Cook v. Wal-Mart Stores, Inc.
MEMORANDUM OPINION AND ORDERED that Wal-Mart's 13 Motion for Summary Judgment is DENIED. Signed by Chief Judge William Keith Watkins on 6/16/2011. (Attachments: # 1 Civil Appeals Checklist)(wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
WAL-MART STORES, INC.,
) CASE NO. 1:10-CV-574-WKW [WO]
MEMORANDUM OPINION AND ORDER
The setting of one of Gary Larson’s The Far Side comics is a vast expanse of ice,
presumably in Antarctica, where a prone penguin looks upon the cause of its proneness: a
very, very unfortunately placed banana peel. Unlike most banana peel comics and cartoons,
the hilarity of Mr. Larson’s sketch is not in the slapstick acrobatics of the slip or the oftenaccompanying high-pitched sound effect. Rather, Mr. Larson’s humor is directed at the
absurdity of the situation. How did a banana peel find its way to Antarctica? How on earth
(Antarctica, specifically) did the unfortunate penguin not see the dark shape of the rotting
peel against the flat, barren, white surface? Or perhaps the sketch invoked the quasiscientific principle known as Murphy’s Law. In other words, the banana peel was there, so
something was bound to slip on it.
In this case, the banana was there, in the vast expanse of the Wal-Mart parking lot,
and Plaintiff slipped on it. She filed a Complaint (Doc. # 1, Attach. 4), and Defendant WalMart Stores East, L.P. (“Wal-Mart”) removed the case to this court (Doc. # 1). Now pending
is Wal-Mart’s Motion for Summary Judgment, which is accompanied by a brief and
evidentiary submissions. (Docs. # 13-14.) Plaintiff filed a response in opposition. (Doc. #
18.) Upon careful consideration of counsels’ arguments, the relevant law, and the record as
a whole, the court finds that Wal-Mart’s motion is due to be denied.
I. JURISDICTION AND VENUE
The court exercises subject matter jurisdiction pursuant to 28 U.S.C. §§ 1332 and
1441(a). The parties do not contest personal jurisdiction or venue, and the court finds
adequate allegations in support of both.
II. STANDARD OF REVIEW
“Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir.
2007) (per curiam) (citation and internal quotation marks omitted); see Fed. R. Civ. P. 56(a)
(“The court shall grant summary judgment if the movant shows there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law.”).
The party moving for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of [the
record, including pleadings, discovery materials and affidavits], which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence indicating
there is no dispute of material fact or by showing that the nonmoving party has failed to
present evidence in support of some element of its case on which it bears the ultimate burden
of proof. Id. at 322-24.
If the movant meets its evidentiary burden, the burden shifts to the nonmoving party
to establish, with evidence beyond the pleadings, that a genuine issue material to each of its
claims for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991);
Fed. R. Civ. P. 56(c). What is material is determined by the substantive law applicable to the
case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Lofton v. Sec’y of
the Dep’t of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) (“Only factual
disputes that are material under the substantive law governing the case will preclude entry
of summary judgment.”). Furthermore, “[t]he mere existence of some factual dispute will
not defeat summary judgment unless that factual dispute is material to an issue affecting the
outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th
Cir. 2003) (per curiam) (citation and internal quotation marks omitted).
A genuine issue of material fact exists when the nonmoving party produces evidence
that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498
F.3d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).
However, if the evidence on which the nonmoving party relies “is merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 242
(citations omitted). “Speculation does not create a genuine issue of fact . . . .” Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (emphasis in original). Likewise, “[a]
mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a
motion for summary judgment[,]” Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.
2004), and the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Conclusory allegations based on subjective beliefs are
likewise insufficient to create a genuine issue of material fact and do not suffice to oppose
a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997)
(per curiam) (A plaintiff’s “conclusory assertions . . . in the absence of supporting evidence,
are insufficient to withstand summary judgment.”).
