Rayburn et al v. Wal-Mart Stores, Inc et al

Filing 23

MEMORANDUM OPINION AND ORDER directing as follows: (1) the Wal-Mart's 15 MOTION for Summary Judgment is GRANTED; (2) all remaining deadlines and hearings in this matter, including the 9/10/2009 and the 10/19/2009 trial, shall be TERMINATED; (3) a separate judgment will be entered consistent with this memorandum opinion and order. Signed by Hon. Chief Judge Mark E. Fuller on 9/4/09. (djy, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION N O R M A J. RAYBURN AND G E N E T. RAYBURN, P l a i n t if f s , v. W A L -M A R T STORES, INC., et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

C A S E NO. 3:08-cv-314-F

M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION P lain tiff Norma Rayburn ("Rayburn") and her husband Gene T. Rayburn bring this a c tio n against Defendants Wal-Mart Stores, Inc. and Wal-Mart Stores East, L.P. (collectively " W a l-M a rt" ) alleging that Rayburn was injured by a fall caused by Wal-Mart's negligence w ith respect to the premises at one of its retail store.1 This cause is before the Court on the D e f en d a n t's Motion for Summary Judgment (Doc. #15). The Court has reviewed the s u b m is s io n s of the parties and finds that, for the reasons set forth below, the motion is due to be GRANTED. I I . JURISDICTION AND VENUE W a l-M a rt removed this case to this Court from the Circuit Court of Russell County, A la b a m a . Subject matter jurisdiction over Plaintiffs' claim is proper under 28 U.S.C. §

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Rayburn's husband's claim is for loss of consortium.

1 3 3 2 .2 The parties do not contest personal jurisdiction or venue, and the Court finds a d e q u ate allegations in support of both. I I I . STANDARD OF REVIEW U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). The party asking for summary judgment "always bears th e initial responsibility of informing the district court of the basis for its motion, and id e n ti fyin g those portions of `the pleadings, depositions, answers to interrogatories, and a d m is s io n s on file, together with the affidavits, if any,' which it believes demonstrate the a b se n c e of a genuine issue of material fact." Id. at 323. The movant can meet this burden b y presenting evidence showing there is no dispute of material fact, or by showing the nonm o v in g 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 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to

Wal-Mart is incorporated in Delaware with its principal place of business in A rk a n sa s. The Plaintiffs are citizens of Alabama. Although Plaintiffs' Complaint contains n o demand for a specific amount of damages, Plaintiffs' counsel have sent a demand letter to Wal-Mart claiming medical expenses in excess of $208,000. (Doc. #1). 2

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in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u st do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of th e non-movant and must draw all justifiable inferences from the evidence in the non-moving p a rty's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). After the n o n m o v in g party has responded to the motion for summary judgment, the court must grant s u m m a r y judgment if there is no genuine issue of material fact and the moving party is e n title d to judgment as a matter of law. See Fed. R. Civ. P. 56(c). IV. FACTS T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the lig h t most favorable to the non-moving party, establish the following facts. On Saturday, April 15, 2006, Rayburn and her husband went to a Wal-Mart store lo c a te d in Phenix City, Alabama. They dropped her husband's truck off at the automotive s e c tio n of Wal-Mart to get its oil changed and entered the store through the Tire Express L u b e entrance. On this date, it is undisputed that the weather was sunny and dry. f u rth e r undisputed that on this date, the store was well-lit and busy. Rayburn and her husband shopped for about two hours. Rayburn was wearing flat It is

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ru b b e r soled sandals commonly known as "flip flops." Rayburn stopped to look at a bin of s o m e stuffed Easter bunnies. She picked up one of the bunnies and began to walk towards h e r husband who was standing near the cart some distance away. Rayburn passed a large f o u r-w a y display rack and turned right passing between that rack and a customer service m a n a g er's podium. Rayburn's feet suddenly slipped out from under her, and she fell to the w h ite tiled floor behind the customer service podium. Prior to falling, Rayburn, who admits th a t she could see fine on this date, had not seen anything on the floor. Wal-Mart's security c a m e ra s recorded images of the incident, although the camera angle does not allow an u n o b s tru c te d view of the area where Rayburn lost her footing. After the fall, Rayburn's husband rushed over and helped Rayburn up off the floor. A Wal-Mart employee provided some assistance in this endeavor. At this time, Rayburn and h e r husband have testified that they saw what appeared to be a puddle of clear liquid on the f lo o r.3 It is undisputed that there were no cart track marks, footprints, or black marks in or a ro u n d the puddle. After falling Rayburn had no trouble seeing the puddle on the floor, but s h e had not seen it before the fall. Neither Rayburn, nor her husband have any idea how the liq u id got on the floor. Neither Rayburn, nor her husband have any idea how long the liquid h a d been on the floor prior to the time of Rayburn's fall. It is also undisputed that the fall and the puddle were located very near the customer

