United States District Court, D. Connecticut
JOHN T. O'REILLY, Plaintiff,
BJ'S WHOLESALE CLUB, INC. Defendant.
RULING ON MOTIONS FOR SUMMARY JUDGMENT
MICHAEL P. SHEA, U.S.D.J.
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.
reasons discussed below, I GRANT Defendant's motion for
summary judgment and DENY Plaintiff's motion for summary
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.)
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.
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.
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.)
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.)
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.)
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.)
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).
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,