Sanderson v. Wal-Mart Stores East
Filing
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MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 7/13/2018. Denying 13 Motion for Summary Judgment. cc: Counsel(KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:17-CV-00148-TBR
RONNIE SANDERSON,
PLAINTIFF
v.
WAL-MART STORES EAST, L.P.,
DEFENDANT
Memorandum Opinion & Order
This matter comes before the Court upon Motion by Defendant Wal-Mart Stores East,
L.P., (“Wal-Mart”), for summary judgment. [DN 13.] Plaintiff Ronnie Sanderson, (“Sanderson”),
has responded, [DN 15], and Wal-Mart has replied. [DN 16.] This matter is ripe for adjudication
and, for the reasons that follow, IT IS HEREBY ORDERED that Wal-Mart’s Motion, [DN 13],
is DENIED.
A. Background
This case arises out of events which occurred on November 3, 2016 at a Wal-Mart store
located in McCracken County, Kentucky. [DN 1-2, at 2.] Sanderson was a Wal-Mart patron and,
on that date, he entered the store in question at approximately 9:56 a.m. [DN 13-1, at 2; see also
DN 13-2, (Shannon Larkins Affidavit).] The store’s security camera footage, attached to WalMart’s instant Motion, confirms this. [See id.] Immediately upon entering the store, and walking
out of view of the security camera, Sanderson slipped and fell down, fracturing his right knee
cap. [DN 15, at 1.] A couple of minutes before Sanderson entered the store that morning, the
security camera footage shows another Wal-Mart patron tip over a cup she had placed in the
upper basket of her shopping cart. [DN 13-2, (Security Camera Footage).] The patron quickly
turns the cup back upright as she leaves the screen, as if to prevent or limit a spill. [Id.] It is
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uncontested that some sort of “yellow liquid substance” was present on the floor near the store’s
entrance in the area where Sanderson fell. [See DN 13-1, at 3.]
Sanderson originally filed this lawsuit in McCracken County, Kentucky Circuit Court on
August 11, 2017. [DN 1-2.] On September 26, 2017, Wal-Mart removed the case to the Western
District of Kentucky. [DN 1.] Now, Wal-Mart seeks summary judgment. [DN 13.] The merits of
this Motion are discussed below.
B. Legal Standard
This case was removed to federal court on the basis of diversity jurisdiction, pursuant to
28 U.S.C. § 1332. However, as Kentucky remains the forum state, this Court will apply
Kentucky substantive law. See Himmel v. Ford Motor Co., 342 F.3d 593, 598 (6th Cir. 2003).
Notwithstanding this, “federal procedural law will govern as applicable, including in establishing
the appropriate summary judgment standard.” Johnson v. Wal-Mart Stores East, L.P., 169 F.
Supp. 3d 700, 702-03 (E.D. Ky. 2016) (citing Weaver v. Caldwell Tanks, Inc., 190 F. App’x 404,
408 (6th Cir. 2006)).
Federal Rule of Civil Procedure 56 instructs that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. The court should state on the record the
reasons for granting or denying the motion.” Fed. R. Civ. P. 56(a). “In deciding a motion for
summary judgment, the court must view the evidence and draw all reasonable inferences in favor
of the nonmoving party.” Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir.
2001) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Further, “[t]he judge is not to ‘weigh the evidence and determine the truth of the matter but to
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determine whether there is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986)).
“The moving party bears the initial burden of demonstrating that no genuine issue of
material fact exists.” Am. Guarantee and Liability Ins. Co. v. Norfolk S. Rwy. Co., 278 F. Supp.
3d 1025, 1037 (E.D. Tenn. 2017) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The movant “may discharge this burden either by producing evidence that demonstrates the
absence of a genuine issue of material fact or simply ‘by showing—that is, pointing out to the
district court—that there is an absence of evidence to support the nonmoving party’s case.’” Id.
(quoting Celotex, 477 U.S. at 325). If the movant carries his or her burden here, “[t]he nonmoving party…may not rest upon its mere allegations or denials of the adverse party’s pleadings,
but rather must set forth specific facts showing that there is a genuine issue for trial.” Moldowan
v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 47 U.S. at 586). Finally,
“[t]he mere existence of a scintilla of evidence in support of the non-moving party’s position will
be insufficient to defeat a motion for summary judgment; there must be evidence on which the
jury could reasonably find for the non-moving party.” Id. (internal citations and brackets
omitted). This means that “[i]f the [non-moving] party fails to make a sufficient showing on
an[y] essential element of its case with respect to which it has the burden of proof, the moving
party is entitled to summary judgment.” Am. Guarantee and Liability Ins. Co., 278 F. Supp. 3d at
1037 (citing Celotex, 477 U.S. 323).