Hence, when a nonmovant fails to set forth specific facts supported by appropriate
evidence sufficient to establish the existence of an element essential to his case and on which
the nonmovant will bear the burden of proof at trial, summary judgment is due to be granted
in favor of the moving party. Celotex Corp., 477 U.S. at 323 (“[F]ailure of proof concerning
an essential element of the nonmoving party’s case necessarily renders all other facts
Thus, in cases where the evidence before the court is admissible on its face or can be
reduced to admissible form and indicates there is no genuine issue of material fact, and where
the party moving for summary judgment is entitled to it as a matter of law, summary
judgment is proper. Celotex Corp., 477 U.S. at 323-24 (summary judgment appropriate
where pleadings, evidentiary materials and affidavits before the court show there is no
genuine issue as to a requisite material fact).
On summary judgment, the facts must be viewed in the light most favorable to the
non-movant. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). Hence, “‘facts, as
accepted at the summary judgment stage of the proceedings, may not be the actual facts of
the case.’” Id. (quoting Priester v. City of Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir.
The submitted evidence, construed in the light most favorable to Plaintiff, establishes
the following facts.
Plaintiff had just purchased some office supplies from the Enterprise, Alabama WalMart in the late afternoon of July 9, 2008. (Cook Dep. 7-8, 11 (Doc. # 14, Ex. A).) After
placing her purchases in her vehicle, Plaintiff acted as many shoppers do not. She
courteously chose to push her empty shopping cart over to the cart corral, rather than
abandon it in the middle of the parking lot and allow it to become a hazard and impediment
to other shoppers. No good deed goes unpunished. Ironically, Plaintiff’s courtesy caused
her a cruel twist of fate, among other twists, when she encountered someone else’s
discourtesy on her trek back to her car: the subject banana. Like the unlucky penguin,
Plaintiff found herself on the pavement, injured.
“The duty owed to an invitee by [a business] is the exercise of ordinary and reasonable
care to keep the premises in a reasonably safe condition.” Lilya v. Greater Gulf State Fair,
Inc., 855 So. 2d 1049, 1054 (Ala. 2003) (internal quotations marks, brackets and citations
omitted). As the Alabama Supreme Court has reiterated, “‘[t]he storekeeper is not an insurer
of the customers’ safety but is liable for injury only in the event he negligently fails to use
reasonable care in maintaining his premises in a reasonably safe condition.’” Dolgencorp,
Inc. v. Hall, 890 So. 2d 98, 101 (Ala. 2003) (quoting Cash v. Winn-Dixie of Montgomery,
Inc., 418 So. 2d 874, 876 (Ala. 1982)). For negligence to attach, the business must have “had
or should have had notice of the defect before the time of the accident.” Hale v. Sequoyah
Caverns & Campgrounds, Inc., 612 So. 2d 1162, 1164 (Ala. 1992) (citation omitted). This
is so because “‘[t]he entire basis of a [business’s] liability rests upon [its] superior knowledge
of the danger which causes the [customer’s] injuries.” Fowler v. CEC Entm’t, 921 So. 2d
428, 432-33 (Ala. Civ. App. 2005) (quoting Denmark v. Mercantile Stores Co., 844 So. 2d
1189, 1194 (Ala. 2002)). If the business (or one of its employees) creates the dangerous
condition, then the business is deemed to have actual notice of it. Nelson v. Delchamps, Inc.,
699 So. 2d 1259, 1261 (Ala. Civ. App. 1997). If, as in this case, there is no evidence that the
business has created the dangerous condition, notice can be proved by showing “(1) that the
substance slipped upon had been on the [parking lot] a sufficient length of time to impute
constructive notice . . .; or (2) that [the business] had actual notice that the substance was on
the [parking lot]; or (3) that [the business] was delinquent in not discovering and removing
the substance.” Dunklin v. Winn-Dixie of Montgomery, Inc., 595 So. 2d 463, 464 (Ala. 1992)
(quoting Maddox v. K-Mart Corp., 565 So. 2d 14, 16 (Ala. 1990)). However, if the plaintiff
cannot prove notice in any of these ways, then “that superior knowledge [of the business] is
lacking, . . . [and] the [business] cannot be held liable.’” Fowler v. CEC Entm’t, 921 So. 2d
428, 432-33 (Ala. Civ. App. 2005) (quoting Denmark v. Mercantile Stores Co., 844 So. 2d
1189, 1194 (Ala. 2002)).
