Bylo v. K-Mart Corporation
MEMORANDUM OPINION re: 15 MOTION for Summary Judgment filed by Defendant K-Mart Corporation. Because plaintiff failed to present sufficient evidence that would allow a reasonable jury to find the defendant knew, or by using ordinary ca re should have known, that the tiled floor of its shoe department constituted a dangerous condition, plaintiff cannot prove one of the necessary elements of her premises liability claim. Accordingly, defendant's motion for summary judgment (#15) is granted and judgment is entered in favor of defendant with each party to bear her or its own costs. Signed by District Judge Stephen N. Limbaugh, Jr on 9/30/14. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Case No. 4:13CV2083 SNLJ
Plaintiff filed a premises liability action in state court that was removed to this
Court based on diversity jurisdiction. This matter is before the Court on defendant’s
motion for summary judgment (#15).
This is a slip and fall case that plaintiff originally filed in the Circuit Court of St.
Charles County against defendant K-Mart Corporation. Defendant filed its notice of
removal in this Court based on diversity jurisdiction under 28 U.S.C. § 1332.
Plaintiff’s complaint alleges that she was shopping at a K-Mart store on September
9, 2008 when she attempted to try on a pair of shoes. Her complaint states that she
“raised her foot to try on a shoe when she slipped and fell on the wet tiled floor of the
said premises.” (#3 at ¶ 5.) Plaintiff alleges that she sustained severe injuries as a result
of the fall. She states that defendant was negligent in failing to provide seating for
customers trying on shoes, failing to place “wet floor” signs in the area, and failing to
give notice and warn persons walking over the wet flooring of its dangerous condition.
(Id. at ¶ 6.) Plaintiff claims defendant is liable to her for her damages under a theory of
Defendant has filed a motion for summary judgment. Plaintiff filed a response
brief in opposition, and defendant replied. The matter is now ripe for disposition.
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a
motion for summary judgment if all of the information before the court demonstrates that
“there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
burden is on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc.,
838 F.2d 268, 273 (8th Cir.1988). After the moving party discharges this burden, the
nonmoving party must do more than show that there is some doubt as to the facts.
Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead,
the nonmoving party bears the burden of setting forth affirmative evidence and specific
facts by affidavit and other evidence showing that there is a genuine dispute of a material
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex, 477 U.S. at 324.
“A dispute about a material fact is ‘genuine’ only ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Herring v. Canada Life
Assur. Co., 207 F.3d 1026, 1030 (8th Cir. 2000) (quoting Anderson, 477 U.S. at 248). A
party resisting summary judgment has the burden to designate the specific facts that
create a triable controversy. See Crossley v. Georgia–Pacific Corp., 355 F.3d 1112, 1114
(8th Cir. 2004). Self-serving, conclusory statements without support are not sufficient to
defeat summary judgment. Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279
(8th Cir. 1993).
In ruling on a motion for summary judgment, the court must review the facts in a
light most favorable to the party opposing the motion and give that party the benefit of
any inferences that logically can be drawn from those facts. Matsushita, 475 U.S. at 587;
Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The court is
required to resolve all conflicts of evidence in favor of the nonmoving party. Robert
Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).
The movant’s statement of facts are deemed admitted if not specifically
controverted by the party opposing the motion. Local Rule 4.01 (E) provides:
A memorandum in support of a motion for summary judgment shall have
attached a statement of uncontroverted material facts, set forth in a
separately numbered paragraph for each fact, indicating whether each fact
is established by the record, and if so, the appropriate citations. Every
memorandum in opposition shall include a statement of material facts as to
which the party contends a genuine issue exists. Those matters in dispute
shall be set forth with specific references to portions of the record, where
available, upon which the opposing party relies. The opposing party also
shall note for all disputed facts the paragraph number from movant’s listing
of facts. All matters set forth in the statement of the movant shall be
deemed admitted for purposes of summary judgment unless specifically
controverted by the opposing party.
