Zalas v. Wal-Mart Stores Inc
Filing
28
ORDER granting 20 Defendant's Motion for Summary Judgment. Case is dismissed. Signed by Judge Rudy Lozano on 8/8/11. (smp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SHARON ZALAS,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
WAL-MART STORES, INC.,
Defendant.
No.
3:10-CV-166
OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for
Summary Judgment, filed on January 13, 2011.
forth below, this motion is GRANTED.
For the reasons set
Accordingly, this case is
dismissed.
BACKGROUND
In April of 2010, Plaintiff, Sharon Zalas (“Zalas”), filed a
complaint
in
St.
Joseph
Circuit
Court
arising
from
injuries
allegedly incurred while shopping in a store owned by Defendant,
Wal-Mart, Stores, Inc. (“Wal-Mart”).
removed
this
jurisdiction.
case
here
Wal-Mart
based
has
now
on
On April 29, 2010, Wal-Mart
diversity
filed
the
of
instant
citizenship
motion for
summary judgment, asserting that there is no genuine issue of
material fact and it is entitled to judgment as a matter of law.
-1-
DISCUSSION
Summary Judgment Standard
The standards that generally govern summary judgment motions
are familiar. Pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure, summary judgment is proper only if it is demonstrated
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.
See
Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
In other words, the record
must reveal that no reasonable jury could find for the nonmovant.
Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th
Cir. 1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986).
In deciding a motion for summary judgment, a court
must view all facts in the light most favorable to the nonmovant.
Anderson, 477 U.S. at 255; Nucor Corp. v. Aceros Y Maquilas De
Occidente, 28 F.3d 572, 583 (7th Cir. 1994).
The burden is upon the movant to identify those portions of
"the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits," if any, that the
movant believes demonstrate an absence of a genuine issue of
material fact.
Celotex, 477 U.S. at 323.
Once the movant has met
this burden, the nonmovant may not rest upon mere allegations but
"must set forth specific facts showing that there is a genuine
issue for trial."
Fed. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill
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Assocs., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v.
Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989).
"Whether
a
fact
is
material
depends
on
the
substantive
law
underlying a particular claim and 'only disputes over facts that
might affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment.'"
Walter v.
Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988) (citing Anderson, 477
U.S. at 248).
"[A] party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue of
material fact which requires trial." Beard v. Whitley County REMC,
840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original); see also
Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1391 (7th Cir. 1993).
Therefore, if a party fails to establish the existence of an
essential element on which the party bears the burden of proof at
trial, summary judgment will be appropriate.
Facts
The facts are undisputed1. Accordingly, this Court adopts and
reiterates the undisputed facts that are supported by the record.
1
Zalas does not argue or specify that any of Wal-Mart’s designated facts
are disputed. In fact, Zalas characterizes Wal-Mart’s designated facts as
“undisputed.” (Zalas Resp. p. 5). What Zalas argues is that the undisputed
facts give rise to genuine issues that need to be resolved by trial.
-3-
On October 8, 2008, Zalas was shopping at the Wal-Mart Store on
Ireland Road in South Bend, Indiana. (Dep. Zalas at p. 10). Zalas
had shopped in the dairy department, then came back towards the
meat department and turned to go down the produce aisle. (Dep.
Zalas at p. 10). At this point, Zalas was pushing a shopping cart
and heading toward the cash registers. (Dep. Zalas at p. 12). Zalas
was not looking for any items in the produce aisle, but instead was
looking towards the cash register. (Dep. Zalas at pp. 13-14).
As Zalas was walking through the produce department, she
slipped and fell on a tomato which was lying on the floor in the
produce section. (Dep. Zalas at p. 29).
Shortly thereafter, Wal-
Mart assistant managers Brian Bartlette (“Bartlette”) and Gail
Shuamber (“Shuamber”) arrived at the scene. (Deposition of Zalas at
p. 17; Deposition of Bartlette at p. 11; Deposition of Shuamber p.
19).
The tomatoes in the produce department are kept in a slanted
rack near the aisle way where the tomato was on the floor. (Dep.
Bartlette at pp. 34-35). Zalas’ slip and fall happened at what is
considered a slower time of the day for Wal-Mart in terms of
numbers of customers present. (Dep. Shuamber at pg. 34).