C. Discussion
“This is a negligence case, which requires proof that (1) the defendant owed the plaintiff
a duty of care, (2) the defendant breached the standard by which his or her duty is measured, and
(3) consequent injury.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003) (citations
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omitted). “‘Consequent injury’ consists of what hornbooks separate into two distinct elements:
actual injury or harm to the plaintiff and legal causation between the defendant’s breach and the
plaintiff’s injury.” Id. at 88-89 (citations omitted). “The element of duty is a question of law for
the court to decide, breach and injury are questions of fact for the jury to decide, and causation is
a mixed question of law and fact.” Johnson, 169 F. Supp. 3d at 703 (citing Pathways, 113
S.W.3d at 89). A court is precluded from entering summary judgment in favor of a defendant
where there remains “a genuine dispute as to any material fact concerning the elements of duty,
breach, or causation, such that a reasonable jury could find that [the defendant] was
negligent….” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). This is a
“slip-and-fall” case involving a commercial business, Wal-Mart, and a patron of one of its stores,
Sanderson. Accordingly, this Court looks to firmly established Kentucky law concerning
premises liability and the duties and responsibilities placed upon business owners with respect to
their customers.
“Under Kentucky law, a property owner, such as Defendant, must exercise reasonable
care to protect invitees, such as Plaintiff, from hazardous conditions that the property owner
knew about or should have discovered and the invitee could not be expected to discover.”
Denney v. Steak N Shake Operations, Inc., 559 F. App’x 485, 487 (6th Cir. 2014) (citing Lanier
v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 432-33 (Ky. 2003)). As the Sixth Circuit Court of
Appeals, applying Kentucky law, has instructed, “[t]he plaintiff must ultimately prove
negligence on the part of the property owner,” but in order “to survive a motion for summary
judgment, a plaintiff need only show” the three following things: “‘(1) he or she had an
encounter with a foreign substance or other dangerous condition on the business premises; (2)
the encounter was a substantial factor in causing the accident and the customer’s injuries; and (3)
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by reason of the presence of the substance or condition, the business premises were not in a
reasonably safe condition for the use of business invitees.’” Id. (quoting Martin v. Mekanhart
Corp., 113 S.W.3d 95, 98 (Ky. 2003)). Should the plaintiff succeed in showing these three
things, “the burden shifts to the defendant to prove the absence of negligence.” Id. (citing Bartley
v. Educ. Training Sys., Inc., 134 S.W.3d 612, 616 (Ky. 2004)). This burden-shifting approach to
slip-and-fall cases was announced in 2003 by the Kentucky Supreme Court in Lanier in an effort
to find a middle ground in the area of premises liability law, preserving the maxim “that a
business is not an insurer of its patrons’ safety and is not strictly liable for injuries suffered by a
customer on its premises.” Lanier, 99 S.W.3d at 436 (citations omitted).
In the present case, with respect to the Lanier analysis, Wal-Mart states the following:
[t]here is no genuine issue as to the material fact of what caused Sanderson to slip
and fall in the Wal-Mart store…Necessarily this motion must be decided in the
light of Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431 (Ky. 2003). Sanderson
has sustained his burden [of] creating a rebuttable presumption of negligence
sufficient to avoid summary judgment on that account, and the burden [has]
shifted to Wal-Mart to prove it exercised reasonable care.
[DN 13-1, at 7.] Thus, the Court will presume for purposes of this Motion that Sanderson has
succeeded in showing the three above-listed elements, meaning that the burden-shifting process
has already occurred, and in order for Wal-Mart to prevail on its Motion, it must “prove the
absence of negligence.” See Denney, 559 F. App’x at 487.
After conceding that Sanderson has sustained the initial burden placed upon him, WalMart cites to this Court’s previous decision in Woltman v. Pepsi Mid-America Co., No. 5:07-cv74-R, 2008 WL 2038880 (W.D. Ky. May 12, 2008) as support for its position that summary
judgment is appropriate here. There, this Court noted that “even if it had applied the Lanier
burden shifting approach Kroger would still be entitled to summary judgment,” because, “after
Lanier, although the plaintiff may meet his or her initial burden, the defendant may still succeed
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on a motion for summary judgment if the defendant can prove ‘that it exercised reasonable care
in the maintenance of the premises under the circumstances.’” Id. at *3 (quoting Lanier, 99
S.W.3d at 435). In Woltman, this Court granted summary judgment to Kroger because Pepsi
Mid-America was responsible for stocking the beverage shelves with Pepsi products, and the
plaintiff’s own testimony indicated “that she was hit with the bottle immediately after the Pepsi
representative placed a case of cans on the shelf directly in front of her, the force of which
caused the bottle to fall.” Id. at*4. Thus, “Kroger could not have discovered the dangerous
condition prior to the accident,” and it was “entitled to summary judgement under the Lanier
approach.” Id. (citing Lanier, 99 S.W.3d at 436-37).
