STIMPSON v. WALMART, INC. et al

Filing 49

MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 01/03/2025, that Defendant Walmart's Partial Motion for Summary Judgment, (ECF No. 34 ), is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment, (ECF No. 37 ), is DENIED. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JUAN STIMPSON
Plaintiff,
v.
WALMART, INC., et. al.,
Defendants.

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1:23CV655

MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Juan Stimpson (“Plaintiff”) brought this action pursuant to North Carolina common
law, against Walmart Inc. (“Defendant Walmart”) and Tristate Commercial Doors & Services,
Inc., (“Defendant Tristate”). (ECF No. 3 ¶ 3-4.) Plaintiff alleges that during a visit to
Defendant Walmart’s store he experienced an injury caused by a malfunction of the automatic
sliding doors at the entrance of the building. (ECF No. 3 ¶¶ 16-17.) Before the Court is
Defendant Walmart’s Motion for Partial Summary Judgment. (ECF No. 34.) Additionally,
Plaintiff filed a Motion for Summary Judgment. (ECF No. 37.) For the reasons stated herein,
Defendant Walmart’s Motion for Partial Summary Judgment will be denied, and Plaintiff’s
Motion for Summary Judgment will likewise be denied.
I.

BACKGROUND
On June 26, 2020, Plaintiff arrived at one of Defendant Walmart’s stores in Randolph

County, North Carolina. (ECF No. 38-2 ¶ 1.) Upon his arrival one of Walmart’s employees
began unlocking the automatic sliding doors to allow in patrons, as the store was opening for

the day. (Id. ¶¶ 2-5.) Plaintiff walked through the doors behind other individuals, and as he
entered the doors closed on him. (Id. ¶ 7.) The closing doors hit Plaintiff on his right arm in
the elbow area. (Id.) The Walmart employee then grabbed the door and pulled it back open.
(Id. ¶ 8.) Immediately following the incident, Plaintiff began to feel severe pain and noticed
swelling and bruising on his elbow. (ECF No. 41-3 ¶ 2.) A few days after the incident, Plaintiff
went to the doctor and was placed in a cast for six weeks due to a fractured bone in his elbow.
(ECF No. 38-2 ¶ 10.) He also underwent three surgeries on his elbow to address nerve
damage. (Id. ¶ 11.)
On August 8, 2023, Plaintiff filed the instant Complaint alleging three causes of action.
(ECF No. 3 ¶¶ 28-64.) Two of Plaintiff’s claims are against Defendant Walmart, negligence
and premises liability, and the third cause of action, products liability, was against Defendant
Tristate. (Id.) On May 5, 2024, the parties filed a stipulation of dismissal only as to Defendant
Tristate, dismissing them from the action. (ECF No. 23 at 1.) Following discovery, Defendant
Walmart filed a Motion for Partial Summary Judgment on the issue of causation relating to
Plaintiff’s negligence claim. (ECF No. 34 at 1.) Plaintiff filed a Motion for Summary Judgment
on his claim of negligence and Defendant Walmart’s affirmative defenses of contributory
negligence and gross contributory negligence. (ECF No. 37 at 1.) The Court will address each
motion in turn.
II.

STANDARD OF REVIEW
Summary judgment is appropriate when “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.” Fed.
R. Civ. P. 56(a). “A dispute is genuine if a reasonable jury could return a verdict for the
nonmoving party.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 568 (4th Cir. 2015)
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(internal citations and quotations omitted). “[I]n deciding a motion for summary judgment, a
district court is required to view the evidence in the light most favorable to the nonmovant”
and to “draw all reasonable inferences in his favor.” Harris v. Pittman, 927 F.3d 266, 272 (4th
Cir. 2019) (citing Jacobs, 780 F.3d at 568). A court “cannot weigh the evidence or make
credibility determinations,” Jacobs, 780 F.3d at 569 (citations omitted), and thus must “usually”
adopt “the [nonmovant’s] version of the facts,” even if it seems unlikely that the nonmoving
party would prevail at trial. Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276 (4th Cir.
2011) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)).
Where the nonmovant will bear the burden of proof at trial, the party seeking summary
judgment bears the initial burden of “pointing out to the district court . . . that there is an
absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). If the moving party carries this burden, then the burden shifts to the
nonmoving party to point out “specific facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In so doing, “the
nonmoving party must rely on more than conclusory allegations, mere speculation, the
building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash
v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). Instead, the nonmoving party must support
its assertions by “citing to particular parts of . . . the record” or “showing that the materials
cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1); see also
Celotex, 477 U.S. at 324.
III.