(emphasis added). Even where all of movant’s statements of fact are deemed admitted,
the Court must look at the entire record to determine whether summary judgment is
With these principles in mind, the Court turns to the discussion.
Plaintiff claims she was injured when she fell down while trying on shoes at
defendant’s store. The parties agree that plaintiff was an invitee for purposes of premises
liability law under Missouri law. “The general duty owed to an invitee by the owner of
the premises is the exercise of reasonable and ordinary care in making the premises safe.”
Rycraw v. White Castle Systems, Inc., 28 S.W.3d 495, 499 (Mo.App. E.D. 2000). An
injured invitee must prove: 1) a dangerous condition existed on defendant’s property, 2)
defendant knew, or by using ordinary care should have known, of the condition, 3)
defendant failed to use ordinary care in removing or warning of the danger, and 4) invitee
sustained injuries as a result of the dangerous condition. Id.; Roberson v. AFC
Enterprises, Inc., 602 F.3d 931, 934 (8th Cir. 2010).
Because plaintiff failed to controvert defendant’s statement of facts, those facts are
deemed admitted for purposes of summary judgment. O’Connell v. Accurate Plumbing,
LLC, 4:04CV1368 FRB, 2005 WL 2176926, at *2 (E.D. Mo. Sept. 8, 2005) (citing
Northwest Bank & Trust Co. v. First Ill. Nat’l Bank, 354 F.3d 721, 724-25 (8th Cir.
2003); Harris v. Interstate Brands Corp., 348 F.3d 761, 762-63 (8th Cir. 2003)). The
facts that are deemed admitted include the following: there was no water, debris, or any
other substance on the floor; the floor was a hard surface; and plaintiff suffers from a
condition known as “polymyositis,” which is characterized by a weakness in the subject’s
Defendant argues that plaintiff admitted in discovery responses that there was no
water or other debris on the floor, and thus that she cannot show there was a dangerous
condition that caused plaintiff to fall. Plaintiff responds that defendant knew it had a
shoe department with a slippery tile floor and that invitees would try on shoes while
standing up because there was no place to sit down. Plaintiff contends that defendant had
a duty to warn or to make the condition safe, which could mean providing a stool on
which shoppers could sit to try on shoes.
Defendant replies that plaintiff did not advance this theory of liability in her
complaint --- the complaint mentioned only that the floor was wet, and not that the
“dangerous condition” was the floor itself. Indeed, plaintiff may not so-amend her
complaint through summary judgment briefing. See Morgan Distrib. Co., Inc. v.
Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989). Even if plaintiff were able to
advance this new theory of liability, it would fail. To avoid summary judgment, plaintiff
must show that there is evidence to show that defendant had an opportunity to know
about a dangerous condition before plaintiff fell. See Fever v. Westin, St. Louis, No.
4:12CV9 SNLJ, 2013 WL 5966046, *3 (E.D. Mo. Nov. 8, 2013). In Fever, the plaintiff
fell on a hotel dance floor and claimed the hotel was liable for her injuries due to the
dance floor’s “slippery” dangerous condition. Id. The defendant hotel was granted
summary judgment because plaintiff produced no evidence that the dance floor was wet
or otherwise so slippery that it would allow a reasonable jury to find the defendant knew
it constituted a dangerous condition. Id. Similarly, here, plaintiff produces no evidence
(expert or otherwise) except her bare assertion that the tile floor must have been
dangerous because she fell on it after removing her shoes and attempting to try on a
different pair of shoes.
Because plaintiff failed to present sufficient evidence that would allow a
reasonable jury to find the defendant knew, or by using ordinary care should have known,
that the tiled floor of its shoe department constituted a dangerous condition, plaintiff
cannot prove one of the necessary elements of her premises liability claim. Accordingly,
defendant’s motion for summary judgment (#15) is granted and judgment is entered in
favor of defendant with each party to bear her or its own costs.
Dated this 30th day of September, 2014.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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