In this case, Wal-Mart argues that it is entitled to summary judgment because there
is no genuine issue of material fact that it had any actual or constructive notice, or otherwise
acted delinquently in failing to discover and remove the potassium-rich hazard from its
parking lot. See Maddox, 565 So. 2d at 16. The Millers, who found the prone Plaintiff, and
Plaintiff herself, all conceded in their depositions that they knew of no evidence suggesting
that Wal-Mart had actual notice of the hazard. (Cook Dep. 19; S. Miller Dep. 28 (Doc. # 14,
Ex. B); T. Miller Dep. 14-15 (Doc. # 14, Ex. C).) Moreover, there is no evidence in the
record that Wal-Mart otherwise acted delinquently regarding, for example, its monitoring of
the parking lot for potential hazards. See Maddox, 565 So. 2d at 16.1
Thus, Wal-Mart’s motion for summary judgment turns on whether there is a genuine
issue of material fact that “the [banana] . . . had been on the [parking lot] for a sufficient
length of time to impute constructive notice to [Wal-Mart].”2 Id. The Alabama Supreme
Court has held that
Wal-Mart is noticeably silent on its rules, employee instructions, procedures and
practices with regard to maintaining the safety of the subject lot.
“[A] storekeeper’s duties with regard to the parking lot are essentially the same as those that
relate to the inside of the store.” Louis Lehr, Premises Liability § 51:7 (3d ed. 2002). However, the
application of the duty of ordinary and reasonable care in the parking lot may be more deferential to the
business. Kaufman v. State Street Ltd. P’Ship, 522 N.W.2d 249, 253-54 (Wis. Ct. App. 1994)
(distinguishing context of hazards outside the store versus inside); Rutledge v. Brookshire Grocery Co.,
523 So. 2d 914, 916-17 (La. Ct. App. 3d Cir. 1988) (explaining that under Louisiana law the store patron
has an increased “duty of awareness” when walking outside the store versus inside); see also City Council
of Montgomery v. Wright, 72 Ala. 411 (Ala. 1882) (explaining that a finding of constructive notice of a
hazard relates to the hazard’s notoriety).
it is permissible to allow a jury to infer the length of time from the nature and
condition of the substance. This has been allowed where the substance is
dirty, crumpled, mashed, or has some other characteristic which makes it
reasonable to infer that the substance has been on the [ground] long enough to
raise a duty
on the defendant to discover and remove it.
Cash, 418 So. 2d at 876 (citing S.H. Kress & Co. v. Thompson, 103 So. 2d 171 (Ala. 1957)).3
However, if the summary judgment evidence requires an inference based upon speculation
as to the length of time the banana was on the parking lot, then Wal-Mart is entitled to
summary judgment. See Cordoba, 419 F.3d at 1169 (“Speculation does not create a genuine
issue of fact . . . .”).
Plaintiff had not noticed the banana on her way into the store or at any point prior to
her fall, nor had either of the two witnesses, Sandra Miller and her granddaughter Tiquaysha
Miller. (Cook Dep. 19; S. Miller Dep. 25-26; T. Miller Dep. 10-12.) Thus, the only
evidence as to how long the banana had been deposited on the parking lot is Plaintiff’s and
the Millers’ testimony concerning the condition of the banana itself after Plaintiff had already
slipped on it.3 Based on her viewing of Tiquaysha Miller’s pictures, Plaintiff described the
It is noteworthy to point out the Alabama summary judgment standard under which Cash and
S.H. Kress & Company were decided. Both cases pre-date Alabama’s abolition of the scintilla rule. See
Charles W. Gamble, 2 McElroy’s Alabama Evidence § 448.01 (5th ed. 1996); Ala. Code § 12-21-12(b).
Under federal procedural law governing summary judgment, “[a] mere scintilla of evidence in support of
the nonmoving party will not suffice to overcome a motion for summary judgment.” Young, 358 F.3d at
860. Although the court understands the above-quoted language from Cash to state Alabama substantive
law governing proof of constructive notice, it is important to note the evidentiary context in which that
case was decided.
