Sandage v. Wal-Mart Stores, Inc.
MEMORANDUM AND ORDER denying Defendant's 19 Motion for Summary Judgment. Signed by District Judge Julie A. Robinson on 02/09/2015. (mg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WAL-MART STORES, INC.,
Case No. 14-CV-2013-JAR
MEMORANDUM AND ORDER
This is a negligence action involving a “slip and fall” by Plaintiff Lalauna Sandage at a
store owned and operated by Defendant Wal-Mart Stores, Inc. Before the Court is Defendant’s
Motion for Summary Judgment (Doc. 19). The motion is fully briefed and the Court is prepared
to rule. For the reasons stated in detail below, the Court denies Defendant’s motion.
The facts of this case are largely uncontroverted; to the extent they are, the Court views
them in the light most favorable to Plaintiff. On June 13, 2012, Plaintiff was shopping at a WalMart store in Hays, Kansas. She entered a certain aisle at about 7:22 p.m. After shopping in that
aisle for a few minutes, Plaintiff slipped and fell.
A Wal-Mart surveillance camera captured the incident on video. The video shows
Plaintiff entering an aisle with display shelves on each side—one row of shelves lining the right
side of the aisle, another row of shelves lining the left. A plastic bin sat on the floor against the
left row of shelves. Plaintiff parked her shopping cart in the center of the aisle near this plastic
bin and began looking at items displayed on the row of shelves to the right. As Plaintiff moved
forward to select an item from one of those shelves, she stepped into a small puddle of water.
Noticing the puddle, she took a step backward and looked up to determine whether water was
dripping from the ceiling.
Plaintiff did not notify a Wal-Mart employee of the puddle; instead, she continued
shopping along the row of shelves lining the right side of the aisle, stepping in the same puddle
several times as she did so. Plaintiff never looked at the shelves on the left side of the aisle, but
focused exclusively on the row of shelves to the right. After proceeding in this manner for about
one minute, Plaintiff stepped backward to gain a better view of the items on the shelves to the
right. She then turned and crossed for the first time between her shopping cart, which was still
situated in the center of the aisle, and the plastic bin laying beside the row of shelves on the left.
She slipped and fell to the ground as she passed by the plastic bin, sustaining injuries to her
back, neck, and head.
Plaintiff admits that prior to her fall she was aware of the small puddle on the right side
of the aisle. She declares in an affidavit, however, that a separate, previously undetected puddle
sat on the left side of the aisle next to the plastic bin, and that it was this second puddle that
caused her to fall. Though Plaintiff does not know the precise size of the second puddle, it was
large enough that her “clothes were soaked by the time [she] got to the hospital.”1 She also
states that the second puddle was difficult to see because of the glossy finish of Wal-Mart’s
white tile floor and because the plastic bin hid the puddle from her view. Defendant asserts, to
the contrary, that the danger posed by the water was open and obvious, and that Defendant was
Doc. 20-2 at 2.
therefore under no legal duty to protect Plaintiff from the hazard that caused her injuries.
Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is “no
genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.”2 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.3 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”4 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”5 An issue
of fact is “genuine” if “‘the evidence is such that a reasonable jury could return a verdict for the
The moving party bears the initial burden of providing the court with the basis for the
motion and identifying those portions of the record that show the absence of a genuine issue of
material fact.7 “A movant that will not bear the burden of persuasion at trial need not negate the
nonmovant’s claim.”8 The burden may be met by showing that there is no evidence to support
Fed. R. Civ. P. 56(a).
City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).
Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp., 477 U.S. at
the nonmoving party’s case.9 If this initial burden is met, the nonmovant must then “go beyond
the pleadings and ‘set forth specific facts’ that would be admissible in evidence in the event of
trial from which a rational trier of fact could find for the nonmovant.”10
To accomplish this, the facts “must be identified by reference to an affidavit, a deposition
transcript, or a specific exhibit incorporated therein.”11 Rule 56(c)(4) provides that opposing
affidavits must be made on personal knowledge and shall set forth such facts as would be
admissible in evidence.12 The non-moving party cannot avoid summary judgment by repeating
conclusory opinions, allegations unsupported by specific facts, or speculation.13
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of
every action.”14 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”15
Plaintiff claims that Defendant maintained its premises in an unsafe condition and failed
Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).
Fed. R. Civ. P. 56(c)(4).
Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).
to warn her of and protect her from the puddle of water on which she slipped. Defendant
responds that because the water sitting on the aisle floor was an open and obvious danger,
Defendant owed Plaintiff no duty to protect her from the hazard that caused her to fall.
The parties agree that Kansas law governs this case. To establish negligence under
Kansas law, a plaintiff must show that the defendant breached a duty of care owed to the
plaintiff, that the plaintiff was injured, and that a causal connection existed between the duty
breached and the injury sustained.16 The presence or absence of negligence is normally a
question of fact for a jury to determine.17 The court, however, may resolve the issue by summary
judgment where the facts of the case will support only one conclusion and reasonable minds
cannot differ as to that conclusion. 18 In addition, the threshold issue of the existence of a legal
duty is generally a question of law to be decided by the court.19
The record in this case establishes that Plaintiff, a Wal-Mart customer, was a business
invitee of Defendant at the time of her fall.20 Under Kansas law, the duty owed by the owner of a
business to a business invitee is to exercise reasonable care to keep the premises safe and to warn
an invitee of dangers of which the owner knows or should know by exercising reasonable
Honeycutt v. City of Wichita, 836 P.2d 1128, 1136 (Kan. 1992).
See Lay v. Kansas Dep’t of Transp., 928 P.2d 920, 924 (Kan. Ct. App. 1996) (citing St. Clair v. Denny,
781 P.2d 1043, 1045 (Kan. 1989)).
Id. (citing Baker v. City of Garden City, 731 P.2d 278, 280 (Kan. 1987)).
McGee v. Chalfant, 806 P.2d 980, 983 (Kan. 1991).
See Gerchberg v. Loney, 576 P.2d 593, 596 (Kan. 1978) (“An invitee is one who enters or remains on the
premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter,
or for the mutual benefit and advantage of both inviter and invitee.”), overruled on other grounds by Bowers v.
Ottenad, 729 P.2d 1103, 1114 (Kan. 1986); see also Smith v. Locke Supply Co., No. 98-2495-JWL, 1999 WL
1423070, at *2 (D. Kan. Dec. 21, 1999) (holding that a plaintiff who tripped and fell while shopping at the
defendant’s store was a business invitee of the defendant).
diligence.21 The owner of a business is not an insurer against all accidents.22 But the proprietor
of a store “does owe to customers who enter the premises, while the establishment is open for
business, the duty of exercising ordinary care to keep the aisles, passageways and such other
parts of the premises as are ordinarily used by customers in transacting business in a reasonably
safe condition for use by the persons thus entering.”23
Here, because Plaintiff was a business invitee, Defendant owed her a duty to keep its
aisle floors in reasonably safe condition. Defendant concedes this much. Defendant points out,
however, that there is no duty to protect customers from dangers that are readily apparent and
observable.24 Indeed, Kansas courts follow the rule set forth in § 343A of the Restatement
(Second) of Torts, providing that “[a] possessor of land is not liable to his invitee for physical
harm caused to them by any activity or condition on the land whose danger is known or obvious
to them, unless the possessor should anticipate the harm despite such knowledge or
obviousness.”25 Though the presence or absence of a legal duty is generally a question of law,
the question of “knowledge or obviousness” is a question of fact which normally must be
See Sewell v. Wal-Mart Inc., No. 91-4053-S, 1992 WL 198874, at *3 (D. Kan. Aug. 5, 1992).
Thompson v. Beard & Gabelman, 216 P.2d 798, 800 (Kan. 1950).
See Smith, 1999 WL 1423070, at *4.
Scales v. St. Louis-San Francisco Ry. Co., 582 P.2d 300, 306 (Kan. 1978) (quoting Restatement (Second)
of Torts § 343A(1)); see also Restatement (Second) of Torts § 343A(1) cmt. b (“The word ‘known’ denotes not only
knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. . . .
‘Obvious’ means that both the condition and the risk are apparent to and would be recognized by a reasonable man,
in the position of the visitor, exercising ordinary perception, intelligence, and judgment.”).
determined by a jury.26 The issue before the Court in this case, therefore, is whether a reasonable
trier of fact could find that the water which caused Plaintiff’s fall did not constitute a known or
Defendant argues that because Plaintiff knew about the presence of water on the aisle
floor prior to her fall, the danger that caused her injuries was “known or obvious” as a matter of
law. The Court disagrees. To be sure, Plaintiff admits that she knew about the puddle of water
sitting on the floor near the shelves lining the right side of the aisle. But she does not claim that
puddle caused her fall. Instead, Plaintiff claims she slipped and fell on a second, previously
unnoticed puddle that had collected near the row of shelves on the left side of the aisle. The
evidence, viewed in the light most favorable to Plaintiff, corroborates this version of events.
