Seale et al v. Target Corporation
MEMORANDUM OPINION AND ORDER DENYING 20 MOTION for Summary Judgment filed by Target Corporation. By separate Order, this case will be set for a Pretrial Conference. Signed by Judge Virginia Emerson Hopkins on 8/8/2018. (KWC)
2018 Aug-08 PM 01:12
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
) Case No.: 2:17-CV-286-VEH
MEMORANDUM OPINION AND ORDER
This is a civil action filed by the Plaintiff, Kristie Seale, against the Defendant,
Target Corporation, which alleges that the Defendant’s negligence and wantonness
were the proximate cause of injuries to the Plaintiff when she slipped and fell on the
Defendant’s premises. (Doc. 1-1 at 2).
The case comes before the Court on the Defendant’s Motion for Summary
Judgment (the “Motion”). (Doc. 20). For the reasons stated herein, the Motion will
Under Federal Rule of Civil Procedure 56, summary judgment is proper if 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); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary judgment always bears
the initial responsibility of informing the court of the basis for its motion and
identifying those portions of the pleadings or filings that it believes demonstrate the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the
moving party has met its burden, Rule 56(e) requires the non-moving party to go
beyond the pleadings in answering the movant. Id. at 324. By its own affidavits – or
by the depositions, answers to interrogatories, and admissions on file – it must
designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment
may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citation omitted). Once the moving party makes such
an affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the
non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
On February 18, 2015, Kristie Seale was shopping at the Target store in
Homewood, Alabama. After she had completed her shopping and was walking toward
The facts set out herein are gleaned, in substantial part, from the facts proffered by the
parties. To the extent that a party has proffered a fact which is not disputed, it has been included
herein exactly as it was proffered, without citation. To the extent that a fact proffered by a party
was disputed by another party, the Court first examined the proffered fact to determine whether
the evidence cited in support of that fact actually supported the fact as stated. If it did not, the fact
was not included. If it did, the Court then looked to whether the evidence cited in support of the
dispute actually established a dispute. If it did not, the Court presented the fact as proffered, with
citation to the evidence supporting the fact as proffered. If the cited evidence was disputed by
contrary evidence, the evidence was viewed, as this Court must, in the light most favorable to the
non-movant, with citation to such supporting evidence. If more explanation was needed, the
Court included that information in an appropriate footnote. Some facts proffered by the parties,
which the Court deemed irrelevant and/or immaterial, may have been omitted. Further, as
necessary, the Court may have included additional facts cast in the light most favorable to the
the register, her foot slipped out from under her and she fell. The incident was
captured on Target’s surveillance video, which also captured everything which
occurred in that area approximately 30 minutes before and after the fall.
The video shows that during the approximately thirty minutes leading up to
Seale’s fall, many people walked near and through the area where the fall occurred.
Approximately twelve minutes prior to Seale’s fall, a female shopper is observed on
the surveillance video apparently dropping a bottle of some kind in the area where
Seale fell. (Doc. 20-4 at 1:47:49). The video does not show whether any liquid
actually spilled from the bottle. The female shopper stops and appears to pick up the
bottle and then the lid, then appears to walk down a nearby aisle and place the bottle
on a low shelf. (Doc. 20-4 at 1:47:50-1:48:31). There is no evidence that the female
shopper or any other Target customer alerted any Target employee of any liquid on
the floor in that area.
Approximately ten minutes later, Target employee Eric Kidd is seen on the
video walking through the area near where Seale fell. (Doc. 20-4 at 1:48:50). He can
be seen in the video turning his head towards the area of the floor where the female
shopper dropped the bottle, but he continues walking. In his deposition, Kidd testified
Q. And when you were walking, sir, did you see something on the
ground or do you recall seeing something on the ground?
A. I don't recall seeing anything.
Q. Let's go back a little bit. When we just watched that, would you agree
with me that it appears that you look down at the ground?
A. I can't say that I was looking at the ground. I might have been looking
at production location here on this end cap. I could have been turning
looking towards a guest or heard something.
Q. Okay. Is it possible that you did see some kind of liquid on the
ground and just don't remember it right now?
A. If I had seen a liquid on the ground, I would have taken action.
Q. Okay. And then there is the slip and fall that we are here about. And
then -- let’s look at this one more time. Would you agree with me that
it looks like you do somewhat of a double take of whatever you looked
A. I don't know that I would call it a double take. You could rewind it.
Q. Once right there and –
A. I wouldn’t call it a double take.
Q. All right. And so today you don’t recall seeing any kind of substance
or liquid or anything else when you walked past during that sequence of
A. It’s not that I don't recall, there was nothing there. Otherwise I would
have taken action.