After Zalas left the store, Shuamber, who was then the Produce
Merchandise Supervisor, went to view the surveillance video. (Dep.
Shuamber at pp. 28, 36). Shuamber viewed the video for the five to
ten minutes prior to the incident. (Dep. Shuamber at p. 31).
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Shuamber saw a small child in a cart drop the tomato from the cart
onto the floor. (Dep. Shuamber at p. 31). The tomato then sat on
the floor for approximately one to two minutes. (Dep. Shuamber at
p. 31).
The surveillance video shows that at 2:36:00, the floor of the
produce department was clear, without any tomatoes on the floor.
(Aff. Nicholas Schafer (“Schafer”) at ¶ 5). Approximately twenty
seconds later a crowd of shoppers formed in the produce aisle, in
front of the racks of tomatoes. (Aff. Schafer at ¶ 6). The crowd of
shoppers remained in front of the tomato racks until approximately
2:37:55, when the crowd dissipated and the tomato became visible on
the floor. (Aff. Schafer at ¶ 7). Approximately 30 seconds later,
at 2:38:30, Zalas is seen pushing her cart down the aisle, falling
on the tomato. (Aff. Schafer at ¶ 8). Accordingly, the tomato was
on the floor for not more than two minutes and ten seconds before
Zalas’ fall.
Wal-Mart video surveillance cameras are not monitored on a
live basis. (Dep. Shuamber at p. 28; Aff. Schafer at ¶ 3). This is
consistent with the standard practice in the retail merchant asset
protection industry. (Aff. Schafer at ¶ 3).
At all times, there was a Wal-Mart associate present in the
produce
area.
responsibilities
(Deposition
of
produce
of
Shuamber
associates
at
include
p.
32).
zoning.
Job
(Dep.
Shuamber at p. 33). Zoning involves picking up items that are on
-5-
the floor, or other misplaced items, and returning them to the
proper place. (Dep. Shuamber at p. 33). Wal-Mart associates are
trained that if any object, including produce, is on the floor,
they are to stop and pick it up. (Dep. Bartlette at p. 53).
Wal-Mart associates working the produce floor are required to
make a sweep of the produce area. (Dep. Bartlette at pp. 38-39). A
sweep involves the associate walking through the area and checking
certain things, including the condition of the produce area floor.
(Dep. Bartlette at pp. 38-39). A Wal-Mart associate was seen on the
surveillance video walking through the produce area, conducting a
sweep, shortly before the tomato could be seen on the floor. (Dep.
Shuamber at pp. 62-63; Dep. Jason McCoy (“McCoy”) pp. 21-32). The
Wal-Mart associate had inspected the area within fifteen minutes
before Zalas slipped and fell. (Dep. Shuamber at p. 63; Dep. McCoy
pp. 21-32).
Summary judgment in favor of Wal-Mart is
appropriate because the undisputed facts establish
that Wal-Mart had neither actual or constructive knowledge
of the tomato on the floor that caused Zalas to slip and fall.
It is undisputed that Zalas was a business invitee while at
Wal-Mart.
Burrell v. Meads, 569 N.E.2d 637, 642 (1991).
As such,
Wal-Mart “owed her a duty to exercise reasonable care for her
protection while she remained on the premises.”
Golba v. Kohl’s
Dep’t Store, Inc., 585 N.E.2d 14, 15 (Ind. Ct. App. 1992).
this duty means is that:
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What
A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land
if, but only if, he
(a)
knows or by the exercise of reasonable care
would discover the condition, and should
realize that it involves an unreasonable risk
of harm to such invitees, and
(b)
should expect that they will not discover or
realize the danger, or will fail to protect
themselves against it, and
(c)
fails to exercise reasonable care to protect
them against the danger.
Id. (quoting Restatement (Second) of Torts § 343 (1995)).
Wal-Mart argues that there is no evidence that it had either
actual or constructive notice of the tomato which caused Zalas to
fall.
Zalas argues that the undisputed facts raise genuine issues
regarding whether Wal-Mart had actual or constructive notice of the
tomato on the floor.
Typically, “the determination of whether a host has exercised
reasonable care in making his premises safe for an invitee is a
question of fact for the jury.”
Golba, 585 N.E.2d at 16 (citing
St. Casimir Church v. Frankiewicz, 563 N.E.2d 1331, 1334 (Ind. Ct.
