Court granted in part and denied in part Defendant's motion to dismiss, dismissing the negligence claim as time-barred but allowing Plaintiff's breach of contract and CUTPA claims to proceed. (ECF No. 37.) Defendant did not respond to Plaintiff's motion for summary judgment, but filed its own motion for summary judgment on December 15, 2017. (ECF No. 44.) The following facts are taken from the parties' respective Local Rule 56(a) Statements and the exhibits. (ECF No. 35-2; ECF No. 46.) The facts are undisputed unless otherwise stated.

         Plaintiff was a member of BJ's Wholesale Club when he went shopping at Defendant's North Haven store on August 8, 2014. (ECF No. 35-2 ¶¶ 1-2; ECF No. 46 ¶ 3.) While Plaintiff was checking out at the cash register, the cashier dropped two bottles of cleaning solution into the shopping cart in front of Plaintiff. (ECF No. 35-2 ¶ 2.) One of the bottles broke and splashed stain remover into Plaintiff's eyes and onto his face and clothes. (Id.) Chris Glenn, the store manager, typed up an accident report about the incident while Plaintiff sat on a bench in the store. (Id. ¶ 4.) Mr. Glenn promised to send Plaintiff a copy of the report. (Id.)

         On August 23, 2014, Plaintiff returned to the store and asked Mr. Glenn why he had not yet received the accident report. (Id. ¶ 5.) Mr. Glenn responded that he was told by his superiors that he was not allowed to send a copy of the report to Plaintiff. (Id.) When Plaintiff asked why he had not received a letter informing him that he would not receive the report, Mr. Glenn apologized and promised to send the letter. (Id.) Plaintiff never received the letter. (Id. ¶ 6.) When Plaintiff returned to the store for a third time to ask why he had not received a letter, Mr. Glenn told Plaintiff that “he was just not allowed to.” (Id.)

         In the two years since the accident, Plaintiff has been to the emergency room several times as a result of falls caused by blurred vision. (Id. ¶ 7.) Plaintiff has fallen over half a dozen times up or down steps, causing injury to his right hip, knee, left foot, and back. (Id.) Plaintiff's ability to walk, eyesight, and heart have been adversely affected. (Id.)

         Mr. Glenn stopped working for Defendant in January 2017. (Id. ¶ 8.) In an affidavit submitted in support of Plaintiff's motion for summary judgment, Mr. Glenn stated that he had in fact created an accident report using his computer, and that the report was electronically sent to Defendant, but that he was never able to send Plaintiff a copy of the report. (ECF No. 36.)

         A Membership Services Agreement (“the Agreement”) in effect in August 2014 governed Plaintiff's relationship with Defendant at the time of the accident. (ECF No. 46 ¶ 11; see also ECF No. 45-1 at 6-8.) It is Defendant's internal and long-standing policy to use internal investigation reports to investigate claims of injury at its stores, and to decline to provide copies of internal investigation reports until the reports are requested during the discovery process of a lawsuit. (ECF No. 46 ¶¶ 8-9.) Plaintiff did not request a copy of the incident report during discovery in this lawsuit. (Id. ¶ 10.)

         II. LEGAL STANDARD

         “Summary judgment is appropriate only if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (internal quotation marks and citations omitted). “In making that determination, a court must view the evidence in the light most favorable to the opposing party.” Id. (quotation marks omitted). On summary judgment a court must “construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Caronia v. Phillip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013). The moving party bears the burden of demonstrating that no genuine issue exists as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). If the moving party carries its burden, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011).

         Where one party is proceeding pro se, the court reads the pro se party's papers liberally and interprets them “to raise the strongest arguments that they suggest.” Willey v. Kirkpatrick, 801 F.3d 51, ...


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