Sabrina Corley v. Wal-Mart Stores East, LP

Filing

OPINION filed : AFFIRMED the judgment of the district court, decision not for publication. Damon J. Keith, Circuit Judge; Eric L. Clay, AUTHORING Circuit Judge and Helene N. White, Circuit Judge writing separate concurrence.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0002n.06
No. 15-5202
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SABRINA CORLEY,

FILED
Jan 04, 2016
DEBORAH S. HUNT, Clerk

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Plaintiff-Appellee,

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v.

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WAL-MART STORES EAST, LP,

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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE

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Defendant-Appellant.

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Before: KEITH, CLAY, and WHITE, Circuit Judges.
CLAY, Circuit Judge. Defendant Wal-Mart Stores East, LP (“Wal-Mart”) appeals the
district court’s denial of its renewed motion for judgment as a matter of law. This negligence
action brought pursuant to diversity jurisdiction, 28 U.S.C. § 1332(a), arises out of Plaintiff
Sabrina Corley’s (“Corley”) slip and fall at a Wal-Mart store in Antioch, Tennessee. For the
reasons that follow, we AFFIRM the district court’s judgment.
I.
On November 7, 2011, Corley entered Wal-Mart’s Antioch, Tennessee store with her
minor son. Video surveillance footage shows that at approximately 3:39:43 p.m., Wal-Mart
employee Katrina Smith walked down the main aisle of the store, passing the location where

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Corley would eventually fall. One minute later, at approximately 3:49:19 p.m., Corley is seen
walking down the main aisle of the store after having just slipped and fell on a puddle of water in
Aisle 6. After Corley reported her fall to Wal-Mart, store employees converged at the accident
site and proceeded to clean the spill. The clean-up efforts seen on the video indicate that the spill
covered a large area. Store employees confirmed that there was water on the floor at the accident
site.
Pursuant to Wal-Mart’s policy, if video surveillance captures an incident in the store,
Wal-Mart preserves footage from one hour before the incident until the incident occurs. Because
no camera captured Corley’s slip and fall, Wal-Mart preserved and produced video footage of
the corner of Aisle 6 from one hour before the incident was reported until one hour later. None
of the footage actually captured anything in Aisle 6, where Corley fell. Nor does the video show
how the water got on the floor. A Wal-Mart employee took photographs of the spill, but WalMart also failed to preserve those photographs.
Corley subsequently filed this diversity suit alleging that Wal-Mart was negligent in
failing to maintain safe premises at its Antioch store. Specifically, Corley alleged that Wal-Mart
had constructive notice of the spilled water, failed to clean it up, and she was injured as a result.
At the close of Corley’s case-in-chief, Wal-Mart moved for judgment as a matter of law pursuant
to Rule 50(a) of the Federal Rules of Civil Procedure. Wal-Mart argued that because the video
did not capture anything in Aisle 6, it was not possible to tell how long the water had been on the
ground without speculating.
The district court denied Wal-Mart’s motion and rejected its argument that the jury would
have to speculate in order to determine whether Wal-Mart had constructive notice. The district
court stated that the jury, after viewing the video, could make the determination that the water

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was on the floor longer than the time shown in the video. The district court pointed out that
because the video showed only the hour before the accident, the jury could reasonably conclude
that the spill was created at a time not shown in the video.
After the jury found Wal-Mart ninety percent at fault for the accident and awarded Corley
$525,000 in damages, Wal-Mart renewed its motion for judgment as a matter of law pursuant to
Rule 50(b) of the Federal Rules of Civil Procedure. The district court denied Wal-Mart’s
renewed motion for judgment as a matter of law, holding that Corley presented sufficient
evidence that Wal-Mart should have been aware of the hazardous condition.
II.
We review a district court’s denial of a renewed motion for judgment as a matter of law
de novo. Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007). When sitting in
diversity, we apply the substantive law of the forum state, in this case Tennessee. Morales v.
Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998).

Under Tennessee law, when

considering a motion for a directed verdict in a jury case, we “must consider the evidence most
favorably for the plaintiff, allow all reasonable inferences in plaintiff’s favor and disregard all
counteracting evidence, and, so considered, if there is any material evidence to support a verdict
for plaintiff, [we] must deny the motion.” City of Columbia v. C.F.W. Const. Co., 557 S.W.2d
734, 740 (Tenn. 1977).
In Tennessee, to succeed on a suit in negligence, the plaintiff must show (1) the
defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, (3) the plaintiff
suffered some injury or loss, (4) cause in fact, and (5) proximate cause. McClung v. Delta
Square Ltd. P’ship, 937 S.W.2d 891, 894 (Tenn. 1996). Additionally, to hold an owner or
operator of premises liable in negligence for a dangerous or defective condition on its premises,