Though Defendant’s surveillance video lacks the display resolution necessary to determine the
existence or location of the alleged puddles, the video clearly shows Plaintiff examining a
substance on the floor on the right side of the aisle, then later slipping and falling as she stepped
in a completely different spot on the aisle’s left side. Plaintiff had not walked near this latter
spot prior to her fall. In addition, a recorded interview administered two days after the incident
See, e.g., Wagoner v. Dollar Gen. Corp., 955 F. Supp. 2d 1220, 1228 (D. Kan. 2013) (applying Kansas
law and denying a motion for summary judgment because a factual dispute existed as to whether a condition was
open and obvious); Wilson v. Wal-Mart Stores, Inc., No. 07-2263-JWL, 2008 WL 2622895, at *10 (D. Kan. June 30,
2008) (“Whether the conditions were open and obvious is for the jury to determine.”) (citing Bell v. Andler Corp.,
No. 90-4094-R, 1992 WL 331282, at *1 (D. Kan. 1982)); accord Zinn v. Gichner Sys. Grp., 880 F. Supp. 311, 316
(M.D. Pa. 1995) (applying Pennsylvania law); Pullia v. Builders Square, Inc., 638 N.E.2d 688, 693–94 (Ill. App. Ct.
The Court notes that defendants generally have a duty to warn business invitees of dangerous floor
conditions only if defendants have actual or constructive notice of the dangerous conditions. See Smith, 1999 WL
1423070, at *3 (citing Sewell v. Wal-Mart Stores, Inc., No. 91-4053-S, 1992 WL 198874 (D. Kan. Aug. 5, 1992);
Carter v. Food Center, Inc., 485 P.2d 306, 309 (Kan. 1971)). In this case, however, Defendant does not raise lack of
actual or constructive notice as a basis for its motion for summary judgment. The Court, therefore, will not address
the issue of Defendant’s notice as to the condition which caused Plaintiff’s fall. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986).
tends to support the declaration in Plaintiff’s affidavit that a separate puddle of water contributed
to the accident: Plaintiff stated in that interview that she landed in a puddle that “was big enough
that . . . [her] clothes were soaked by the time [she] got to the hospital.”28
The record also contains facts supporting Plaintiff’s contention that the second puddle
was not readily apparent. Defendant’s surveillance video suggests that the store’s tile floor was,
in fact, glossy and white, which might have made a puddle of water difficult for Plaintiff to
notice unless she stepped in that puddle first.29 The plastic bin sitting on the aisle floor could
have further obstructed Plaintiff’s view of the second puddle, as she had to step around the bin to
reach the spot where she eventually fell. Moreover, as Plaintiff shopped, she focused her
attention on the display shelves rather than on the aisle floor. A rational jury could find that she
was reasonable to do so: a grocery store customer “would necessarily be required to pay close
attention to the shelves and would not ordinarily be expected to watch the floor and each step
Defendant contends that even if there was a second puddle of water on the aisle floor, the
second puddle was open and obvious because Plaintiff was aware of spilled water in the “general
area” prior to her fall. Defendant cites no authority for this general-area theory. And under the
circumstances presented here, the Court finds that the question of obviousness is one for the jury.
Reasonable minds can differ as to whether the alleged second puddle should have been apparent
Doc. 20-2 at 2.
See Villareal v. Wal-Mart Stores, Inc., No. CIV-06-193-C, 2007 WL 14573, at *3 (W.D. Okla. Jan. 3,
2007) (finding that a puddle of clear liquid on a white tile floor could not be deemed open and obvious as a matter of
Warren v. T.G. & Y. Stores Co., 499 P.2d 201, 203 (Kan. 1972).
to Plaintiff after she encountered the first puddle. The surveillance video shows that at the time
Plaintiff noticed the first puddle, the second puddle would have been outside of her scope of
vision, as the spot where she eventually slipped and fell was located behind her and to her right.
Plaintiff’s reaction to the first puddle, in fact, was to look up toward the ceiling rather than to her
right or left, suggesting that the only water she could see was confined to a small area directly in
front of her. The facts of the case do not disclose any reason for Plaintiff to have suspected that
water might be standing in more than one spot in her vicinity. Absent circumstances suggesting
that multiple puddles were especially likely to be present at the time of the incident,31 the Court
cannot conclude as a matter of law that Plaintiff’s knowledge of the first puddle should have
placed her on notice of all other puddles that might have accumulated elsewhere in the aisle.
