Greene v. Wal-Mart Stores East L.P.

Filing 30

MEMORANDUM OPINION and ORDER, denying 20 MOTION for Summary Judgment filed by Wal-Mart Stores East L.P... Signed by Magistrate Judge John E Ott on 6/3/2016. (KAM, )

FILED
2016 Jun-03 PM 03:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FRENCHIE GREENE,
Plaintiff,
v.
WAL-MART STORES EAST, L.P., et
al.,
Defendants.

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Case No.: 2:14-cv-01684-JEO

MEMORANDUM OPINION AND ORDER
This case concerns a “slip and fall” accident occurring at a Wal-Mart store
located in Bessemer, Alabama. (Doc. 1 (Complaint)).1 Before the court is Defendant’s2
motion for summary judgment on Plaintiff’s claims of negligence and wantonness. (Doc.
12). The motion has been fully briefed and is properly under submission. For reasons
stated below, the court finds that the motion is due to be denied.
I.

BACKGROUND3
On September 13, 2012, Greene was at Defendant’s store with Brittany Mitchell

1

Citations to “Doc(s).____” are to the document numbers assigned by the clerk to the
pleadings, motions, and other materials in the court file, as reflected on the docket sheet.
2

The caption in this case lists numerous fictitious parties; however, the date for adding
parties has passed and Wal-Mart Stores East, L.P., is the only defendant in this action.
3

In deciding a motion for summary judgment, the court must view the evidence and all
factual inferences in the light most favorable to the party opposing the motion. See
Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1241 (11th
Cir. 2007) (observing that, in connection with summary judgment, a court must review
all facts and inferences in a light most favorable to the non-moving party). The factual
statements in this section of the court’s opinion do not represent actual findings of fact.
See In re Celotex Corp., 487 F.3d 1320, 1328 (11th Cir. 2007) (noting that “a summary
judgment proceeding ... by definition involves no findings of fact”).

to purchase a Power Wheel toy for his daughter and some groceries. (Greene Dep. at
130, 137-38).4 When Greene did not find the toy he was seeking, he and Ms. Mitchell
walked to the grocery department. (Id. at 147). Greene received a telephone call from
his girlfriend, who asked him to purchase some chicken, lettuce and salad dressing while
he was at the store. (Id. at 148, 173). As Greene walked “past the dairy aisle at the
beginning of the bakery aisle turning towards the meat aisle” he notice an undetermined
amount of water on the floor. (Id. at 155-59). He did not report the water to any WalMart associates. (Id. at 160). As Green and Ms. Mitchell walked down the meat aisle,
Greene received a second call from his girlfriend. Greene then proceeded towards the
chicken in the meat department. (Id. at 191-92). About that time, he noticed red spots
(purportedly meat blood) at various locations on the floor. (Id. at 204-15). The blood
spots had marks and dirt running through them as if shopping carts had run over and
through them. (Id. at 208-09, 271). The largest spot was bigger than a baseball and the
smallest spot was a mere drop. (Id. at 214). The spots extended from the meat counter
through the darker colored tile to the white tile in the aisle. (Id. at 215). Greene did not
report the blood on the floor to anyone despite the fact that there was a Wal-Mart
maintenance associate sweeping the floor on the other side of the aisle. (Id. at 227-28,
233).
After getting the chicken, Greene walked back toward the shopping cart. (Id. at
235). He was watching the floor so as not to step in the blood. (Id. at 208-09, 236).

4

Greene’s deposition is located in the record at document 21-1 and 28-2. The court has
used the deposition page numbers assigned by the court reporter for the pinpoint
references.
2

Greene then went to the aisle where the salad dressing is sold. (Id. at 237). He picked up
the dressing and headed to get the lettuce. (Id. at 237-41). He returned to the shopping
cart, which was still on the meat aisle. (Id. at 242). Greene again avoided stepping in the
blood spots. (Id. at 245-46). About this time, Greene got another call from his girlfriend.
During their conversation, she informed him that he had gotten the wrong salad dressing.
(Id. at 256-57). Green then went to change out the salad dressing. In doing so, he
purposely walked around the blood spots. (Id. at 259-60). After getting the new
dressing, he returned to the cart, trying to avoid the blood. (Id. at 263-64). However, at
one point, he slipped and fell in blood that was located on the darker part of the tile
floor.5 (Id. at 262-64, 268-69; Video 21-4). Greene testified that he was looking down at
the floor trying to avoid the blood at the time of the fall.6 (Id. at 264). He landed on his
“bottom.” (Id. at 265-68). He heard a “po[ping]” noise from his left knee as he fell. (Id.
at 265). Greene noticed liquid on the floor around him and on his clothes. It smelled to
him like meat blood. (Id. at 263).
Ms. Mitchell found a Wal-Mart employee in the meat department who responded
to the incident. (Id. at 274-75). While Greene was on the floor, Wal-Mart employees
started mopping the floor. (Id. at 279). According to Rene Brune, the assistant manager
at the Bessemer store:

5

As best the court can discern from the video, Greene fell right on the demarcation line
for the dark and light tile. (Doc. 21-4 at 4:18:45).
6

Plaintiff’s counsel argues the video shows Greene looking up, to his right and in front
and not at the floor at the time of the fall. (Doc. 28 at 5). The court has examined the
video, and finds that immediately prior to the fall, Greene was looking to the right and in
front of him. (Doc. 21-4 at 4:18:32-43). At the time of the fall, the court’s copy of the
video is too distorted to discern which way he was looking. (Id. at 4:18:45).
3

At the time of the incident, Wal-Mart had safety policies and procedures
in place to try to eliminate or reduce potential hazards on the sales floor,
including slip, tip and fall hazards. Associates are responsible for zoning
their areas of the store throughout the day and are constantly walking the
sales floor in their respective departments to be certain the store is clean
and safe for customers.
(Doc. 21-4 at ¶ 4).
As a result of the fall, Greene sustained injuries to his lower back and left knee.
He has had to endure two knee surgeries since the incident as a result of the fall. (Id. at
123-24).
Plaintiff initiated this action in state court on June 24, 2014, (Doc. 1 ¶ 5, Doc. 1-4
at 1). Defendants removed the case to this court. (Doc. 1). They now move for partial
summary judgment on Plaintiff’s negligence and wantonness claims. (Doc. 20). They
have submitted a brief and various exhibits in support of their motion. (Docs. 21 & 22).
Plaintiff has filed a brief and exhibits in opposition to the motion. (Doc. 28). Defendants
have filed a reply to Plaintiff’s brief. (Doc. 29).
II.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when there is no genuine dispute as to any

material fact and the moving party is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(a). The party seeking summary judgment must first identify grounds that
show the absence of a genuine issue (dispute) of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The burden then shifts to the non-movant, who must go
beyond the pleadings and present affirmative evidence that a genuine issue (dispute) of
material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
The substantive law will identify which facts are material and which are
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irrelevant. Anderson, 477 U.S. at 248. All reasonable doubts about the facts and all
justifiable inferences are resolved in favor of the non-movant. See Sims v. MVM, Inc.,
704 F.3d 1327, 1330 n.2 (11th Cir. 2013); Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir.1993); Hill v. Wal-Mart, 510 F. App’x 810, 813 (11th Cir. 2013).7 A
dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson, 477 U.S. at 248. If the evidence is merely colorable,
or is not significantly probative, summary judgment may be granted. See id. 249. The
court may consider materials including depositions, documents, electronically stored
information, affidavits, and declarations in resolving a motion for summary judgment.
FED. R. CIV. P. 56(c)(1)(A).
III.

DISCUSSION
Wal-Mart asserts it owed no duty to Greene because the hazard – blood on the

floor – was “open and obvious” and known to him. (Doc. 21 at 17-23). Greene responds
that there are material issues of fact as to whether or not the blood sports were “open and
obvious” to him prior to his fall. (Doc. 28 at 8). Specifically, Greene argues he
“obviously did not see the meat blood on the dark portion of the floor or he would have
avoided it like he avoided it on the white tile floor. [He] was not aware of the danger or
he would not have walked on that portion of the floor.” (Id. at 8-9).
A.