Here, Wal-Mart likens the facts of Woltman to those of this case, and argues that it only
had one minute and thirty-six seconds to discover the hazard and protect customers like
Sanderson from it. [DN 13-1, at 8.] Wal-Mart goes on: “[t]he hazard was a small puddle of pale
yellow liquid on a light tile floor, not a shovel, a skateboard or even a banana peel or grape,” and
was “a spill that…went unnoticed by Sanderson who slipped in it.” [Id.] Additionally, “[t]here
was no Wal-Mart associate in the area to discover the almost invisible hazard in that short time
interval,” which means that, in Wal-Mart’s view, it “could not have, in the exercise of reasonable
care, discovered the spill of the…liquid…before Sanderson slipped and fell in it.” [Id.] The “one
minute and thirty-six seconds” refers to the length of time in between when the female patron
tipped over the cup in the upper basket of her shopping cart and when Sanderson entered the
store and slipped on the floor. [See DN 16 at 2, (Wal-Mart arguing that “[t]here is no genuine
issue as to the material fact that a customer caused a spill onto the tile floor, and Sanderson
slipped and fell in it one minute and thirty-six seconds later….”).]
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However, while the security camera footage does depict a cup in the female patron’s
shopping cart, that cup tipping over, and her quickly setting it back upright, the footage does not
show any of the following things: liquid actually pouring out of the cup; any resultant spill on the
floor from the cup (or any spill at all); or Sanderson slipping and falling in a resultant pale
yellow liquid. Indeed, the security camera footage does not show Sanderson slipping and falling
at all. Thus, while Wal-Mart argues that there is no “genuine issue” that the female patron spilled
a beverage and that Sanderson slipped in it, the evidence adduced so far does not actually bear
out that conclusion. And in Sanderson’s Response, he argues as much: “Wal-Mart repeatedly
attempts to assert…[that] the liquid tips over in camera sight. Conversely, Sanderson falls in a
different area out of view of the camera sight…Defendant is relying solely on speculative
allegations to reach the implication that this tipped cup caused the liquid which Sanderson
slipped in to come into being on the floor.” [DN 15, at 4-5.] In other words, Sanderson has not
conceded that the cup was the source of the yellow liquid on the ground, or that the cup in
question even had any liquid in it at all. [Id.]
Moreover, looking back to Woltman, one of the key facts this Court examined in reaching
its determination that summary judgment in favor of the defendant was appropriate was that the
plaintiff admitted “that she was hit with the bottle immediately after the Pepsi representative
placed the cans on the shelf…, the force of which caused the bottle to fall.” Woltman, 2008 WL
2038880, at *4 (emphasis added). Conversely, in this case there has been no such admission.
Wal-Mart has not obtained any testimony from the female patron who it contends spilled the pale
yellow liquid in question, and so it cannot be definitively said that she did, in fact, cause such a
spill. Nor has Wal-Mart obtained testimony from Sanderson indicating that he saw such a spill
occur, and/or that he fell in such a spill immediately after it was created. In short, Woltman
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contained established facts which provided this Court with the necessary answer that summary
judgment was appropriate, whereas no such facts have been conclusively established here.
Wal-Mart also draws considerable attention to the fact that, “approximately three minutes
before Sanderson’s fall, two Wal-Mart associates, Shannon Larkins, (“Larkins”) and Brittany
Ward (“Ward”), as Asset Protection Manager and Assistant manager respectively of the WalMart store,” were in the affected area “and inspected the tile floor where Sanderson slipped and
fell, and there was no slip hazard on that floor, no pale yellow liquid less than two feet long and
two inches wide as shown in the photograph later taken….” [DN 16, at 1; see also DN 19-2, at 34, Ward Dep., p. 10-7.] Of course though, there is a large distinction to be made between WalMart’s contention that, approximately three minutes before the accident, there was no pale
yellow liquid on the floor, and the more appropriate conclusion that Ward and Larkin did not see
any pale yellow liquid on the floor (or any other slipping hazard for that matter). The legal
standard is that the property owner in question “must exercise reasonable care to protect
invitees…from hazardous conditions that the property owner knew about or should have
discovered and the invitee could not be expected to discover.” Denney, 559 F. App’x at 487
(emphasis added). Sanderson does not here contend that Ward and Larkin are being untruthful in
their testimony that no hazards were discovered during their walkthrough a few minutes prior to
his accident, but the question remains whether there was a hazard they should have discovered at
that time. Finally, as noted above, Wal-Mart actually references the fact that the spill was one
that even “went unnoticed by Sanderson,” [DN 13-1, at 8], but this fact only lends itself to
Sanderson’s argument that the spill was a hazard that he, as an invitee of Wal-Mart, “could not
be expected to discover.” Denney, 559 F. App’x at 487.
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Issues remain concerning whether liquid was actually spilled from the unknown patron’s
cup; whether the pale yellow liquid was from that cup or had already been there and, relatedly,
how long the pale yellow liquid had been on the floor; and whether this slipping hazard was
already on the floor when Ward and Larkin conducted their walkthrough and they should
reasonably have discovered it. Because of this, the Court cannot grant summary judgment, and
Wal-Mart’s Motion must be denied.
D. Conclusion
For the reasons stated in this Memorandum Opinion, and the Court being otherwise
sufficiently advised, IT IS HEREBY ORDERED that Wal-Mart’s Motion, [DN 13], is
DENIED.
IT IS SO ORDERED.
July 13, 2018
cc:
Counsel of Record
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