App. 1990)).
Indeed, “summary judgment is not proper in a slip-
and-fall case where the question whether the store had actual or
constructive notice is unresolved.”
Id. (citations omitted).
However, when there is undisputed evidence that the store did not
have actual or constructive notice of the dangers condition and
that reasonable precautions were taken to protect customers from
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items on the ground, then summary judgment is appropriate.
Id. at
16-17.
Both parties rely on the Indiana Court of Appeals’ Golba
decision to support their respective positions.
In Golba, while
shopping at a Kohl’s department store, Stella Golba stepped on a
rounded object, which in combination with the high gloss finish on
the floor caused her to fall.
In discovery, Kohl’s indicated that
it swept the floor earlier that morning and that the floor would
have been visually inspected at that time. There was no evidence
that the floor was swept immediately before Golba slipped, only
that it was swept “earlier in the morning.”
The accident occurred
around 10:50 a.m. that morning. Kohl’s did not deny that there was
some type of wax or polishing agent applied to the floor, although
it did not specifically identify the substance.
Based upon these
facts, the trial court granted summary judgment in favor of Kohl’s.
However, the court of appeals reversed that decision. The court of
appeals stated, “we must conclude that there was an object on the
floor upon which she slipped.
We must also infer that the object
was on the floor for a sufficient amount of time that morning such
that we cannot say as a matter of law there could not have been
constructive knowledge of the object.”
Golba, 585 F.E.2d at 17.
In addition, the court found that “Kohl’s has a corresponding duty
to take reasonable care to protect its customers from [items being
dropped on the ground]. The only evidence of preventative measures
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taken by Kohl’s was that its employees swept the floors of the
store in the morning.
sweeping
the
floor
We cannot say as a matter of law that
once
a
day
constitutes
the
exercise
of
reasonable care to prevent injury to customers from objects on the
floor.”
Id.
Ultimately, there were a number of issues of material
fact, “including whether there was in fact a rounded object on the
floor, whether the floor was inordinately slippery, and if so,
whether
Kohl’s
condition.
knew
or
should
have
known
of
the
dangerous
Id.
While issues of fact remained for the jury in Golba, which
precluded the entry of summary judgment, no such unresolved issues
are present in this case.
To start, unlike the object on the floor
in Golba that could have been on the floor for hours, the tomato on
the floor in this case was only on the floor for no more than 2
minutes and 10 seconds.
In Golba, because the evidence was on the
floor for an unspecified period of time, there was a question for
the jury as to whether Kohl’s had constructive knowledge of the
object on the floor.
Here, however, the undisputed evidence is
that the tomato was on the floor for no more than 2 minutes and 10
seconds.
This is such an extremely short period of time that this
Court can say as a matter of law that Wal-Mart did not have
constructive knowledge of the tomato on the floor.2
Moreover, while the only evidence of preventative measures
2
of the
In addition, it is undisputed that Wal-Mart did not have actual notice
tomato on the floor prior to Zalas’ fall.
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Kohl’s took in Golba was a morning sweep of the floors, Wal-Mart
has its employees regularly conduct visual sweeps of the aisles.
In fact, a Wal-Mart employee conducted a visual sweep of the aisle
Zalas fell in no longer than 15 minutes before Zalas fell.
As a
result, there is no question that Wal-Mart took reasonable measures
to prevent injuries to customers from objects on the floor.3
This Court recognizes that summary judgment is rarely granted
in these types of slip-and-fall cases.
However, because the
undisputed facts show that Wal-Mart took reasonable measures to
prevent injuries to customers from objects on the floor and because
Wal-Mart did not have either actual or constructive knowledge of
the tomato on the floor, summary judgment is appropriate in this
case.
CONCLUSION
For the reasons set forth above, Defendant’s motion for
summary judgment is GRANTED.
DATED:
Accordingly, this case is dismissed.
August 8, 2011
/s/RUDY LOZANO, Judge
United States District Court
3
Wal-Mart’s failure to retain multiple videos of Zalas’ fall does not
change this Court’s opinion. Nor does the fact that a child was viewed on the
surveillance video dropping items onto the floor. What is at issue is the
length of time that the tomato was on the floor and whether Wal-Mart had
actual or constructive knowledge of it being on the floor.
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