Covey v. Wal-Mart Stores East I, LP

Filing 66

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Signed on 10/3/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
LEA ANN COVEY,
Plaintiff,
vs.
WAL-MART STORES EAST, L.P.,
Defendant.

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Case No. 16-01262-CV-W-ODS

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pending is Defendant Wal-Mart Stores East, LP’s Motion for Summary
Judgment. Doc. #49. As explained below, the Court finds that there are genuine
disputes of material facts. Accordingly, the Court denies Defendant’s motion for
summary judgment.
I. BACKGROUND1
Defendant owns and operates a Walmart store in Richmond, Missouri. On
December 17, 2015, Plaintiff went to this store for groceries. Plaintiff testified the
ground was wet when she got out of her car and walked into Walmart, and it was also
raining when she left the store. Upon exiting the store, Plaintiff pushed a shopping cart
toward her vehicle.
As Plaintiff approached her vehicle, she noticed a pool of water had formed
around a low and uneven grade around a landscaping island. Plaintiff walked around
the edge of the pool of water, but then “hit something slick” with her right foot, slipped,
and fell on her back. Doc. #50-1, at 10. While on her back, Plaintiff looked around and

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The following facts are taken from the parties’ briefs and exhibits, without further
quotation or attribution unless otherwise noted. These facts are either uncontroverted
by the parties or deemed uncontroverted by the Court. Only those facts necessary to
resolve the Motion are discussed below, and those facts are simplified to the extent
possible. Any citation to a page number refers to the pagination automatically
generated by CM/ECF.

saw that it was “shiny on the edge” of the pool of water. Doc. #51-4, at 4.2 Plaintiff
alleges her fall resulted in injuries and medical expenses.
On September 7, 2016, Plaintiff filed this negligence suit against Defendant.
Plaintiff contends Defendant failed to keep the parking lot in a reasonably safe
condition. Specifically, Plaintiff alleges that “[d]ue to the uneven grade of the parking
lot, and unknown to Plaintiff, water had pooled in a low area of the parking lot and
formed ice.” Doc. #15, at 2. Plaintiff alleges in part that Defendant “failed to use
ordinary care to remove the ice, to barricade around the ice, and to warn of the ice[.]”
Doc. #15, at 3.
Defendant now moves for summary judgment. Defendant argues any ice or
water accumulation was caused by natural weather conditions, and it had no duty to
remove the accumulation. Doc. #50, at 4-6; See, e.g., Alexander v. Am. Lodging, Inc.,
786 S.W.2d 599, 601 (Mo. Ct. App. 1990) (recognizing that “invitors...are not required to
remove snow or ice which accumulates naturally and is a condition general to the
community.”). Defendant also argues it did not assume any duty through action or
otherwise. Doc. #50, at 6-7. Plaintiff argues her claim is based on the defective
construction of Defendant’s parking lot, not existing weather conditions, and genuine
disputes of material facts remain. Doc. #51, at 1-2.

