Holly v. Walmart Real Estate Business Trust et al

Filing 25

Order denying Motion for summary judgment (Related Doc # 20 ). Judge James G. Carr on 8/14/17.(C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Mary Holly,

Case No. 3:16CV00009
Plaintiff,
v.

ORDER

Walmart Real Estate Business
Trust, et al.,
Defendants.

This is a slip and fall case. At about 6:30 A.M. on June 24, 2014, plaintiff Mary Holly slipped
and fell on spilled blueberries at defendant Walmart’s Lima, Ohio Supercenter, injuring her left
shoulder.
Plaintiff sued defendant, claiming defendant breached its duty to exercise ordinary and
reasonable care in maintaining the premises in a reasonably safe condition.
Jurisdiction is proper under 28 U.S.C. § 1332.
Defendant now moves for summary judgment. (Doc. 20).
For the reasons that follow, I deny the motion.
Background
A. Defendant’s Spill Clean Up
Procedures and Policies
Defendant instructs its employees on proper spill clean up safety, providing specific, step-bystep procedures and general policies for cleaning up spills. Angie Rex, defendant’s employee who

addressed the spilled blueberries at issue in this case, received these instructions and knew
defendant’s procedures and policies.
According to defendant’s “Spill Clean Up Procedures,” the first step is for the employee to
determine the type of spill. Specifically, the policy states, “First, block off the spill area/aisle [i.e.,
with caution cones] or have an associate protect the spill area to prevent a customer or another
associate from coming in contact with the spill or tracking it through the store.” (Doc. 21, Ex. 13).
Next, defendant instructs its employees to retrieve the necessary clean up supplies from the
spill station.
Then, the final step is for the employee to clean up the spill. When doing so, the employee
must, “Place a caution cone next to the spill to prevent any customer and cart traffic from tracking
through the spilled material.” (Id.).
In addition to the written “Spill Clean Up Procedures,” defendant’s safety training materials
include general policies for cleaning spills. These policies provide clear instructions for the scenario
where an employee cannot address a hazard or spill on his or her own.
Specifically, defendant’s safety training materials instruct employees:
Correct hazards as soon as possible. If you need help, guard the area, and ask another
associate to assist in correcting the problem. Remember to use caution cones to warn
associates, customers and members of slippery floors.
If you encounter a spill and need assistance, guard the area and ask another Associate
for help.
Use caution cones to warn associates, customers and members of slippery floors, but
do not leave the spill unattended.
(Id., Ex. 14).
Defendant’s safety training materials also state:
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It is important that spills are marked to alert customers, members and associates of
the potential hazard. When you see a spill, clean it up as soon as possible. If the spill
is too large for you to clean, stand by it until another associate can get a caution cone
and the proper supplies needed to clean it up. Never leave a spill or hazard
unattended.
When you see a spill: Clean it up as soon as possible–OR–Remain by the spill until
another associate can assist you with the cleanup. Never leave a spill or hazard
unattended. Spills must be marked.
(Id., Ex. 15).
B. Defendant Employee Angie Rex’s Attempt to
Clean the Spilled Blueberries and Plaintiff’s Fall
Shortly before plaintiff’s fall, another customer told Ms. Rex that she had spilled blueberries
and showed her the location of the spill.
Contrary to defendant’s spill clean up procedures and policies outlined above, when Ms. Rex
saw the spill area, she left the area unattended and went to retrieve a broom and dustpan. Before
doing so, Ms. Rex did not ask another employee to guard the spill area, nor did she place caution
cones around the spill area.1
As Ms. Rex was underway with cleaning one part of the spill area, plaintiff slipped and fell
on one or more blueberries in another, unguarded part of the spill area. Ms. Rex saw plaintiff’s leg
on the ground and went to help her. According to plaintiff, Ms. Rex appeared less than five seconds
after she fell.
After Ms. Rex cleaned up all the blueberries, including those on which plaintiff fell, she (or
another employee) placed caution cones in the area surrounding the spill area. According to Ms. Rex,

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Defendant suggests that having another employee protect the area was not an option, given the
presence of only a few other employees at that early hour. There is no indication that Ms. Rex tried to call
out to have someone come to the produce area to assist her. Nor does the record indicate why she did not first
obtain and set out caution cones before beginning to clean the spill.

