Gulledge v. Wal-Mart Inc
Filing
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MEMORANDUM OPINION. Signed by Judge R David Proctor on 7/29/2019. (KAM)
FILED
2019 Jul-29 PM 04:30
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
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) Case No. 2:18-cv-00563-RDP
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PATRICIA K. GULLEDGE,
Plaintiff,
v.
WAL-MART INC.,
Defendant.
MEMORANDUM OPINION
This case is before the court on Defendant’s Motion for Summary Judgment. (Doc.
# 14). The parties have fully briefed the Motion (Docs. # 14, 16, 17, 21, 23), and it is under
submission. After careful review, and for the reasons explained below, the court concludes that
Defendant’s Motion for Summary Judgment is due to be granted.
Factual Background1
I.
Plaintiff Patricia K. Gulledge fell and injured herself while at the Hoover, Alabama WalMart. (Doc. # 17 at 2). She was shopping for coffee for a weight loss center where she worked at
the time of the incident. (Doc. # 14-3 at 91-92, 97-98).2 However, before she reached the grocery
portion of the store by way of the Garden Center entrance, Plaintiff stopped in the three-aisle
Easter section to look at a stuffed animal for her dog. (Id. at 86, 99). Plaintiff did not see an
1
The facts set out in this opinion are gleaned from the parties’ submissions and the court’s own
examination of the evidentiary record. All reasonable doubts about the facts have been resolved in favor of the
nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These
are the “facts” for summary judgment purposes only. They may not be the actual facts that could be established
through live testimony at trial. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th
Cir. 1994).
2
Plaintiff’s deposition transcript is contained in Document # 14-3. All citations to deposition transcripts in
this opinion are to the minuscript page numbers, rather than the CM/ECF-generated page numbers.
employee cleaning the floor, nor did she slip or slide as she walked across the store. (Id. at 98,
111). While walking to the stuffed animals on the first aisle of the Easter section, despite
believing that the floor looked unusually bright and shiny, Plaintiff did not see anything either
out of place or on the floor, such as any liquid or merchandise. (Id. at 111, 113-14). She grabbed
a stuffed animal from the shelf and put it back. (Id. at 118-19). The last thing Plaintiff remembers
is turning away from the stuffed animal and beginning to walk down the aisle. (Id. at 118-19). At
least one shopper, Joe Wilson, heard Plaintiff scream, but no one was on the aisle at the time of
the incident to witness her fall. (Id. at 119-20).
Non-time-stamped photos show three stuffed animals and an Easter basket on the floor
close to the shelves and a highlighter near the middle of the aisle. (Doc. # 14-7 at 6-10). But,
there is no evidence in the record from which a reasonable jury could find that these items were
on the floor at the time of the incident. Instead, Plaintiff’s deposition and the affidavit of
Stephanie Turpin, another customer who was shopping at the time of the fall, create an
undisputed record that the aisle was clear at the time of, and immediately following, the
incident.3 (Docs. # 14-3 at 119-124; 14-7 at 2-4). Plaintiff candidly does not know what caused
her to fall. (Doc. # 14-3 at 123-24, 129-30).
II.
Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary 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 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
3
Turpin stated, “I looked at the floor on the aisle on which Ms. Gulledge was lying to see what had caused
her fall. The aisle was clean, clear, and dry. There were no puddles, substances, stuffed animals, highlighters, or any
other objects on the floor at that time. There were no shopping cart tracks, footprints or any type of slide marks on
the floor of that aisle. There was nothing on the floor at that time which could have caused Mrs. Gulledge to fall.”
(Doc. # 14-7 at 3).
2
party seeking 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 which it believes
demonstrate the absence of a genuine dispute of material fact. Id. at 323. Once the moving party
has met its burden, Rule 56 requires the nonmoving party to go beyond the pleadings and -- by
pointing to affidavits, depositions, answers to interrogatories, or admissions on file -- designate
specific facts showing that there is a genuine dispute for trial. Id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
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 nonmovant. See Allen v. Bd. of Pub.
Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993). 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. at
249.
When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson
teaches, under Rule 56(c) a plaintiff may not simply rest on his allegations made in the
complaint; instead, as the party bearing the burden of proof at trial, he must come forward with
at least some evidence to support each element essential to his case at trial. See Anderson, 477
U.S. at 252. “[A] party opposing a properly supported motion for summary judgment ‘may not
rest upon the mere allegations or denials of his pleading, but…must set forth specific facts
showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted). Summary
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judgment is mandated “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a
sufficient disagreement to require submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.’” Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1262
(D. Kan. 2003) (quoting Anderson, 477 U.S. at 251-52).
III.
Analysis
Plaintiff has conceded her claims for wantonness (Count II) and negligent supervision
and training (Count IV), and they are due to be dismissed. (Docs. # 17 at 10; 21 at 10-11). Also,
though Plaintiff argues that her negligence and premises liability claims are separate and distinct
claims, this argument fails as a matter of law. Plaintiff has a single claim against Defendant
based on premises liability principles.
When deciding which theory of law is proper between general negligence and premises
liability under Alabama law, the court considers whether affirmative conduct of the landowner or
a condition of the premises caused the injury. Baldwin v. Gartman, 604 So. 2d 347, 349 (Ala.
1992) (applying premises liability principles when an employee left a concrete slab unbalanced
on the premises because leaving the slab unattended did not cause the injury; rather, leaving the
slab created a dangerous condition); Powell v. Piggly Wiggly Ala. Distrib. Co., Inc., 60 So. 3d
921, 924 (Ala. Civ. App. 2010) (holding that general negligence principles apply when an
employee operating a forklift struck the plaintiff causing injury). If affirmative conduct of the
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landowner caused the injury, then general negligence principles apply. Powell, 60 So. 3d at 924.
But, if a condition of the premises caused the injury, then the principles of premises liability
apply. Baldwin, 604 So. 2d at 348-50.
In a premises liability action based on a fall, a plaintiff must prove (1) that her fall was
caused by a defect or instrumentality located on the defendant’s premises, (2) that the fall was
the result of the defendant’s negligence, and (3) that the defendant had or should have had notice
of the defect or instrumentality before the accident. Logan v. Winn-Dixie Atlanta, Inc., 594 So.
2d 83, 84 (Ala. 1992) (utilizing premises liability principles when plaintiff slipped on an
allegedly slick entrance ramp from wet paint); Miller v. Archstone Cmty. Tr., 797 So. 2d 1099,
1102 (Ala Civ. App. 2001) (applying premises liability principles to a slip-and-fall case in an
apartment complex parking lot allegedly occurring from improperly poured sealant). In this case,
the Plaintiff alleges that either a misplaced stuffed animal or a slick floor caused her injury.
Thus, this case calls for an analysis of premises liability rather than general negligence
principles.4
While it is undisputed that Plaintiff was a business-invitee of Defendant, “an owner of a
premises is not an insurer of the safety of its invitees.” Wal-Mart Stores, Inc. v. Rolin, 813 So. 2d
861, 863 (Ala. 2001) (internal quotation marks omitted) (quoting Ex parte Potmesil, 785 So. 2d
340, 343 (Ala. 2000)); see also Dolgencorp, Inc. v. Hall, 890 So. 2d 98, 101 (Ala. 2003); Miller,
797 So. 2d at 1102. Also, there is no presumption of negligence following an injury of an invitee;
rather, an “owner will be liable only if [he] failed to use reasonable care in maintaining [the]
premises in a reasonably safe manner.” Hall, 890 So. 2d at 101; see also Rolin, 813 So. 2d at
864.
4
If an improperly buffed floor caused the injury, premises liability principles apply because an employee
mopping/buffing the floor did not directly cause the incident; instead, the employee created a dangerous condition.
See Rigsby v. United States, No. 6:11-CV-2314-WMA-TMP, 2013 WL 5230649, at *2 (N.D. Ala. Sept. 16, 2013).