Q. Are you aware that there was some kind of liquid on the ground in
that vicinity that my client slipped on?
A. There was no liquid in any area that I observed –
Q. All right.
A. -- in that video.
(Doc. 20-5 at 6(18-20)).
Seale testified in her deposition that the floor was wet. The following exchange
Q. . . . Did you ever look down at the floor to see what you fell in?
A. Yeah. If you'll notice, I'm doing my hand (demonstrating) to the man,
I said my -- it's wet, yeah, and even my coat was wet on the back
Q. Did you smell your hand?
A. I did. Because I was afraid it was something gross, but it didn't have
a smell really.
Q. So it was like water?
A. That would be my best guess is it was water.
Q. So it didn't have any smell or like greasy feel or anything to it?
A. I did not take note if it had any kind of texture or anything.
Q. All you knew was it was wet?
A. It was wet.
Q. But it didn't smell?
A. I did not smell anything.
Q. In your opinion -A. In my opinion, I believe it was water.
Q. Okay. Do you have a -- and I know you were embarrassed and you
wanted to get out of there real quickly and got up and left, did you look
around to see how much of an area of water there was?
A. No, I did not. I know that there was water on both sides of me.
Q. So at least it carried two feet?
A. At least, yeah -- well, maybe three. Does that (indicating) not look
like a yard? Maybe a yard.
(Doc. 20-3 at 9(30-31)).
The video shows that after Seale fell, multiple Target employees responded to
the location of the fall and, after Seale had been helped up, the employees began
cleaning up the substance on the floor with paper towels and putting out caution
cones. (Doc. 20-4 at 1:59:24-2:03:08). During this time, one of the responding Target
employees reaches down and touches the substance on the floor, smells the substance,
and then flicks her hand several times to try and get the substance off. (Doc. 20-4 at
A Target employee named Lance Self was the first employee to respond to the
accident scene. In his written “Team Member Witness Statement,” Self wrote that
there was “a big pool of water present,” “probably a gallon.” (Doc. 26-5 at 2).
Similarly, Target employee Adrianna Warren completed a “LOD Investigation
Report,” in which she states that she observed “water, 5-6 inches in length.” (Doc. 266 at 2). Warren also completed a “Guest Incident Report,” in which she noted that
there was “water, [a] pretty big puddle.” (Doc. 26-7 at 2).
Kidd testified that Target requires all employees to be aware of potential spills
or other hazards in their area and to take immediate action if a spill or other hazard
is detected. Target employee Eric Kidd testified regarding Target's standard procedure
for responding to spills,
If a team member, an employee, notes a hazard such as a spill, they are
responsible for blocking off that area, calling for additional assistance
to assist in blocking off that area. Because the individual that spots that
is going to stop and stand in that area to try to keep any other guests or
team member from walking through it, risking a slip or a fall, or tracking
it somewhere else that it could cause a greater risk.
That initial team member waits until they have someone else there to
help them or that that person who comes to help them has brought the
proper materials to clean up what the spill may be.
(Doc. 20-5 at 4(11-12)). Mr. Kidd further testified that an employee will direct
customers in the area away from the spill until it is cleaned up. (Doc. 20-5 at 4(12)).
The employees will also place a caution cone or sign in the area to warn customers.
(Doc. 20-5 at 4(12)-5(13)). The following exchange also occurred in Kidd’s
Q. And then in terms of regularly inspecting certain areas of the store,
is there any kind of guideline or rule that y’all follow in terms of
specifying certain areas or trying to make sure there is no hazardous
material or condition on the ground?
A. It's not a regular inspection, and it's not anything that I'm aware of
that's a formal procedure.
A. Not to say that it’s always spotted simply because you have got one
person covering an area of –well, several thousand square feet. It’s
impossible for them to have eyes on something all the time.
A. . . . So you have got a very small group of employees who are
covering a very large area, and it’s pretty much eyes only to be able to
spot these things.
(Doc. 20-5 at 5(14-16)).
In Alabama, in order to prove negligence in a slip and fall case, the Plaintiff
that the alleged substance that caused her to fall had been on the floor
for such a length of time that constructive notice of its presence could
be imputed to the defendants; that the defendants had actual notice that
the substance was on the floor; or that the defendants were delinquent
in not discovering and removing the substance....
Ex parte Wal-Mart Stores, Inc., 806 So. 2d 1247, 1249 (Ala. 2001).