The Applicable Law

It is undisputed that Greene was a business invitee of Wal-Mart. Accordingly, the
applicable law is well-settled:
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Unpublished opinions of the Eleventh Circuit Court of Appeals are not binding
precedent, but are deemed persuasive authority. Eleventh Circuit Rule. 36-2.
5

In a premises-liability case, the elements of negligence are the same as
those in any tort litigation: duty, breach of duty, causation, and damages.
Sessions v. Nonnenmann, 842 So. 2d 649, 651 (Ala. 2002). A store patron
is generally considered a business invitee for premises-liability purposes
under Alabama law. See Ex parte Mountain Top Indoor Flea Market, 699
So.2d 158, 161 (Ala. 1997). A store owner’s duty is “to exercise
reasonable care to provide and maintain reasonably safe premises for the
use of his customers.” Denmark v. Marcantile Stores Co., 844 So. 2d
1189, 1192 (Ala. 2002) (quoting Maddox v. K-Mart Corp., 565 So. 2d 14,
16 (Ala. 1990)). However, because a landowner is not the insurer of the
safety of his invitees, Ex parte Mountain Top, 699 So. 2d at 161, the
owner’s duty is negated where the invitee or customer knew or should
have known about the hazard that purportedly caused his injury. Jones
Food Co. v. Shipman, --- So. 2d ----, ---- 2006 WL 3718254 at *6 (Ala.
2006).
This ‘open and obvious hazard’ rule has been stated many times by the
Alabama Supreme Court. “The duty owed to an invitee is limited to
hidden defects which are not known to the invitee and would not be
discovered by him in the exercise of ordinary care.... The owner of
premises has no duty to warn an invitee of open and obvious defects in the
premises which the invitee is aware of, or should be aware of, in the
exercise of reasonable care on the invitee’s part. As a general rule, an
invitor will not be liable for injuries to an invitee resulting from a danger
which was known to the invitee or should have been observed by the
invitee in the exercise of reasonable care.” Ex parte Mountain Top, 699
So. 2d at 161 (internal quotation marks and citations omitted) (quoting and
citing Sisk v. Heil Co., 639 So. 2d 1363, 1365 (Ala. 1994); Harvell v.
Johnson, 598 So. 2d 881 (Ala. 1992); Quillen v. Quillen, 388 So. 2d 985,
989 (Ala. 1980); Shaw v. City of Lipscomb, 380 So. 2d 812, 814 (Ala.
1980); and Tice v. Tice, 361 So. 2d 1051 (Ala. 1978)).
Alabama follows the Restatement (Second) of Torts, which provides that a
landowner is not liable for dangers that are either known or obvious. For
a defect to be ‘known,’ “the plaintiff must be aware of the existence of the
condition and must appreciate the danger it involves. ‘Obvious’ means
that the condition and risk are apparent to, and would be recognized by, a
reasonable person in the position of the invitee. Therefore, the ‘obvious’
test is an objective one,” Hines v. Hardy, 567 So. 2d 1283, 1284 (Ala.
1990) (quoting Rest.2d Torts § 343A (1965)); see also Ex parte Mountain
Top, 699 So. 2d at 161, whereas the ‘known’ test is subjective.
Blalock v. Wal-Mart Stores East, LP, 2007 WL 1412445, **1-2 (M.D. Ala. May 11,
2007). The Alabama Supreme Court has also stated:
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Whether we speak in terms of the duty owed by the defendant or of
contributory negligence of the plaintiff, the plaintiff cannot recover for
negligence or wantonness if the plaintiff’s injury was caused by an open
and obvious danger of which the plaintiff knew, or should have been
aware. However, not only must the plaintiff have knowledge of the
dangerous condition, but the plaintiff also must have a conscious
appreciation of the danger posed by the visible condition at the moment
the incident occurred. Owens v. National Security of Alabama, Inc., 454
So. 2d 1387 (Ala. 1984); Furgerson v. Dresser Industries, Inc., 438 So. 2d
732 (Ala. 1983); Elba Wood Products, Inc. v. Brackin, 356 So. 2d 119
(Ala. 1978); Kingsberry Homes Corp. v. Ralston, supra. The Court in
F.W. Woolworth Co. v. Bradbury, 273 Ala. 392, 140 So. 2d 824 (1962),
and again in Kingsberry Homes, supra, reaffirmed that “we have long
been committed to the proposition that the plaintiff’s appreciation of the
danger is, almost always, a question of fact for the determination of the
jury.” 273 Ala. at 394, 140 So. 2d at 825-26.
Marquis v. Marquis, 480 So. 2d 1213, 1215-16 (Ala. 1985). United States District Court
Judge Callie Granade has also stated that “the Alabama Supreme Court has ‘held that a
summary judgment is proper on the issue of whether a defect was open and obvious
when the undisputed evidence shows that the plaintiff was aware of the danger,
appreciated the danger, and acted more carefully because of the perceived danger.’ ”
Gordon v. Wal-Mart Supercenter, 2009 WL 2762831, *4 (S.D. Ala. Aug. 28, 2009)
(quoting Harding v. Pierce Hardy Real Estate, 628 So. 2d 461, 463 (Ala. 1993)
(emphasis in original)[8]).9

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The court also noted:
Furthermore, “once it has been determined that the duty owed to an
invitee has been breached,” a determination of “whether the plaintiff
should have been aware of the defect [is] normally [a] question[ ] for the
jury.” Bogue [v. R&M Grocery], 553 So. 2d [545,] 547 [(Ala. 1989)].