Plaintiff never actually saw the banana itself. Rather, she saw only the banana pulp that was on
her leg, and she viewed now-lost pictures of the banana taken by Tiquaysha Miller at some point after the
incident. (Cook Dep. 18-19.)
banana as “black, rotten, [and] squashed[.]” (Cook Dep. 20.) Sandra Miller reported that it
was “[j]ust a smashed-up banana” that was both “yellow and black[.]” (S. Miller Dep. 2728.) Tiquaysha Miller concluded that the banana was “already smashed” and described it as
“yellow, [with] some brown on it, on one of the peel parts.” (T. Miller Dep. 12.)
The age of the banana alone does not make it “reasonable to infer” that the banana had
been there long enough to impute constructive notice. In F.W. Woolworth Co. v. Ney, the
business had a lunch counter near the back of the store that served banana splits. 194 So.
667, 667 (1940). The plaintiff, who was “some distance away” from the lunch counter by
the hosiery department, slipped on a banana peel that he described to the jury as “black, dark
– real dark. I wouldn’t say direct black but real dark brown.” Id. The plaintiff also testified
that the peel “appeared to be dirty.” Id. The plaintiff was awarded a judgment on this
evidence alone. On appeal, the Supreme Court reversed the judgment, stating that
there is absolutely no evidence tending in the slightest degree to show when
or how the banana peel came to be on the floor . . . . No evidence which tended
in the remotest way to show that this offending instrumentality had been on the
floor for such length of time as to charge this defendant . . . with [constructive]
knowledge of its presence. For ought appearing to the contrary the banana
peel may have been dropped upon the floor only a few minutes or seconds
before the accident . . . .
Id. at 669. The teaching to be extracted from Ney is that (even under the old scintilla
standard) the age of a banana peel alone provides an insufficient amount of evidence of
constructive notice to allow the case to go to the jury. This is especially true in the parking
In the parking lot of a business, the “offending instrumentality” literally could have
come from anywhere, and found its way to the pavement in any condition. Plaintiff, in
arguing that the “banana [had] to have been on the ground in the parking lot for a sufficient
period of time to allow it to rotten [sic] and turn black” because “Wal-[M]art typically does
not sell ‘rotten bananas,’” appears to ignore the infinite possibilities as to the origin of the
banana. In other words, the age of a perishable good found outside the store relays very little
in the way of circumstantial evidence regarding how long it was there because there can be
no presumption that it came fresh from the store. See Great Atl. & Pac. Tea Co. v. Bennett,
103 So. 2d 177, 178-79 (Ala. 1958) (emphasizing that when the offending substance is
“vegetable matter [found] in a grocery store[,]” there is “a scintilla of evidence” to support
constructive notice); accord Foodtown Stores, Inc. v. Patterson, 213 So. 2d 211, 216 (Ala.
1968) (“Each case should be decided upon its specific facts.”).
However, under the evidentiary rule elaborated in Cash, the fact that a substance has
been “dirtied, crumpled, mashed, or has some other [like] characteristic” may present a
triable issue of constructive notice. Plaintiff appears to argue that the banana had been run
over by a car (or smashed in some other way) prior to her stepping on it, and the Millers all
testified the banana had been mashed or squashed, thus indicating that it had been in the
parking lot for a period of time. (Pl.’s Br. 5 (Doc. # 18).) Plaintiff specifically points to
Sandra Miller’s deposition, wherein she testified that “maybe a car maybe would have ran
[over it].” (S. Miller Dep. 27.)
The Eleventh Circuit has made it clear that “mere conclusions and unsupported factual
allegations are legally insufficient to defeat summary judgment.” Sammons v. Taylor, 967
F.2d 1533, 1544 n.5 (11th Cir. 1992). However, the court is unable to reconcile Cash with
Woolworth and Bennett in the context of the facts of this case. The court is doubtful that the
Plaintiff’s claim will survive a Rule 50 motion for judgment as a matter of law, but finds that
it will be necessary to hear the evidence of constructive notice before rendering an opinion.
In short, “the better course would be to proceed to a full trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); accord Lind v. United Parcel Serv., Inc., 254 F.3d 1281,
1285 (11th Cir. 2001).
Accordingly, it is ORDERED that Wal-Mart’s Motion for Summary Judgment (Doc.
# 13) is DENIED.
DONE this 16th day of June, 2011.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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