PARTIAL MOTION FOR SUMMARY JUDGMENT
Defendant Walmart filed a Motion for Partial Summary Judgment based on the sole

issue of causation as to Plaintiff’s claim of negligence. Defendant Walmart argues that Plaintiff
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failed to establish a reasonable degree of medical certainty to prove that the incident with the
automatic doors was a proximate cause of his injuries. (ECF No. 45 at 2.) Plaintiff counters
that he has provided sufficient evidence to establish a genuine dispute as to causation through
affidavits, a deposition, and his medical records. (ECF No. 41 at 6-9.)
To prove common law negligence, plaintiff bears the burden of demonstrating that: (1)
the defendant owed a duty of care; (2) there was a breach of that duty; and (3) the breach of
the duty was a proximate cause of the injury suffered by the plaintiff. Andresen v. Progress Energy,
Inc., 696 S.E.2d 159, 161 (N.C. Ct. App. 2010) (citations omitted). As Defendant Walmart
proffers that it is entitled to summary judgment on the issue of causation, (ECF No. 35 at 2.),
the Court will solely focus on the issue of proximate cause with respect to Walmart’s motion.
Under North Carolina law, proximate cause is defined as (1) “a cause which in natural
and continuous sequence, unbroken by any new and independent cause, produced the
plaintiff’s injuries, and without which the injuries would not have occurred,” and (2) “one
from which a person of ordinary prudence could have reasonably foreseen that such a result,
or consequences of a generally injurious nature, was probable under all the facts as they
existed.” Hawkins v. Emergency Med. Physicians of Craven Cnty., PLLC., 770 S.E.2d 159, 162-63
(N.C. Ct. App. 2015) (citations omitted).
Medical evidence is not required to prove causation in every negligence case alleging
personal injury in North Carolina. Taylor v. Shreeji Swami, Inc., 820 F. App’x 174, 176 (4th Cir.
2020) (quoting Gillikin v. Burbage, 139 S.E.2d 753, 760 (N.C. 1965)). However, medical expert
testimony is necessary when the alleged injury manifests in a manner that is not obvious or
otherwise apparent to persons without medical expertise.” Id. (citations omitted). Whether
expert testimony is required is determined on a case-by-case basis taking into consideration
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“the type of injury, the alleged mechanism of the injury, the immediate appearance of
symptoms, and whether the plaintiff was previously in good health and free from the kind of
symptoms involved.” Id.
When the facts in evidence are ones which a layperson would know what caused the
injuries complained of, medical evidence isn’t necessary. Gillikin, 139 S.E.2d at 760 (finding
that no medical evidence was required to link plaintiff’s soreness and the six-inch bruise on
her right hip with the incident; however, testimony was required for her ruptured disk).
“Where a lay person can do no more than speculate as to the cause of a physical condition,
the medical opinion of an expert is required to show causation.” Anderson v. Hous. Auth. of City
of Raleigh, 609 S.E.2d 426, 429 (N.C. Ct. App. 2005).
Here, Plaintiff’s bruising, soreness, and swelling immediately following the incident are
not injuries that need expert testimony to prove causation, as these are injuries which a
layperson can identify without medical expertise. See Taylor, 820 F. App’x at 176. However,
as Plaintiff’s injuries exceed mere bruising and swelling, the Court does not rule out that
medical expert testimony may be necessary at some future stage of the proceedings.
Nevertheless, Plaintiff argues that he has provided sufficient evidence to establish a genuine
dispute on the issue of causation as he provided his own testimony, testimony of his treating
physician, medical records, and a statement by the store manager. (ECF No. 41 at 6-9.) This
Court agrees.
Plaintiff submitted a declaration of his treating physician, an orthopedic surgeon, which
states that Plaintiff had a bone fracture in his elbow. (ECF No. 42-1 ¶ 4.) Two months after
the discovery of the fracture, Plaintiff’s injuries did not improve which led to three separate
surgeries to fix an “entrapment of the right ulnar nerve and rupture of the right triceps
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tendon.” (ECF No. 42-1 ¶ 7.) Defendant Walmart states that Plaintiff has not established
that his three surgical procedures were proximately caused by the incident in question. (ECF
No. 35 at 4.) However, the declaration of his surgeon states “all treatment that I provided to
Mr. Stimpson, including the three surgeries on his elbow were preformed after, because of,
and as a result of the injury Mr. Stimpson sustained on or about June 26, 2020.” (ECF No.
42-1 ¶ 8.) This statement coupled with the immediate obvious injury as a result of the June
26, 2020, incident is sufficient to create at a minimum, a genuine dispute on the issue of
causation.
Defendant Walmart argues that the statements made by Plaintiff’s treating physician
are internally inconsistent, open to interpretation, and they force a layperson to speculate.
(ECF No. 45 at 6.) This Court disagrees. While in his declaration the physician does state
that some of Plaintiff’s symptoms are consistent with nerve irritation in his neck, (ECF No.
45-1 ¶ 9.), this is not “wholly inconsistent” with Plaintiff’s injury stemming from being hit by
the doors as Defendant Walmart suggests. (ECF No. 45 at 7.) The statement made by the
physician states that some of his “symptoms” align with nerve irritation, but it states directly
above that statement that the three surgeries were preformed because of his injuries on the
date in question. (ECF No. 42-1 ¶ 8-9.) This statement is very clear and invites no speculation
that Plaintiff suffered some injury on June 26, 2020. The extent of that injury is an issue for
the jury.
Plaintiff’s evidence has established a genuine dispute as to whether the element of
causation on his claim of negligence has been satisfied. Defendant Walmart’s Motion for
Partial Summary Judgment is denied.