For purposes of this motion, the Court has credited this testimony although the video rec o rdin g of the incident does not appear to show them looking at the area where Rayburn lo s t her footing during and after the time her husband helped her to her feet. 4

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s e rv ic e podium, but that immediately before the fall the Wal-Mart employee stationed at that p o d ium had her back to the area of the puddle. She was counting out change for a cashier. T h a t employee, Sheree Scott ("Scott") denies having seen anything on the floor that might h a v e caused a customer to fall in the time period immediately before this accident. Scott was a t the time working as the Customer Service Manager. Her job duties as Customer Service M a n a g er required her to walk back and forth between the front check out stations and the c u sto m e r service podium. It is undisputed that four to five minutes before the accident, Scott w a lk e d by the area where the accident later occurred. Between the time she walked by the a re a and to the customer service podium and Rayburn's fall, Scott did not turn around and lo o k at the area on the floor where Rayburn later slipped. Prior to Rayburn's fall, no one re p o rte d to Scott that there was anything on the floor in that area. After Rayburn's fall, it is u n d is p u te d that Scott wiped the liquid off the floor with a paper towel another employee b ro u g h t to the area. It is undisputed that every Wal-Mart employee is in charge of maintenance, which in c lu d e s cleaning spills from the floor. It is undisputed that people working for this WalM a rt store routinely inspect the floors in the area where they are working. It is undisputed th a t every hour the maintenance team for Wal-Mart goes up and down the aisles checking th e floors. When she fell, Rayburn aggravated a prior injury to her spine. She needed extensive m e d ic a l treatment, including an additional back surgery. Rayburn's quality of life has been

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im p a ire d since the fall. Her husband also has been injured as the fall has affected their life a s a couple and caused him to have to take on more responsibility in the home. V. DISCUSSION U n d e r Alabama law,4 the elements of negligence in a premises liability case "are the s a m e as those in any tort litigation: duty, breach of duty, cause-in-fact, proximate or legal c a u se , and damages." Sessions v. Nonnenmann, 842 So. 2d 649, 651(Ala. 2002) (citations a n d quotations omitted). Under Alabama law, a store is "under a duty to exercise reasonable c a re to provide and maintain reasonably safe premises" for the use of its customers. Maddox v . K-Mart Corp., 565 So. 2d 14, 16 (Ala. 1990). Accord, Williams v. Wal-Mart Stores, Inc., 5 8 4 F. Supp. 2d 1316 (M.D. Ala. 2008) (Thompson, J). "A store is not an insurer of a c u sto m e r's safety and is liable only if it negligently fails to keep the premises in a reasonably s a f e condition." Williams, 584 F. Supp. 2d at 1319 (citing Maddox, 565 So. 2d at 16). In the c o n te x t of a slip-and-fall case involving a puddle in a store, a plaintiff must prove one of th re e things: (1) that the defendant had actual notice that the puddle was on the floor; (2) that th e puddle had been on the floor for a sufficiently long period of time so that the store had c o n stru c tiv e notice of the hazard; or (3) that the store was otherwise delinquent in failing to d is c o v e r and remove the puddle of water. See, e.g., Williams, 584 F. Supp. 2d at 1319; M a d d o x , 565 So. 2d at 15; Cox v. Western Supermarkets, Inc., 557 So. 2d 831, 832 (Ala. 1 9 8 9 ); Richardson v. Kroger Co., 521 So. 2d 934, 935-36 (Ala. 1988).

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The substantive law of Alabama governs this lawsuit. 6

W a l-M a rt argues that summary judgment is appropriate because Plaintiffs have failed to produce sufficient evidence from which a reasonable jury could find that it had any actual o r constructive notice of the of any defective condition at the Wal-Mart store or that it was o th e rw is e delinquent in failing to discover and remove the puddle.5 In response, Plaintiffs c o u n te rs that there is sufficient evidence before the Court to create a genuine issue of m a te ria l fact as to whether Wal-Mart had constructive notice of the hazard.6 Despite making th is argument, Plaintiffs rely on a series of cases recognizing an exception to the requirement o f proving notice. Under Alabama law, where the store owner or its employees have a f f irm a tiv e ly created the dangerous condition, the plaintiff need not introduce evidence that t h e owner had actual or constructive notice of the hazard; under such circumstances, the c o u rts presume notice. There is no evidence before this Court from which a reasonable fact f in d e r could determine that Wal-Mart or its employees affirmatively created the dangerous c o n d itio n ; consequently, Plaintiffs are not excused from their obligation to establish actual o r constructive notice. "In a slip-and-fall case, a plaintiff may prove constructive notice through evidence

