Daniels v. Walgreen Co

Filing 31

OPINION AND ORDER denying the defendant's 21 motion for summary judgment. Signed by Judge J. Leon Holmes on 7/26/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ARETHA DANIELS
v.

PLAINTIFF
No. 5:16CV00152 JLH

WALGREEN CO., d/b/a
WALGREENS #15830

DEFENDANT
OPINION AND ORDER

This is a premises liability case. Aretha Daniels commenced this action in the Circuit Court
of Jefferson County, alleging that Walgreen Co.’s negligence caused her to fall and injure herself
at a Walgreens pharmacy located in Pine Bluff, Arkansas. She subsequently filed an amended
complaint alleging violations of federal laws and regulations,1 and then she filed a second amended
complaint alleging an amount in controversy in excess of $75,000. Walgreens removed the case to
this Court and has now filed a motion for summary judgment. For the following reasons, the motion
is denied.
A court should grant summary judgment if the evidence demonstrates that 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 moving party bears the initial burden of demonstrating the absence of a
genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L.
Ed. 2d 265 (1986). If the moving party meets that burden, the nonmoving party must come forward
with specific facts that establish a genuine dispute of material fact. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine dispute

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Daniels says that her claim is one for ordinary negligence and that the allegations regarding
violations of federal law are relevant only to support her negligence claim. Document #26 at 9.

of material fact exists only if the evidence is sufficient to allow a reasonable jury to return a verdict
in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L. Ed. 2d 202 (1986). The Court must view the evidence in the light most favorable
to the nonmoving party and must give that party the benefit of all reasonable inferences that can be
drawn from the record. Pedersen v. Bio-Med. Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
2015). If the nonmoving party fails to present evidence sufficient to establish an essential element
of a claim on which that party bears the burden of proof, then the moving party is entitled to
judgment as a matter of law. Id.
Negligence is “the failure to do something that a reasonably careful person would do, or the
doing of something that a reasonably careful person would not do, under the circumstances.” New
Maumelle Harbor v. Rochelle, 338 Ark. 43, 46, 991 S.W.2d 552, 554 (1999). “The essential
elements of a negligence claim are (1) the existence of a duty on the part of the defendant to conform
to a specific standard of conduct to protect the plaintiff; (2) breach of that duty by the defendant; (3)
injury to the plaintiff actually and proximately caused by the defendant’s breach; and (4) resulting
damage to the plaintiff or his property.” Cross W. Waste Indus., 2015 Ark. App. 476, 7, 469
S.W.3d 820, 825 (2015). As a property owner, Walgreens owed a duty to Daniels, an invitee, to
exercise ordinary care to maintain its premises in a reasonably safe condition.2 See Cowan v. Ellison
Enter., Inc., 93 Ark. App. 135, 143, 217 S.W.3d 175, 180 (2005).
The facts of this case are few and simple. On January 31, 2015, Daniels visited the
Walgreens pharmacy on East Harding Avenue in Pine Bluff, Arkansas. Daniels entered the
pharmacy without incident, but when leaving she tripped on a mat positioned on the concrete