Defendant, finally, argues that this case is similar to Smith v. Locke Supply Co.,32 which
granted summary judgment in favor of a defendant-supply store. Smith involved a plaintiff who
tripped and fell after using one of the store’s telephones.33 The plaintiff alleged that after he
hung up the telephone, he turned around, took half a step, and tripped over a box that someone
had placed directly behind him.34 Store employees disputed this version of events, asserting that
the plaintiff had tripped over his own feet and that no boxes were nearby at the time he fell.35
Cf., e.g., Hagin v. Winn-Dixie Stores, Inc., 348 S.E.2d 766, 767 (Ga. Ct. App. 1986) (affirming summary
judgment in favor of a grocery store where the plaintiff, on a rainy day, slipped and fell on a puddle of water just
inside the grocery store’s entranceway: “when it rains, the ordinary person is aware that water is apt to be found in
any area frequented by people coming in from the rain outside”).
Smith v. Locke Supply Co., No. 98-2495-JWL, 1999 WL 1423070 (D. Kan. Dec. 21, 1999).
Id. at *1.
The court noted that the plaintiff did not claim ever to have seen the box that tripped him;
instead, he simply stated that he “must have” tripped over a box that someone had placed in his
way.36 The court thus granted summary judgment for the defendant, holding that the plaintiff
failed to present concrete facts in support of his claim that he had tripped over a box.37 The only
evidence that the store contained boxes at all, in fact, was the plaintiff’s assertion that he had
noticed some boxes stacked near the defendant’s Pepsi machine. But to the extent the plaintiff
argued that those boxes had tripped him, the court found, the danger posed by those boxes was
open and obvious: the plaintiff admitted that he was aware of the boxes stacked near the Pepsi
machine prior to his fall.38
The case now before the Court differs from Smith in at least two material respects. First,
unlike the record in Smith, the record here contains concrete, admissible evidence that the hazard
Plaintiff claims to have slipped on actually existed. Plaintiff declares in her affidavit that she fell
after stepping in a puddle of water sitting on the left side of the aisle floor.39 That assertion is
consistent with a recorded statement Plaintiff gave two days after the incident, which indicates
that she slipped and fell in a puddle that soaked her clothes.40 And Defendant’s surveillance
video shows that after Plaintiff had been helped off the floor, Wal-Mart employees spent at least
one minute using paper towels to clean up the spot where Plaintiff had slipped and fallen.41
Id. at *3.
Id. at *4.
Doc. 26 ¶ 12.
Doc. 20-2 at 2.
Def. Ex. C at 7:27:51–7:29:00.
These facts go beyond “mere conjecture or speculation,”42 and could convince a rational jury that
Plaintiff did, in fact, slip on a puddle of water as she claims. Second, the water Plaintiff slipped
on in this case is unlike the boxes that the Smith court found to be open and obvious dangers. In
Smith, the court assumed for the sake of argument that the plaintiff had tripped over some boxes
stacked near the defendant’s Pepsi machine, since those were the only boxes whose existence
was supported by the record; the court found that those boxes were open and obvious because
the plaintiff admitted that he was aware of them before he fell.43 Here, by contrast, Plaintiff
claims that she was unaware of the puddle that caused her fall. A reasonable jury could so find:
as already explained, Plaintiff’s knowledge of the puddle she initially stepped in did not
necessarily place her on notice that other puddles were present in the same aisle.
On the facts of this case, a reasonable jury could find that although the first puddle
Plaintiff encountered was open and obvious, the puddle that she actually slipped on was not.
Accordingly, the Court finds a genuine issue of material fact as to whether the condition that
caused Plaintiff’s injuries presented a “known or obvious” danger. Defendant’s motion for
summary judgment is denied.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment
(Doc. 19) is denied.
Dated: February 9, 2015
S/ Julie A. Robinson
Cf. Smith, 1999 WL 1423070, at *3 (finding that the plaintiff failed to present evidence, beyond his mere
speculation, suggesting that he had actually tripped over a box).
See id. at *4 (“[T]o the extent that plaintiff claims defendant failed to warn him of the danger of the boxes
stacked next to the Pepsi machine, there is no duty to protect or warn an invitee about dangers readily apparent and
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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