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the plaintiff must show either (1) that the premises owner or operator caused the condition, or
(2) if not, “that the owner or operator had actual or constructive notice that the condition existed
prior to the accident.” Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004) (citing
Martin v. Washmaster Auto Ctr., U.S.A., 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996)).
“[C]onstructive notice can be established by proof that the dangerous or defective
condition existed for such a length of time that the defendant, in the exercise of reasonable care,
should have become aware of the condition.” Blair, 130 S.W.3d at 764 (citing Simmons v. Sears,
Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986)); see also Washmaster Auto Ctr.,
946 S.W.2d at 318. Additionally, a plaintiff can prove constructive notice through “a pattern of
conduct, a recurring incident, or a general or continuing condition indicating the dangerous
condition’s existence.” Blair, 130 S.W.3d at 765-66; see also Washmaster Auto Ctr., 946 S.W.2d
at 320. The recurring conduct or continuing condition must be specific to the location where the
incident at issue occurred. That is, notice of a general or continuing condition in one area of the
premises does not necessarily support a finding of constructive notice as to another area. See
Blair, 130 S.W.3d at 767; Martin v. Wal-Mart Stores, Inc., 159 F. App’x 626, 629-30 (6th Cir.
2005) (unpublished).
In this case, Corley proceeds under the constructive notice theory of liability. She claims
that the unsafe condition existed at the time that Smith walked by the accident site, and therefore
Wal-Mart should have known about it and fixed the problem. Corley argues that one conclusion
from the surveillance video is that the water was on the floor throughout the period of time
captured on tape, or so a reasonable jury could conclude. The district court accepted this
argument. Wal-Mart admits that if there was water on the floor when Smith walked by, then she

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should have noticed it and cleaned it up. But Wal-Mart denies that there was water on the floor
when Smith passed.
We see two plausible explanations as to what happened here. First, as Corley argues, the
puddle was on the floor when Smith walked right past the accident site. Second, as Wal-Mart
argues, the puddle was not on the floor when its employee walked by, and instead, was created
just moments before the accident. Corley must persuade us that a jury could reasonably find the
first explanation, rather than the second, more likely than not describes what occurred. This is
because if there are two or more plausible explanations as to how an event happened, and no one
more likely than the other, the explanations remain conjecture only. And conjecture alone is not
enough to prevail under Tennessee law. See, e.g., Hardesty v. Service Merchandise Co., Inc.,
953 S.W.2d 678, 682 (Tenn. Ct. App. 1997) (holding that “[w]here there is a complete absence
of proof as to when and how a dangerous condition came about, it would be improper to permit
the jury to speculate on these vital elements.”).
Corley probably would not have a case without the surveillance video. But that video far
from makes her case—its visual quality is not sufficient to determine whether there was any
water on the floor during the hour before the fall. And before the accident, numerous people,
including Corley herself, walked near the area of the spill. Not one person appeared to look
down, change directions, or otherwise show any signs of seeing a puddle. So, could a jury
conclude from that evidence that the water was more likely than not on the floor when Smith
walked by forty seconds earlier?
We find that yes, the surveillance video, coupled with the inferences drawn in Corley’s
favor, sufficiently made this a jury question. “Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of

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a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Thus, based upon what it
saw and heard in the courtroom, the jury was free to consider or reject Corley’s theory that the
water was on the floor throughout the period of time captured on tape. See Moran v. Al Basit
LLC, 788 F.3d 201, 204 (6th Cir. 2015) (holding that if a plaintiff’s evidence alone is sufficient
to create a genuine issue of material fact, then summary disposition as a matter of law is
inappropriate).
Moreover, inasmuch as it cannot be known how much weight the jury gave to their own
conclusions as derived from their viewing of the video, we cannot conclude as a matter of law
that the video quality is so poor that a reasonable factfinder would be unable to conclude that
none of the passing customers were responsible for the spill. And if the jury found that none of
the passing customers were responsible, a reasonable jury could have found that the puddle was
pre-existing and was present when Smith walked by, and Wal-Mart therefore should have known
about it. Under these circumstances, a motion for judgment as a matter of law in favor of WalMart is inappropriate.
III.
For the foregoing reasons, the judgment of the district court is AFFIRMED.

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HELENE N. WHITE, Circuit Judge, concurring. I join in the affirmance but write
separately to clarify several aspects of the record. Because this appeal concerns the sufficiency
of the evidence to support the verdict, an accurate account of the testimony is particularly
important. No evidence was presented at trial that Corley actually fell. But see Maj. Op. at 1, 2.
Corley’s complaint alleged, and she testified at trial, that while she was pushing her shopping
cart, her right foot slipped on water on the floor and she felt a pop in her knee. PID 8, 1156,
1164–66. Wal-Mart surveillance videos played for the jury show Corley’s right foot slipping
and her walking with a limp after the slip. See thirteen-second video titled “Actual Customer
Slip,” and video titled “One Hour Prior” at 3:39:00 to 3:40:30. The district court’s opinion
denying Wal-Mart’s motion for judgment as a matter of law correctly states that it was
undisputed at trial that Corley slipped and twisted her knee. PID 1397–98.
Additionally, contrary to the majority’s assertion that “none of the footage actually
captured anything in Aisle 6,” Maj. Op. at 2, Wal-Mart surveillance videos in the record captured
the portion of aisle six where Corley slipped and twisted her knee, and show it happening. Both
Corley’s counsel and Wal-Mart’s counsel stated in opening statement that Wal-Mart’s
surveillance videos captured Corley’s slip, PID 1037, 1049–50, and Wal-Mart’s memorandum in
support of its motion for judgment as a matter of law states, “The video shows the plaintiff slip
as she exits aisle six.” PID 751, 1402. The district court correctly stated that “both the slip and
employees’ efforts to clean up the spill were captured on videotape.” PID 1398.
Lastly, there is no record support for the majority’s statement that the water on which
Corley slipped covered “a large area.” Maj. Op. at 2. Corley testified that the water she slipped
on was about the size of a plate. PID 1194. Wal-Mart surveillance videos depict employees

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wiping up the spill at the end of aisle 6 and extending into the main aisle, but there was no
testimony that the spill itself covered a large area and the water cannot be seen on the videos.

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