Wal-Mart also seeks summary judgment on the ground that the hazard that caused th e fall was an open and obvious hazard which should have been seen by Rayburn in the e x e rc is e of ordinary care for her own personal safety. The Court need not and does not a d d re s s this contention to resolve the motion before the Court. Plaintiffs make no attempt to argue either that Wal-Mart that should be held liable b e c au s e it had actual notice of the hazard or because it was otherwise delinquent in failing to discover and remove the puddle. Indeed, the evidence before this Court would not support e ith e r such theory of the case. 7
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te n d in g to show a puddle or condition had been present for a sufficient period of time that th e defendant should have been aware of its presence." Williams, 584 F. Supp. 2d at 1319 (c itin g Cash v. Winn-Dixie Montgomery, Inc., 418 So. 2d 874, 875 (Ala. 1982) and Maddox, 5 6 5 So. 2d at 16). This does not mean that a plaintiff must present direct evidence as to the le n g th of time that the substance remained on the floor, rather a plaintiff may rely on c irc u m s ta n tia l evidence from which a reasonable jury could infer the length of time. Id. For e x a m p le , the plaintiff may offer evidence that the substance was "dirty, crumpled, or mashed, o r has some other characteristic which makes it reasonable to infer that the substance has b e e n on the floor long enough to raise a duty on the defendant to discovery and remove it." W illia m s, 584 F. Supp. 2d at 1319 (citing Cash, 418 So. 2d at 875). To show that a d e f en d a n t had constructive notice, "the plaintiff must present evidence about the source of the substance that caused the slip and fall and not rely on `speculation, conjecture or guess.'" R h o d e s v. United States of America, No. 2:06cv554-WKW, 2007 WL 2710385, at *3 (M.D. A la . Sept. 13, 2007). Absent evidence from which a reasonable jury could draw an inference that Wal-Mart had constructive notice of the condition which caused Rayburn's fall, there c a n be no finding that Wal-Mart breached its duty to Rayburn, and no prima facie case can b e established. See Tidd v. Wal-Mart Stores, Inc., 757 F. Supp. 1322, 1324 (N.D. Ala. 1991). H e re , Plaintiffs offer no evidence tending to show the puddle had been on the floor f o r any amount of time greater than mere moments. The undisputed testimony is that the p u d d le was clear and free of tracks. Moreover, based on the testimony before this Court the

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lo n g e s t period of time that the substance could have been present is four or five minutes. T h is length of time alone is insufficient to support a jury finding that Wal-Mart had c o n s tru c tiv e notice. See, e.g., Ex parte Wal-Mart Stores, Inc., 806 So. 2d 1247 (Ala. 2001); H o s e v. Winn Dixie Montgomery, Inc., 658 So. 2d 403 (Ala. 1995). Moreover, to the extent th a t Plaintiffs contend that the presence of Scott in the vicinity where she fell is sufficient to c r e a te a jury question as to Wal-Mart's negligence, the Court notes that "[t]here is no case la w to support the argument that simply having employees in the vicinity provides evidence o f negligence." Williams, 584 So. 2d at 1320. In the end, the record before this Court compels the conclusion that Plaintiffs have f a ile d to offer evidence raising a genuine issue of material fact warranting trial on whether W a l- M a r t had constructive notice of the puddle. This is an essential element of Plaintiffs' c la im s . Therefore, because plaintiffs have presented no facts either establishing this element o r showing that there is a genuine issue as to material facts concerning this element, summary ju d g m e n t is due to be GRANTED in favor of Wal-Mart on all of Plaintiffs' claims. VII. CONCLUSION F o r the reasons stated above, it is hereby ORDERED as follows: 1 . The Wal-Mart's Motion for Summary Judgment (Doc. # 15) is GRANTED. 2 . All remaining deadlines and hearings in this matter, including the September 10, 2 0 0 9 pretrial and the October 19, 2009 trial, shall be TERMINATED. 3 . A separate final judgment will be entered consistent with this Memorandum

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O p inion and Order. D O N E this 4th day of September, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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