Gordon, 2009 WL 2762831 at 4, n.2.
9

In Humphrey v. Wal-Mart Stores East, LP, 2013 WL 5707246 (N.D. Ala. Oct. 21,
2013), United States District Judge David Proctor stated, “[Q]uestions of contributory
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B.

Analysis

Turning to the circumstances in this case, Greene argues that summary judgment
is due to be denied because “the evidence is that [he] had only observed small spots of
meat blood in various places on the white tile floor ... in the area of the meat aisle. There
is no evidence that [he] was aware that meat blood covered the surface of the floor ...
where [he] fell.” (Doc. 28 at 10). Wal-Mart retorts that the evidence is undisputed that
Greene “not only saw the red meat blood on the floor as he navigated the grocery
department, but he appreciated it as a potential threat.” (Doc. 29 at 2). Wal-Mart also
argues that Greene mischaracterizes and contradicts his deposition testimony. (Id.)
With regard to the size and location of the meat blood, Greene’s deposition
testimony reveals that he was aware there were “little puddles” of blood, ranging in size
from small drops to areas “bigger than a baseball” on the floor. (Greene Dep. at 213-14).
According to Greene, the drops were “all over the floor” on both the white and dark tile.
(Id. at 214-15, 262). He also stated that the shopping carts traveling over the spots
caused “marks on the floor.” (Id. at 207-09, 211-12, 271). Greene further testified that
he was trying to avoid stepping in the blood as he walked back to his cart immediately
before the incident (id. at 263-64) and he fell in the same area he had seen the blood spots
previously (id. at 269-71).
Greene unequivocally was aware of the presence of the blood on the floor in the
area in front of the meat department. He saw it during the multiple times he traversed the

negligence, assumption of the risk, and whether the plaintiff should have been aware of
the defect, are normally questions for the jury.” Id. at *4 (citing Williams v. Bruno’s Inc.,
632 So. 2d 19, 22 (Ala. 1993) (quoting Bogue v. R & M Grocery, 553 So. 2d 545, 547
(Ala. 1989) (internal quotations omitted)).
8

area and he purposely attempted to avoid it. Additionally, he generally appreciated the
danger posed by the blood, which also is evidenced by the fact that he was trying to avoid
the blood spots as he traversed the meat department. However, the court cannot say as a
matter of law that he had knowledge of the condition in the immediate area where he fell,
which appears to have been located just behind his cart in the dark portion of the floor in
the meat department. The video recording of Greene’s actions immediately before he fell
suggests he was not particularly concerned about the condition of the floor. Although
Greene’s head movements the second or two before the fall are not clear on the
recording, the prior ten seconds are clear. Greene is walking toward the shopping cart
and is looking off at times to the side. He does not appear to be focused on the floor.
(Doc. 21-4 at 4:18:32-43). Viewing the evidence as the court must at this juncture, it
does not appear that he appreciated the condition of the floor at that location or the
danger presented by the substance he slipped on in that instance. In so finding, the court
recognizes that this is a very close question. The court further notes that the Alabama
Supreme Court has long recognized that whether a plaintiff should have been aware of
the situation (see Bogue, 553 So. 2d at 547 and Humphrey, 2013 WL 5707246, at *4) and
whether plaintiff appreciated the danger (F.W. Woolworth Co., 273 Ala. at 394, 140 So.
2d at 825-26) are almost always questions of fact for the determination of the jury.
Accordingly, the court finds that Defendant’s motion for summary judgment is due to be
denied.
IV.

CONCLUSION
Premised on the foregoing, Defendant’s motion for summary judgment (doc. 20)

will be and hereby is denied.
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DONE and ORDERED, this the 3rd day of June, 2016.

___________________________
JOHN E. OTT
Chief United States Magistrate Judge

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