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

Filing 35

MEMORANDUM OPINION. Signed by Judge R David Proctor on 6/28/2016. (KAM, )

FILED
2016 Jun-28 PM 03:39
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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

MEMORANDUM OPINION
“People make mistakes.” Conkright v. Frommert, 559 U.S. 506, 509 (2010). Although
that was the opening line in one of the Supreme Court’s ERISA decisions, it applies equally here
as well. Sometimes the mistake people make is spilling things on the floor.1
This is a slip and fall case in which Defendant has moved for summary judgement. (Doc
# 20). On June 3, 2016, the Magistrate Judge entered a Report and Recommendation. (Doc. #
32). He recommended that Defendant’s Motion for Summary Judgment (Doc. # 20) be denied.
Defendant filed an Objection to the Report and Recommendation on June 16, 2016. (Doc. # 33).
After careful and independent review, and for the following reasons, the court concludes
Defendant’s Objection (Doc. # 33) is due to be sustained, and its motion for summary judgment
granted.

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"When something goes wrong ... the natural tendency is to lay blame. The misattribution of blame is one
reason we make the same mistakes over and over again. We learn so little from experience because we blame the
wrong cause. Knowing what happened alters our perception of why it happened." Joseph T. Hallinan, Why We Make
Mistakes (2010).

I.

Summary of Relevant Facts
Plaintiff Greene and his friend, Brittany Mitchell, were in the grocery department of

Defendant’s store seeking to purchase groceries. (Greene Dep. (contained in Docs. # 21-1 and
21-2) at 148, 173, 191-92). Plaintiff’s girlfriend called him while he was in the store and asked
him to purchase various items. (Id.). As Greene walked “past the dairy aisle at the beginning of
the bakery aisle turning towards the meat aisle” he noticed water on the floor. (Id. at 155-59).
He did not report the water to any Wal-Mart associates. (Id. at 160).
Greene then proceeded towards the meat department. (Id. at 191-92). At 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 some
darker colored tile near the meat counter to the white tile in the aisle. (Id. at 215). Greene did not
report the blood on the floor to anyone, even though there was a Wal-Mart maintenance associate
sweeping the floor on the other side of the aisle. (Id. at 227-28, 233). As Greene went here and
there in the store (at the direction of his girlfriend’s telephonic instructions), he deliberately
avoided stepping in the blood spots. (Id. at 245-46, 259-64). However, eventually, he slipped
and fell in blood that was located on the darker part of the tile floor. (Id. at 262-64, 268-69;
Video 21-4).
With regard to the blood, Plaintiff agreed during his deposition that “if you are watching
where you are going … anyone would see it.” (Id. at 252-53). He testified that he did not warn
Mitchell, his shopping companion, about the blood spots because he did not think it necessary
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because the spots were obvious to him. (Id. at 252-53). “You can see if there is blood on the
white tile, I mean. And the dark one, it ain’t that dark that you can’t see that there’s blood on the
floor. Yes, I saw it.” (Id. at 261). Also, in his deposition, to the question “do you understand
that if you step in liquid, that it might cause you to slip and fall?” Plaintiff responded “Yes. I
understand that.” (Id. at 216).
II.

Analysis
In his Report and Recommendation, the Magistrate Judge reported that, because the