The Defendant argues that
There is no evidence by which Mrs. Seale could prove that Target had
actual knowledge of the presence of any liquid on the floor at the time
of Plaintiff’s fall. There is no testimony from any witness—not from the
Plaintiff, any employee, or any other customer or guest in the area at the
time of the incident—that demonstrates that Target had knowledge of
the presence of liquid on the floor. Therefore, Plaintiff cannot prove
actual notice to Target in order to support her claim.
(Doc. 20-1 at 9). However, there is evidence that a large amount of water, up to a
gallon, spread out over a three foot area, was present where the Plaintiff fell.
Furthermore, a reasonable jury could conclude, based on the video evidence, that
Kidd, a Target employee, looked directly at all of this water and did nothing.
Although Kidd testified that there was no liquid, the facts, cast in the light most
favorable to the Plaintiff, demonstrate that there was a large amount of liquid there.
A reasonable jury could determine that Kidd must have seen it. If that is so, Target
had actual knowledge of the spill.
The Defendant also argues that it did not have constructive notice of the spill,
citing Tidd v. Wal-Mart Stores, 757 F. Supp. 1322 (N.D. Ala. 1991) (Guin, S.J.),
where Judge Guin granted summary judgment, writing:
[H]ere is no evidence that the defendant had actual or constructive
notice of the spill. The record is devoid of evidence regarding the length
of time the spill had been on the floor. Plaintiff contends that the size of
the spill is sufficient in itself to raise a question of fact regarding the
length of time the spill had been down. The court finds that this fact
without more is not sufficient to create a question of fact. A large spill
can be as young as a small spill. A large spill can be as sudden as a small
spill. Anyone who has held a burping baby knows that a large spill can
occur with lightning speed. A large, sudden spill gives an invitor no
additional notice merely because of its size. Were there evidence of a
seeping container or an overturned container dripping onto a shelf and
thence onto the floor, a reasonable inference could be drawn that a large
spill had been there long enough to raise a duty on the part of the
defendant to discover and remove it. The case at bar presents no such
In the case at bar, the record is devoid of evidence that the
defendant had any knowledge or that it should have had any knowledge
of a hazardous condition on its premises.
Tidd, 757 F. Supp. at 1323–24. The instant case is distinguishable from Tidd, as there
is video evidence showing not only the possible cause of the spill but also that the
spill may have been present for 12 minutes before the Plaintiff fell2, and evidence
In its reply, the Defendant cites the following cases: Ryles v. Wal-Mart Stores E. L.P.,
No. 2:04CV334-T, 2004 WL 3711972, at *2 (M.D. Ala. Dec. 16, 2004) (Thompson, J.) (“Where,
as in the instant case, there is no evidence of a reasonably specific time frame and no evidence
that the box had been on the floor long enough to have been bent, mashed or mutilated in any
manner, the court will not simply assume constructive notice.”) (brackets, internal quotations,
and citation omitted); Cantalupo v. John Anthony's Water Café, Inc., 281 A.D.2d 382, 721
N.Y.S.2d 397 (2001) (“In this case, there is no evidence that the alleged puddle on an
800-square-foot crowded dance floor was visible and apparent to the defendant's employees at
any time before the accident.”); Sturdivant v. Target Corp., 464 F. Supp. 2d 596, 603 (N.D. Tex.
2006) (“Given the low visibility of the water and the evidence that the water was on the floor for
five minutes, the Court concludes as a matter of law that Target did not have a reasonable
opportunity to discover the water.”); and Hose v. Winn-Dixie Montgomery, Inc., 658 So. 2d 403,
405 (Ala. 1995) (“In light of the testimony of the produce clerk, who testified that he had walked
regarding the size and amount of the spill. There is a genuine issue of material fact
as to whether the spill had been there long enough for Target to have constructive
knowledge. Summary judgment will be denied as to that issue as well.
Furthermore, based on the facts of this case, the Court determines that there is
a genuine issue of material fact as to whether, assuming Target did not have actual
or constructive notice, it was delinquent in discovering and removing the substance.3
Summary judgment will be denied as to that issue as well.
For the foregoing reasons, the Motion is DENIED. By separate Order, this case
will be set for a Pretrial Conference.
DONE and ORDERED this 8th day of August, 2018.
VIRGINIA EMERSON HOPKINS
United States District Judge
down the aisle 5 to 10 minutes before Hose's accident, one must conclude that the murky liquid
may have been dropped or leaked onto the floor only minutes before Hose fell.”). Each of these
cases is factually distinguishable from the instant case.
Based on the Court’s holding, it need not address the Defendant’s argument that there is
no evidence that it created the hazardous condition which caused the Plaintiff's fall. (Doc. 20-1 at
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