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IV.

MOTION FOR SUMMARY JUDGMENT
Plaintiff filed a Motion for Summary Judgment requesting that the Court find in favor

of Plaintiff on his negligence claim and requesting that the Court dismiss Defendant Walmart’s
affirmative defenses of contributory negligence and gross contributory negligence. (ECF No.
38 at 1.) Plaintiff’s motion addressed each of his requests outlining specific evidence from the
record. In Defendant Walmart’s Response in Opposition to Plaintiff’s motion, Defendant
merely addresses whether Plaintiff’s motion was untimely. (ECF No. 40 at 1.)
A.

Defendant Walmart’s Objection is Denied and It’s Surreply Will Not Be
Considered

In it’s Response, Defendant Walmart argues that Plaintiff’s motion was filed a day later
than the dispositive motion deadline of July 29, 2024. (ECF No. 40 at 1.) Plaintiff counters
that the date Defendant Walmart references was the previous dispositive motion deadline, as
a subsequent Order by the Court states the dispositive motion deadline as July 30, 2024;
therefore, making his motion timely. (ECF No. 43 at 2.) With respect to the timeliness issue,
this Court agrees with Plaintiff.
On July 18, 2024, this Court issued an Order stating that “dispositive motions are due
on July 30, 2024.” (ECF No. 33 at 4.) Plaintiff filed his Motion for Summary Judgment on
the stated date. Although Defendant Walmart argues that the deadline is July 29th, which was
the deadline outlined in the parties Rule 26 Report, the most recent Court Order sets the
parties deadline for dispositive motions as July 30th. Plaintiff in filing his Summary Judgment
Motion on July 30th, followed the latest directive of the Court. Even if the date by the Court
was in fact a typographical error, this Court finds that such error was through no fault of either
of the parties, and therefore the Court deems Plaintiff’s Motion for Summary Judgment timely
and will consider it.
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Further, in Defendant Walmart’s Response objecting to Plaintiff’s motion as untimely,
it failed to address any of the substantive arguments made by Plaintiff in his Motion for
Summary Judgment. (See ECF No. 40 at 1-2.) Defendant Walmart, then subsequently filed a
surreply without obtaining leave from this Court, in an effort to address Plaintiff’s substantive
arguments from the Summary Judgment Motion. (See ECF No. 44.)
This District’s Rules of Practice and Procedure allow for parties to file a motion, a
response, and a reply when dealing with summary judgment motions. See LR 56.1. The Local
Rules do not give parties the right to file a surreply, a party must request leave to file one. See
Johnson v. Rinaldi, No. 1:99CV170, 2001 WL 293654, at *1 (M.D.N.C. Feb. 16, 2001).
Defendant Walmart failed to comply with the Courts local rules in filing its’ surreply as it failed
to request leave to file one before filing.
Even when requested, surreplies are not allowed unless “fairness dictates based on new
arguments raised in the previous reply.” DiPaulo v. Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C.
Aug. 23, 2010). Defendant Walmart fails to provide any justification for filing of such surreply.
The surreply does not allege that any new arguments were raised by Plaintiff’s Reply. See United
States v. Falice, No. 1:04CV878, 2006 WL 2488391, at *7 (M.D.N.C. Aug. 25, 2006) (denying
surreply when defendant failed to move for leave of the Court to file surreply, and no new
arguments were raised in the reply). In fact, Defendant Walmart does not set forth any
legitimate reason that this Court should consider it’s surreply.
In addition, Plaintiff, anticipating that Defendant Walmart would file a surreply,
objected to such filing in his Reply. (See ECF No. 43.) Plaintiff argues that Defendant Walmart
“should not be allowed to file a second response simply because it chose not to make any
substantive arguments the first time.” (ECF No. 43 at 3.) This Court agrees. Defendant
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Walmart had an opportunity in its Response in Opposition to respond to Plaintiff’s arguments.
Walmart’s strategic choice to solely utilize their Response in Opposition to raise a timeliness
objection, expecting to have an opportunity to later respond to Plaintiff’s Motion for Summary
Judgment, is not supported by the Local Rules or Fourth Circuit case law. Further, in this
Court view, allowing the surreply would give Walmart unfair advantage. See Pouncey v. Guilford
Cnty., No. 1:18CV1022, 2020 WL 1274264, at *5 (M.D.N.C. Mar. 17, 2020) (finding that reply
briefs do not exist to “give the replying party an unfair advantage in having a chance to make
new arguments that should have been raised initially”). Accordingly, the Court declines to
consider Defendant Walmart’s surreply.
Although the Court will not consider Defendant Walmart’s surreply, a failure to
respond by Walmart alone does not fulfill the burdens imposed on Plaintiff, the moving party,
under Rule 56. Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993). As stated in
Rule 56, a moving party must establish, in addition to the absence of a dispute over any
material fact, that it is “entitled to a judgment as a matter of law.” Id.; Fed.R.Civ.P. 56(c).
Thus, the Court must “review the motion, even if unopposed, and determine from what it has
before it whether the moving party is entitled to summary judgment as a matter of law.” Custer,
12 F.3d at 416.
Therefore, Defendant Walmart’s surreply will not be considered, and the Court is left
to determine whether Plaintiff has sufficiently established that he is entitled to judgment as a
matter of law.
B.