evidence was not clear that Plaintiff appreciated the existence or danger of the particular blood
spot on which he slipped, there was a question of fact which precluded summary judgment in
this slip and fall case. In making this report, the Magistrate Judge relied on, among other things,
this court’s opinion in Humphrey v. Wal-Mart Stores East, LP, 2013 WL 5707246 (N.D. Ala.
Oct. 21, 2013). In that case, this court stated, “questions of contributory 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)).
In Humphrey, however, the question was “whether Plaintiff should have been aware of
the water on the floor.” Humphrey, 2013 WL 5707246, at *4. The plaintiff in that case did not
testify that she was aware of the water in which she slipped; therefore, whether she was aware of
the liquid was an issue of fact. Id. Determining her awareness under those circumstances
necessarily involved credibility determinations and was a question for a jury to resolve. Id. But
this case is different. Here, in contrast to Humphrey, Plaintiff has unequivocally testified that he
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was aware of the blood spots, aware of the danger that he could slip in them, had avoided the
spots multiple times, and the blood spots were open and obvious. (Greene Dep at 216, 252-53,
261).
Under Alabama law, if liquid on a floor is an open and obvious danger that reasonably
should have been observed by a plaintiff (and, indeed, in this case Plaintiff admits he actually
observed the liquid), it follows that a defendant's common-law duty to warn of or eliminate that
hazard is negated as a matter of law. Arnold v. Wal–Mart Stores, Inc., 2009 WL 4827389 *4
(M.D. Ala. 2009); Jones Food Co., Inc. v. Shipman, 981 So.2d 355, 362 (Ala. 2006). The “entire
basis of a [business’s] liability rests upon [its] superior knowledge of the danger which causes
the [customer’s] injuries.” Cook v. Wal-Mart Stores, Inc., 795 F.Supp.2d 1269, 1273 (M.D. Ala.
2011) (quoting Fowler v. CEC Entm’t, 921 So.2d 428, 432-33 (Ala.Civ.App. 2005) (in turn
quoting Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194 (Ala. 2002)) (internal
quotations omitted).
The duty to keep premises safe for invitees applies only to defects and conditions
which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in
that they are not known to the invitee, and would not be observed by him in the
exercise of ordinary care. The invitee assumes all normal or ordinary risks
attendant upon the use of the premises, and the owner or occupant is under no
duty to reconstruct or alter the premises so as to obviate known and obvious
dangers, nor is he liable for injury to an invitee resulting from a danger which was
obvious or should have been observed in the exercise of reasonable care.
Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 63, 173 So. 388, 391 (1937) (quoting 45
C.J.S. § 244, p. 837) (emphasis added). “[T]he focus of our premises liability law is not on the
care that may have been exercised by the invitee ..., but on relieving a premises owner of a legal
liability where an invitee knew of the danger that caused the injury or should have observed that

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danger through the exercise of reasonable care.” Ex parte Industrial Distribution Servs.
Warehouse, 709 So.2d 16, 20-21 (Ala.1997) (emphasis added).
Here, Plaintiff himself candidly testified that the blood spots were open and obvious. He
saw them. Therefore, Defendant had no duty to warn Plaintiff of their existence or that they
might create a slipping hazard. Because Defendant had no duty to warn Plaintiff of the open and
obvious danger, Plaintiff has failed to establish that Defendant breached any duty of care owed to
him. See Ex parte Nesse, 819 So.2d 584, 590 (Ala.2001) (granting summary judgment based on
the open and obvious nature of the element, where plaintiff walked over the hazard 2-3 times,
failing to exercise reasonable care to appreciate the hazard). It follows, therefore, Defendant is
entitled to summary judgment on Plaintiff’s negligence claim.
In addition to his negligence claim, Plaintiff’s Complaint also asserts a wantonness claim
based upon the same set of facts. Under Alabama law, wantonness is “the conscious doing of
some act or the omission of some duty while knowing of the existing conditions and being
conscious that, from doing or omitting to do an act, injury will likely or probably result.” Ex
parte Essary, 992 So.2d 5, 9 (Ala. 2007) (citing Bozeman v. Central Bank of the South, 646
So.2d 601 (Ala. 1994) (emphasis in original)). See also Ala. Code § 6–11–20(b)(3) (1975)
(defining wantonness as “[c]onduct which is carried on with a reckless or conscious disregard for
the rights or safety of others.”). Wantonness, “requires more than a showing of some form of
inadvertence on the part of the [defendant]; it requires a showing of some degree of conscious
culpability.” Ex parte Anderson, 682 So.2d 467, 469 (Ala. 1996) (citing George v. Champion
Ins. Co., 591 So.2d 582 (Ala. 1991)).

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Plaintiff has not presented any evidence about the state of mind of any of Defendant’s
employees which would suggest that the failure to mop up the blood spots is evidence of wanton
conduct. “Evidence that an accident occurred, without evidence that the defendant or its agents
were conscious of … the potential for injury, is insufficient to prove wantonness under Alabama
law.” Katrensky v. United States, 732 F. Supp. 2d 1194, 1203-04 (M.D. Ala. 2010). 2
III.

Conclusion
For all of the foregoing reasons, Defendant is entitled to summary judgment on Plaintiff’s

negligence and wantonness claims. A separate order will be entered.
DONE and ORDERED this June 28, 2016.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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The court notes this irony: Plaintiff admits he did not inform an employee of Defendant of the presence of
either of the slipping hazards he encountered -- the water or the blood spots. Informing Defendant’s employees of
the presence of the liquid would have given Defendant the opportunity to mop the area. Such that another customer,
who might not have been as observant as Plaintiff, would not slip in them.

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