Trachtman & Trachtman, LLP Wins MSJ for Target

Facts: On December 11, 2009, after entering the Aliso Viejo Target store with her husband and two small children, Plaintiff was walking along the main aisle when she allegedly and suddenly slipped and fell on some loose pieces of popcorn. Approximately two (2) to eight (8) minutes prior to the fall, a Target Team Member had walked through the fall location and stated that there had been no popcorn on the floor during her pre-incident “inspection.” Plaintiff allegedly had become recently pregnant prior to her fall. Plaintiff claimed that the force associated with the fall caused her to sustain a spontaneous abortion/fetal demise. Plaintiff also claimed soft tissue injuries to her low back.

Ben Trachtman, with the assistance of Kelli Trachtman, defended this matter. On the damages front, we had garnered the necessary proof to disprove and defeat Plaintiff’s fetal demise claim. We obtained evidence and expert testimony from the emergency room physician that Plaintiff was not pregnant at the time of the incident.

As for liability, relying on the two (2) to eight (8) minutes prior “inspection”, Kelli Trachtman took on the primary role of filing a Federal Court MSJ on the basis that Plaintiff could not establish that Target had actual or constructive notice of the popcorn debris. Plaintiff opposed the motion primarily relying on an oft-used “expert” to state that Target failed to comply with industry standards requiring sweep sheets and/or specifically documenting the “inspection” relative to the subject fall location. Accordingly, Target’s self-serving Team Member testimony could not meet Target’s purported burden of proof that it had no notice.

Outcome: In November, 2012, U.S. District Court Judge James Selna granted Target’s MSJ and held that it was Plaintiff’s burden of proof to establish notice and that Plaintiff did not produce any evidence in support of her notice burden. The Court rejected Plaintiff’s expert declaration and found that said declaration “erroneously asserted that sweep sheets were required.”