Plaintiff Has Not Established That He is Entitled to Judgment as a
Matter of Law with Respect to His Negligence Claim

As stated above, in North Carolina, common law negligence is proven by plaintiff
demonstrating that: (1) the defendant owed a duty of care; (2) there was a breach of that duty;
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and (3) the breach of the duty was a proximate cause of the injury suffered by the plaintiff.
Andresen, 696 S.E.2d at 161 (citations omitted).
Here, the evidence establishes that Defendant Walmart owed Plaintiff a duty of care.
“[A]n individual who enters the premises of a store as a customer during business hours holds
the status of a business invitee for purposes of establishing the duty owed to the individual by
the owner of the premises.” Foster v. Winston-Salem Joint Venture, 281 S.E.2d 36, 38 (N.C. 1981).
The evidence supports and Plaintiff states that he was a business invitee of Walmart. (ECF
No. 38 at 10.)
Owners owe business invitee’s a duty to keep their entrances in a reasonably safe
condition. Lamm v. Bissette Realty, Inc., 395 S.E.2d 112, 116 (N.C. 1990). An owner also has a
duty to warn invitees of hidden dangers about which the owner knew or should have known.
Id. at 115 (internal citations omitted). As Plaintiff was a business invitee on the day of the
incident, Plaintiff has established that Defendant Walmart owed him a duty as a matter of law.
On the issue of breach, Plaintiff argues that Defendant Walmart breached its duty owed
to the Plaintiff when the Walmart associate “(1) powered on the automatic doors in the ‘closed
switch position’ causing the doors to close on patrons…and (2) instructed Plaintiff and others
to walk through the doors.” (ECF No. 38 at 10.) Plaintiff’s support for the proposition that
the automatic doors were in the ‘closed switch position” is Defendant Walmart’s expert Jay
Benjamin. (Id.) However, Mr. Benjamin is clear in his testimony that he is unable to determine
which setting the door was placed in by the Walmart associate. Mr. Benjamin states “I can’t
tell what operation the door was in because I can’t see the switches exactly.” (ECF No 38-1
at 28:9-11.) He later again states, “I don’t know what potions they were in. I can’t speak for
that.” (ECF No. 38-1 at 49:18-19.)
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Plaintiff solely cites to Mr. Benjamin’s testimony to support his proposition that the
door was in a closed switch position, yet no where in Mr. Benjamin’s testimony is he able to
definitively state what position the doors were in. Plaintiff has not sufficiently established
what position the doors were in on the day of the incident.
Further, to hold Defendant Walmart liable on a premises liability theory, Plaintiff must
show that “defendant either negligently created the condition causing the injury or negligently
failed to correct the condition after actual or constructive notice of its presence.” Carter v.
Food Lion, Inc., 488 S.E.2d 617, 620 (N.C. Ct. App. 1997) (citations omitted). While Plaintiff’s
Complaint outlines a claim of premises liability, his motion does not explicitly address these
factors. (See ECF No. 3 at 6; see also ECF No. 38 at 9-16.) Therefore, Plaintiff has not
sufficiently established that he is entitled to judgment as a matter of law on the element of
breach and the theory of premises liability.
As to causation, the Court has addressed the issue of causation above in Defendant
Walmart’s Motion for Partial Summary Judgment and found that a genuine issue exists on the
negligence claim, specifically related to causation. Accordingly, Plaintiff’s negligence claim
cannot be determined as a matter of law, and it is a question for the jury.
C.