II. STANDARDS
A moving party is entitled to summary judgment on a claim only if there is a
showing that “there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Williams v. City of St. Louis, 783 F.2d 114,
115 (8th Cir. 1986). “[W]hile the materiality determination rests on the substantive law,
it is the substantive law’s identification of which facts are critical and which facts are
irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Wierman v.
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Plaintiff testified that she believed she slipped on ice (Doc. #51-4, at 6), and she did
not know whether she slipped on water or ice. Doc. #50-1, at 13. Any inconsistency
with this testimony is not a basis to grant summary judgment in favor of Defendant, but
may provide a basis to impeach Plaintiff at trial.
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Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted). In applying
this standard, the Court must view the evidence in the light most favorable to the nonmoving party, giving that party the benefit of all inferences that may be reasonably
drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 588-89 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984). However, a
party opposing a motion for summary judgment “may not rest upon the mere allegations
or denials of the…pleadings, but…by affidavits or as otherwise provided in [Rule 56],
must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ.
P. 56(e).
“To prove a negligence claim[], Plaintiff has to establish the existence of a duty, a
breach of that duty, and damages caused by that breach. The existence of a duty is
purely a question of law.” Paikowsky v. Davidson Hotel Co., No. 08CV783, 2010 WL
2628379, at * 4 (E.D. Mo. June 25, 2010); see also Hansen v. Ritter, 375 S.W.3d 201,
208 (Mo. Ct. App. 2012). Pertinent to this case, “an owner or occupier of private
property generally has no duty to remove snow or ice that has accumulated naturally on
outside areas as a result of general conditions within the community.” Wilson v. SiegelRobert, Inc., No. 10-CV-56, 2011 WL 4857866, at * 2 (E.D. Mo. Oct. 13, 2011). “To
hold that a duty exists to make a parking lot safe as precipitation falls from the sky
would be to create a duty which would be virtually impossible to perform.” Milford v.
May Dep’t Stores Co., 761 S.W.2d 231, 232 (Mo. Ct. App. 1988).
A landowner may, however, have a duty to make an area safe if it “artificially
creates, through negligence or affirmative action, a condition that makes passage
unsafe.” Cooper v. Capital Invest., LLC, 204 S.W.3d 331, 335 (Mo. Ct. App. 2006).
Additionally, once a landowner attempts to remove naturally accumulating snow or ice,
case law imposes “a duty to exercise ordinary care to remove the snow and ice to make
the common area reasonably safe.” Alexander, 786 S.W.2d at 601; see also Gorman v.
Wal-Mart Stores, Inc., 19 S.W.3d 725, 732 (Mo. Ct. App. 2000).

III. DISCUSSION
After reviewing the record, the Court finds Defendant’s arguments in support of
summary judgment are not supported by the record. In opposing Defendant’s motion,

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Plaintiff states “Defendant attempts to frame Plaintiff’s claim as a claim for ‘then-existing
weather conditions.’ Defendant mischaracterizes Plaintiff’s claim. Plaintiff’s claim is
defendant negligently allowed a structural defect in its south parking lot to exist which
allowed water to pool, creating a dangerous winter ice hazard. Defendant knew or
should have known of this dangerous condition in time to remove, barricade or warn of
the danger.” Doc. #51, at 14-15.
Plaintiff presents sufficient evidence to support her structural defect claim. In
particular, “the testimonies of [Wilber] McCoy, the store’s general manager, and cartpushers [Jacob] Koelzer and [Tristan] Wallace, [arguably] establish the condition of the
south parking lot had not changed in the several months before and the several months
after the Incident. Those facts lay a sufficient foundation for a jury to infer the flooding
in the low spot around the landscaping island occurring after the Incident ‘pretty much
every time it rained’ or ‘there was a decent rain’ (PSAMF at ¶¶ 38 and 47), also
occurred on many occasions before the Incident and Wal Mart was negligent in failing to
remedy, barricade or warn of the dangerous condition before Plaintiff was injured.” Doc.
#51, at 18. For similar reasons, the Court agrees with Plaintiff that a jury could also find
that “the ice located at the location of the pooled water around the landscaping island
was not a condition general to the community[.]” Doc. #51, at 23; Smith v. The
Callaway Bank, 359 S.W.3d 545, 547 (Mo. Ct. App. 2012) (“Whether a defendant’s
conduct falls short of the standard of care is generally a question of fact for the jury.”).
Accordingly, the Court denies Defendant’s motion for summary judgment.
Defendant also argues summary judgment is warranted because Plaintiff was
required, but failed, to identify an expert witness. This argument is not supported by the
applicable facts and law. The facts of this case are not complex or technical, and a jury
can easily resolve Plaintiff’s claim without the assistance of an expert. Parra v. Bldg.
Erection Serv., 982 S.W.2d 278, 285 (Mo. Ct. App. 1998) (“[E]xpert testimony is not
required when the fact finder has been given enough information to be able to evaluate
the facts of a case.”) (internal quotes omitted).

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IV. CONCLUSION
For the above reasons, the Court denies Defendant’s motion for summary
judgment. Consistent with the discussion above, Plaintiff will be limited to its structural
defect theory at trial, and may not characterize Defendant’s alleged negligence as a
failure to remove snow or ice that accumulated naturally in the parking lot.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: October 3, 2017

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