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The parties agree that Daniels was an invitee. Document #27 at 1, ¶1.
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sidewalk immediately outside the door. Daniels had visited that Walgreens many times prior to the
incident without trouble. Neither Walgreens nor Daniels knows of anyone else who tripped on the
mat. Walgreens submitted security footage of Daniels walking over the mat as she entered the store
and tripping over the mat as she exited the store. Document #21-1. Daniels exited the sliding doors
and stepped onto the mat with her left foot. Then, her right toe caught the back edge of the mat and
lifted it up from underneath, folding part of it over itself. She then lost her balance and tripped over
the mat. The video shows that at least the part of the mat that caused Daniels to trip was not secured
to the floor surface.
The issue is whether Walgreens breached its duty. Daniels must show either that the
presence of the mat on the floor was the result of Walgreens’s failure to use ordinary care or that
Walgreens knew or reasonably should have known that the mat was a tripping hazard and failed to
use ordinary care to remove it. See Walmart Stores, Inc. v. Regions Bank Trust Dept., 347 Ark. 826,
832, 69 S.W.3d 20, 23-24 (2002) (collecting slip-and-fall cases). Walgreens says that Daniels has
offered no proof of negligence, apart from the fact that she tripped and fell on the mat. Document
#22 at 5. The mere fact that Daniels tripped and fell is not enough to create a genuine dispute as to
breach. See Conagra, Inc. v. Strother, 340 Ark. 672, 676, 13 S.W.3d 150, 153 (2000). See also
Alexander v. Town and Country Discount Foods, Inc., 316 Ark. 446, 447, 872 S.W. 2d 390 (1994)
(explaining in case where plaintiff tripped and fell over a mat as she was entering defendant’s store
that the doctrine of res ipsa loquitur does not apply in slip-and-fall cases). Daniels says that a
reasonably careful property owner would not place an unsecured mat immediately outside a
building’s exit. Document #26 at 3.
The Arkansas Court of Appeals has explained in a case involving an invitee who tripped over
a doormat what evidence is necessary to show that a property owner breached its duty. In AutoZone
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v. Horton, Wanda Horton fell walking into an AutoZone store. Autozone v. Horton, 87 Ark. App.
349, 350, 192 S.W.3d 291, 293 (2004). Horton maintained that her foot got caught in an unsecured
doormat that protruded above an adjacent doormat, which caused her to fall. Id. AutoZone said it
was not negligent and had no knowledge of any “abnormal condition” of the mats. Id.
Two former Autozone employees testified at the trial. Id. at 351, 192 S.W.3d at 293. The
first testified that he tripped over the mats at least twice during his six and a half years at the store,
but that he had no knowledge of a customer tripping over the mats. Id. The mats curled up several
times as he pushed a dolly over them, but he straightened them out afterward. Id. The second
employee testified that she had never seen the mats overlap one another, except for after Horton
tripped. Id. The mats did not curl up when she pushed a dolly over them. Id. She had no
knowledge of anyone other than Horton tripping over the mats. Id. at 351, 192 S.W.3d at 293-94.
A jury found for Horton and awarded her $31,000. Id. at 350-51, 192 S.W.3d at 293. On
appeal, AutoZone argued that “it exercised ordinary care in placing mats in front of its door, that
there was no evidence that the mats were placed in any way other than a reasonable manner, and that
the mere fact that Horton slipped and fell on the mat does not give rise to any inference of
negligence.” Id. at 354, 192 S.W.3d at 295. Horton argued the AutoZone employee’s testimony that
he had tripped over the mats and witnessed them curl up was direct evidence that AutoZone knew
the mats were a hazard but did nothing about it. Id. She also argued that AutoZone should have
known that rolling carts or dollies over the mats would cause them to curl up, endangering invitees.
Id. The court disagreed with Horton:
Although a former employee of AutoZone testified that he had tripped on the mat
and that it buckled when he rolled a heavy dolly across it, he testified that he
straightened the mat each time it buckled. He and another former employee stated
that they had not seen anyone trip, and neither of them testified that they had seen
the mat buckle when used by other employees. Horton herself testified that she
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observed the mats to be flat and smooth and that she saw nothing unusual as she
approached them.

***
The evidence presented, viewed in the light most favorable to Horton, showed that
her shoe was under the mat after she fell. The jury could only have speculated that
any unusual condition of the mats resulted directly from AutoZone's negligence, and
that such condition of the mats caused Horton to fall. The evidence does not establish
that AutoZone breached any duty of care to Horton.
Id. at 355, 192 S.W.3d at 296.
The facts in this case are similar to those in Autozone but with one difference: Daniels has
presented evidence that Walgreens’ placement of the mat violated the Arkansas Fire Prevention
Code.3 Document #26 at 8. In Arkansas, the violation of a statute, code, or regulation does not
constitute negligence per se but may be evidence of negligence. Cent. Oklahoma Pipeline, Inc. v.
Hawk Field Servs., LLC, 2012 Ark. 157, 17, 400 S.W.3d 701, 712. A violation of a statute, code,
or regulation can be considered evidence of negligence even if the statute, code, or regulation is
intended to protect a class of persons that does not include the plaintiff. Koch v. Northport Health
Servs. of Ark., LLC, 361 Ark. 192, 208, 205 S.W.3d 754, 766 (2005) (citing Dunn v. Brimer, 259
Ark. 855, 856-57, 537 S.W.2d 164, 166 (1976)). Even if the regulation is directed at a situation
other than the one at hand, it may be “evidence of the type of consideration that should bear on the
reasonable person.” Id.
The Fire Prevention Act charges the Director of the Arkansas State Police or the State Fire
Marshal with the responsibility of promulgating and enforcing a fire prevention code. Ark. Code
Ann. § 12-13-101, et. seq. The Arkansas State Police adopted the current Arkansas Fire Prevention