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A. A Reasonable Jury Could Not Conclude That a Defect or Item on the Aisle Floor
Caused Plaintiff’s Fall.
To overcome a properly supported motion for summary judgment, “the adverse party
must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at
250. Even at the summary judgment phase of litigation, a plaintiff must support her claim with
more than mere allegations. Id.; see also Logan, 594 So. 2d at 84-85 (granting summary
judgment to the defendant when plaintiff failed to present substantial evidence that the ramp on
which she slipped was painted in the same month as her incident); Tice v. Tice, 361 So. 2d 1051,
1052 (Ala. 1978) (reasoning that plaintiff’s belief that a toy on the ground may have caused her
fall was not enough to defeat a proper summary judgment motion by the defendant).
Furthermore, if the court held businesses liable in slip-and-fall cases based solely on mere
speculation, premises owners would be virtual insurers of others’ safety, held to a near strict
liability standard. Ex parte Harold L. Martin Distrib. Co., Inc., 769 So. 2d 313, 316 (Ala. 2000).
In this case, Plaintiff makes two distinct arguments to refute Defendant’s evidence that
the floors were clean, clear, and dry at the time of the accident. (Doc. # 21 at 8-9). First, Plaintiff
alleges that the floor was unusually slick and shiny. (Doc. # 21 at 9). Second, Plaintiff alleges
that there was a small stuffed animal in the aisle. (Doc. # 21 at 8). However, no evidence in the
record would allow a reasonable jury to find or infer that either an allegedly slick floor or a
stuffed animal was present at the time of the incident, let alone caused Plaintiff’s fall.
Plaintiff testified at her deposition that the floors at Wal-Mart looked “really super clean”
and extra “bright and shiny” on the day she fell. (Doc. # 14-3 at 109-12). She thought the floors
looked like they were recently cleaned, buffed, or shined. (Id. at 110). When asked how she
knew that the floor on the Easter aisle had been waxed or cleaned, Plaintiff responded that she
visited the Wal-Mart several days before and the floors were not that shiny and clean. (Id. at
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211). However, she did not actually know if Defendant waxed the floors, nor did she have
knowledge of Defendant’s cleaning schedule. (Id. at 110-11). Moreover, Plaintiff’s assertions
that the floor appeared unusually bright and shiny are not sufficient for a reasonable jury to
conclude that the floor was in fact slick or that any slickness caused her fall.5 And, despite her
perception that the floors were recently cleaned, Plaintiff testified unequivocally at her
deposition that she did not slip or slide on the “bright and shiny” floors at any time before her
fall. (Id. at 110).
Also, Plaintiff stated several times in her deposition that she does not know what caused
her to fall. (Id. at 123-24). Plaintiff specifically testified that she has no idea if she slipped on a
stuffed animal. (Id. at 200-02). The only evidence in the record that a stuffed animal was on the
floor at any point in time comes from photos that include the pool of blood from Plaintiff’s fall.
(Doc. # 14-7 at 6-10). While a jury could infer from these photos that there were items on the
aisle floor sometime after the incident and before the photo was taken, these photos do not lead
to an inference that the items were on the floor at the time of the incident. To the contrary,
Turpin’s affidavit is the only evidence in the record that details the scene immediately after the
accident, and she states that there was no substance or stuffed animal on the floor of the aisle.
(Id. at 1-3). Thus, a reasonable jury could not conclude that a defect or item on the floor caused
Plaintiff to fall, because every statement that could lead a jury to infer otherwise is simply an
allegation based on conjecture and speculation similar to the plaintiff’s belief in Tice that a toy
caused her fall.6
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Plaintiff’s conjectural and speculative allegations are analogous to those made by the plaintiff in the
Logan case, detailed above.
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Since a jury could not infer from these facts that there was a defect or item on the aisle at the time of her
fall, Plaintiff also has not identified evidence from which a reasonable jury could find that Defendant’s actions were
the cause-in-fact of her injury.