Plaintiff Fails to Establish That He is Entitled to Judgment as a Matter
of Law with Respect to Defendant Walmart’s Affirmative Defenses

Plaintiff also requested summary judgment as to Defendant Walmart’s affirmative
defenses of contributory negligence and gross contributory negligence. (ECF No. 38 at 1).
Plaintiff argues that Defendant “presents no evidence” to support its affirmative defenses. (Id.
at 2.)
Under contributory negligence, a plaintiff cannot recover for injuries resulting from a
defendant’s negligence if the plaintiff’s own negligence contributed to his injury. Draughon v.
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Evening Star Holiness Church of Dunn, 843 S.E.2d 72, 76 (N.C. 2020). Plaintiff’s negligence can
contribute to his injury if his conduct “ignores unreasonable risks or dangers which would
have been apparent to a prudent person exercising ordinary care for his own safety.” Smith v.
Fiber Controls Corp., 268 S.E.2d 504, 507 (N.C. 1980). For contributory negligence, Plaintiff’s
actual behavior is compared to that of a reasonable person under similar circumstances.
Draughon, 843 S.E.2d at 77; see also Holland v. Malpass, 147 S.E.2d 234, 237 (N.C. 1966) (stating
that an invitee must also use reasonable care when visiting the establishment whose invitation
they accept).
Plaintiff argues that Defendant Walmart’s expert witness, Mr. Benjamin, testified that
“he saw nothing to indicate that Plaintiff did anything to cause the accident or his injuries.”
(ECF No. 38 at 13). However, Mr. Benjamin’s testimony does not support Plaintiff’s
conclusion. Mr. Benjamin was asked “did you see anything there that would make you believe
that [Plaintiff] did anything to cause the door to close on him,” to which he responded, “I
didn’t.” (ECF No 38-1 at 50:16-23.) The question asked to Mr. Benjamin was specific to
Plaintiff’s role in the door closing on him, not Plaintiff’s overall actions on the day of the
incident and whether Plaintiff acted reasonably. The evidence before the Court is not
sufficient for this Court to rule as a matter of law that Plaintiff was acting as a reasonable
person under the circumstances. (See ECF No. 38 at 13-15.)
Additionally, “[t]he existence of contributory negligence is ordinarily a question for the
jury; such an issue is rarely appropriate for summary judgment, and only where the evidence
establishes a plaintiff’s negligence so clearly that no other reasonable conclusion may be
reached.” Cone v. Watson, 736 S.E.2d 210, 213 (N.C. Ct. App. 2012) (internal citations omitted).

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Accordingly, there is not sufficient evidence before the Court to dismiss Defendant Walmart’s
affirmative defenses of contributory negligence and gross contributory negligence.
V.

CONCLUSION
Accordingly, this Court finds that there are genuine disputes on the issue of causation

pertaining to Plaintiff’s claim of negligence. Therefore, Plaintiff has not established that he is
entitled to summary judgment as a matter of law on his negligence claim. In addition, Plaintiff
has not sufficiently established that he is entitled to summary judgment as a matter of law on
Defendant’s affirmative defenses, which are contributory negligence and gross contributory
negligence. Therefore, Defendant Walmart’s Motion for Partial Summary Judgment, and
Plaintiff’s Motion for Summary Judgment are each denied.
For the reasons stated herein, the Court enters the following:

ORDER
IT IS THEREFORE ORDERED that Defendant Walmart’s Partial Motion for
Summary Judgment, (ECF No. 34), is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment, (ECF
No. 37), is DENIED.
This, the 3rd day of January, 2025.
/s/ Loretta C. Biggs
United States District Judge

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