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Daniels also argues that the mat was a violation of the ADA and OSHA regulations.
Because evidence that Walgreens violated the relevant fire code is sufficient to defeat summary
judgment, the Court will defer deciding whether the ADA and OSHA regulations are relevant to
whether Walgreens breached its duty of care owed to Daniels.
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Code on January 1, 2014. The code is intended to prevent fires and reduce the number of fire
hazard-related concerns; it establishes minimum rules for fire and building safety and binds all cities
within the state, though a city is free to enact more stringent rules. See Ark. Code Ann. § 12-13-108;
42 Ark. Gov’t Reg. 12 (LexisNexis Nov. 2003). Pine Bluff has formally adopted by reference the
current edition of the code. Pine Bluff, Ark., Code of Ordinances § 10.51 (2017) (citing Ark. Code
Ann. § 14-55-207). Daniels submits the following provisions of the fire code from Volume II
Chapter 10, which governs means of egress from buildings, including Walgreens:
1001.1 General. Buildings or portions thereof shall be provided with a means of
egress system as required by this chapter. The provisions of this chapter shall
control the design, construction and arrangement of means of egress components
required to provide an approved means of egress from structures and portions
thereof.
1003.4 Floor surface. Walking surfaces of the means of egress shall have a slipresistant surface and be securely attached.
Ark. Fire Prevention Code §§ 1001.1 & 1003.4 (2012).4 Chapter 2 defines terms used throughout
the code, including Chapter 10:
MEANS OF EGRESS. A continuous and unobstructed path of vertical and
horizontal egress travel from any occupied portion of a building or structure to a
public way. A means of egress consists of three separate and distinct parts: the exit
access, the exit and the exit discharge.
EXIT. That portion of a means of egress system between the exit access and the exit
discharge or public way. Exit components include exterior exit doors at the level of
exit discharge, interior exit stairways, interior exit ramps, exit passageways, exterior
exit stairways and exterior exit ramps and horizontal exits.
EXIT ACCESS. That portion of a means of egress system that leads from an
occupied portion of a building or structure to an exit.
EXIT DISCHARGE. That portion of a means of egress system between the
termination of an exit and a public way.

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http://codes.iccsafe.org/public/chapter/content/571/.
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PUBLIC WAY. A street, alley or other parcel of land open to the outside air
leading to a street, that has been deeded, dedicated or otherwise permanently
appropriated to the public for public use and which has a clear width and height of
not less than 10 feet (3048 mm).
Ark. Fire Prevention Code § 202 (2012).5 Walgreens says there is no requirement that a mat be
“mechanically attached” to the ground. Document #22 at 10. While that is true, the code
nevertheless requires the walking surface to be “securely attached.” Ark. Fire Prevention Code §
1003.4. Testimony by Walgreens employees indicate that the mat at issue was not secured to the
floor surface in any way, although another mat was secured to the floor surface. Document #25-1
at 2-3. Proof that Walgreens violated the fire code generates a genuine dispute as to whether
Walgreens maintained its premises in a reasonably safe condition. See Ark. La. Gas Co. v.
Stracener, 239 Ark. 1001, 1005, 395 S.W.2d 745, 748 (1965). Therefore, it is for the jury to decide
whether Walgreens was negligent.
CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment is DENIED.
Document #21.
IT IS SO ORDERED this 26th day of July, 2017.

__________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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http://codes.iccsafe.org/public/chapter/content/563/.
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