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B. Alternatively, a Reasonable Jury Could Not Conclude That the Defendant
Possessed Either Actual or Constructive Notice About an Item or Defect on the
Aisle Floor.
Because a business’s liability rests on its superior knowledge of the danger that causes an
invitee’s injury, a business must have either actual or constructive notice of the defect before the
accident’s occurrence for liability to attach. Cook v. Wal-Mart, Inc., 795 F. Supp. 2d 1269, 1273
(M.D. Ala. 2011) (citing Hale v. Sequoyah Caverns & Campgrounds, Inc., 612 So. 2d 1162,
1164 (Ala. 1992)); Fowler v. CEC Entm’t, 921 So. 2d 428, 432-33 (Ala. Civ. App. 2005). In
other words, the plaintiff must prove that the defendant either knew or should have known of the
substance before a business can be held responsible for an invitee’s injury. Maddox By &
Through Maddox v. K-Mart Corp., 565 So. 2d 14, 16 (Ala. 1990).
To establish notice, a plaintiff must prove that (1) the substance on which the plaintiff
slipped had been on the floor for a sufficient length of time to impute constructive notice, (2) the
business had actual notice that the substance was on the floor, or (3) the business was delinquent
in not discovering and removing the substance. Id. If a plaintiff cannot establish notice, then a
business’s superior knowledge is lacking and that business cannot be held liable for the
plaintiff’s injuries. Fowler, 921 So. 2d at 432-33.
In this case, there is no evidence that Defendant had actual knowledge that a stuffed
animal was on the floor of the aisle. Also, there is no evidence in the record regarding the length
of time that the stuffed animal was on the floor. In fact, the uncontroverted evidence establishes
that the stuffed animal did not appear on the floor until sometime after Plaintiff’s fall. (Doc.
# 14-7 at 4, 6-10). Therefore, Plaintiff has not provided evidence from which a reasonable jury
could find that Defendant had actual or constructive notice of an item being on the floor of the
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aisle. Plaintiff has likewise offered no evidence from which a jury could find (1) that a slick floor
caused her fall or (2) that Defendant had actual or constructive notice that the floor was slick.
C. Alternatively, Even if Defendant Had Notice of the Slick Floor, Plaintiff Had
Actual Knowledge of the Dangerous Condition
“If the business (or one of its employees) creates the dangerous condition, then the
business is deemed to have actual notice of it.” Cook, 795 F. Supp. 2d at 1273. But, “an invitor
[is] not 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.” Baldwin, 604 So.
2d at 350 (internal quotation marks omitted) (quoting Quillen v. Quillen, 388 So. 2d 985, 989
(Ala. 1980)).7 Therefore, even if the court assumes that Defendant had actual notice of the
allegedly slick floor, Plaintiff’s premises liability claim still fails as a matter of law. Plaintiff
stated several times that she believed the floor was unusually bright and shiny. (Doc. # 14-3 at
111-13). Therefore, Plaintiff, as an invitee, admitted that she was aware of the alleged dangerous
condition. Since a defendant is not liable for injuries that occurred from a condition known to the
plaintiff under Alabama law, Plaintiff has not provided evidence from which a reasonable jury
could find Defendant liable on a premises liability claim.
IV.
Conclusion
For the reasons explained above, Defendant’s Motion for Summary Judgment (Doc. # 14)
is due to be granted. Additionally, because the court has granted Defendant’s Motion for
Summary Judgment, Defendant’s Motion to Strike (Doc. # 22) is due to be denied as moot.
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“[T]he focus of [Alabama’s] 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 danger through the exercise of reasonable care.” Ex parte Industrial Distribution
Servs. Warehouse, 709 So. 2d 16, 20-21 (Ala. 1997).
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Woods v. United States Steel Corp., No. 2:17-CV-00883-RDP, 2018 WL 6067502, at *15 (N.D.
Ala. Nov. 20, 2018). A separate Order will be entered.
DONE and ORDERED this July 29, 2019.
_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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