Bylo v. K-Mart Corporation

Filing 26

MEMORANDUM AND ORDER re: 22 MOTION for New Trial filed by Plaintiff Juanita F. Bylo, 25 MOTION to Strike 24 Memorandum in Opposition to Motion, and, Alternatively, Motion for Leave to File Sur-Reply filed by Defendant K-Mart Corporation. IT IS HEREBY ORDERED that the plaintiff's motion for new trial (#22) is DENIED. IT IS FURTHER ORDERED that the defendant's motion to strike reply and, alternatively, motion for leave to file sur-reply (#25), is GRANTED in part in that the sur-reply will be allowed. Signed by District Judge Stephen N. Limbaugh, Jr on 3/23/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JUANITA BYLO,
Plaintiff,
v.
K-MART CORPORATION,
Defendant.

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Case No. 4:13CV2083 SNLJ

MEMORANDUM and ORDER
This matter is before the Court on plaintiff’s motion for new trial (#22). The
motion has been fully briefed and is ready for disposition.
This Court granted defendant’s motion for summary judgment on September 30,
2014. Plaintiff’s premises liability complaint stated 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.)
The parties agreed that plaintiff was an invitee for purposes of premises liability
law under Missouri law. 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.
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Rycraw v. White Castle Systems, Inc., 28 S.W.3d 495, 499 (Mo.App. E.D. 2000);
Roberson v. AFC Enterprises, Inc., 602 F.3d 931, 934 (8th Cir. 2010).
The facts were undisputed and included that 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
muscles.
Defendant argued on summary judgment 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 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. However, plaintiff had not advanced
such a theory in her complaint, and she could not 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). Here, plaintiff produced 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.
thus granted summary judgment.

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The Court

Plaintiff now seeks a “new trial” pursuant to Federal Rule of Civil Procedure
59(a). Both parties agree that plaintiff more properly seeks to alter or amend judgment
under Rule 59(e), and the Court will treat the motion as such. Under Rule 59(e), the
Court may correct “manifest errors of law or fact or to present newly discovered
evidence.” Innovative Home Health Care, Inc. v. P.T.-O.T. Associates of the Black Hills,
141 F.3d 1284, 1286 (8th Cir. 1998) (internal quotations omitted). “Such motions cannot
be used to introduce new evidence, tender new legal theories, or raise arguments which
could have been offered or raised prior to entry of judgment.” Id.
Plaintiff insists there was an issue of fact regarding whether a dangerous condition
existed, and plaintiff relies upon evidence that plaintiff testified that the floor was
slippery. However, plaintiff still fails to support her argument that the defendant knew
about the alleged dangerous condition of the floor. And her new theory of an inherently
slippery floor is not the proper basis for a Rule 59(e) motion. See id.1
Plaintiff also seeks to distinguish Fever, 2013 WL 5966046, which was discussed
in this Court’s summary judgment memorandum. 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. 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. Plaintiff points out that the defendant in Fever set forth evidence
1

There is some discussion in the briefing of this matter regarding whether or not plaintiff was wearing socks at the
time of the fall. In her deposition, she states that she was barefooted, having removed her socks to try on sandals.
Later, she states that she is not sure because so much time had passed. Plaintiff’s complaint actually alleged that the
floor was wet, although she seems to agree that was not the case.
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regarding the dance floor’s slip-proof surface and the plaintiff’s intoxication. That the
defendant here did not set forth such evidence is irrelevant, however, in light of the
plaintiff’s failure to show defendant had an opportunity to know about a dangerous
condition. Plaintiff’s new argument --- that the floor was “inherently slipperly” --- is
again not the proper subject for this motion.
As a result, plaintiff seeks to amend her complaint now, observing that the
defendant filed its motion for summary judgment months before the discovery deadline
expired. If plaintiff believed she was prejudiced as a result of that early filing, plaintiff
should have objected at the time. Plaintiff did not do so. Plaintiff’s motion and her late
request to amend her complaint will be denied.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff’s motion for new trial (#22) is
DENIED.
IT IS FURTHER ORDERED that the defendant’s motion to strike reply and,
alternatively, motion for leave to file sur-reply (#25), is GRANTED in part in that the
sur-reply will be allowed.
Dated this 23rd day of March, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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