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she did not look for blueberries in the exact area where plaintiff fell, indicating she “wanted to get
that big section swept up first” before looking to see whether any blueberries were elsewhere. (Doc.
21 at 4). Ms. Rex also testified she “had swept the floor and had not got them (blueberries) all yet.
[Plaintiff] found the only one I had not swept up yet.” (Id.).
As a result of the fall, plaintiff injured her left shoulder, requiring surgery. Plaintiff continues
to experience problems with her left shoulder and claims the injury significantly affects her daily life.
Standard of Review
Summary judgment is appropriate under Fed. R. Civ. P. 56 where the opposing party fails
to show the existence of an essential element for which that party bears the burden of proof. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant must initially show the absence of a genuine issue of material fact. Id. at 323.
Once the movant meets that initial burden, the “burden shifts to the nonmoving party [to] set forth
specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). Rule 56 “requires the nonmoving party to go beyond the [unverified] pleadings”
and submit admissible evidence supporting its position. Celotex, supra, 477 U.S. at 324.
I accept the non-movant’s evidence as true and construe all evidence in its favor. Eastman
Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992).
Discussion
A. Defendant’s Duty Owed to Invitees
Plaintiff’s claim amounts to an allegation that defendant “negligently failed to keep the floor
of its store in a safe condition which caused [plaintiff] to fall and sustain serious injuries.” Flowers
v. Penn Traffic Co., 2001 WL 921427, *1 (Ohio App.). Plaintiff must, therefore, show that: 1)
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defendant owed plaintiff a duty of care; 2) defendant breached that duty; and 3) the breach
proximately caused plaintiff’s injuries.
In Ohio, plaintiff’s status on defendant’s premises determines the scope of the legal duty
owed. Shump v. First Cont’l-Robinwood Assocs, 71 Ohio St.3d 414, 417 (1994).
Neither party disputes that plaintiff was a business invitee. As such, defendant owed plaintiff
a duty to exercise ordinary or reasonable care in maintaining its premises in a reasonably safe
condition “so that its customers are not unnecessarily and unreasonably exposed to danger.” Paschal
v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203 (1985); see also Armstrong v. Best Buy Co., Inc.,
99 Ohio St.3d 79, 80 (2003) (“A shopkeeper ordinarily owes its business invitees a duty of ordinary
care in maintaining the premises in a reasonably safe condition and has the duty to warn its invitees
of latent or hidden dangers.”).
Defendant’s responsibilities, however, do not extend so far that it serves as “an insurer of the
customer’s safety.” Paschal, supra, 18 Ohio St.3d at 203. Defendant owes no duty to warn invitees
of open and obvious conditions. Id.; Armstrong, supra, 99 Ohio St.3d at 82. If a condition is so
obvious that it serves as its own warning, business owners have no duty. Simmers v. Bentley Constr.
Co., 64 Ohio St.3d 642, 644 (1992) (citing Sidle v. Humphrey, 13 Ohio St.2d 45 (1968) and Paschal,
supra, 18 Ohio St.3d 203).
Under Ohio law, for a business invitee to recover for an injury caused by a hazard on
defendant’s premises, the plaintiff must show:
1. That the defendant through its officers or employees was responsible for the hazard
complained of; or
2. That at least one of such persons had actual knowledge of the hazard and neglected
to give adequate notice of its presence or remove it promptly; or
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3. That such danger had existed for a sufficient length of time reasonably to justify
the inference that the failure to warn against it or remove it was attributable to a want
of ordinary care.
Johnson v. Wagner Provision Co., 141 Ohio St. 584, 589 (1943).
Here, defendant did not breach the duty of ordinary care by creating a hazardous condition
(i.e., by spilling the blueberries) that caused plaintiff’s fall. Thus, plaintiff needs to show defendant
possessed either actual or constructive knowledge of the hazardous condition, and defendant
breached the duty to warn plaintiff of or promptly remove that hazardous condition.
Defendant argues no genuine issues of material fact remain as to: 1) its notice of the
blueberries that caused plaintiff to slip and as to the reasonableness of its employee’s efforts to clean
up the blueberries; and 2) whether the blueberries were an open and obvious condition.
I disagree and hold that genuine issues of material fact remain as to whether defendant
breached the duty of ordinary care by failing to warn plaintiff of or otherwise protect her from the
hazardous condition or promptly remove it and as to whether the blueberries were an open and
obvious condition.2

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Defendant’s contention that it did not have actual notice of the spilled blueberries approaches the
absurd: defendant, through its employee, indisputably knew about the spill from another customer, who also
pointed out its location. What Ms. Rex saw put her on actual notice that there were spilled blueberries in the
area, creating a risk of injury to anyone who might pass through the area.
Even if the customer did not know of or call Ms. Rex’s attention to the specific part of the area where
plaintiff fell, Ms. Rex’s first job, as noted above in defendant’s “Spill Clean Up Procedures,” was to find out
where else the blueberries might have rolled (i.e., determine the type of spill). Though she failed to do so,
she was, nonetheless, on constructive notice that the small, round blueberries might be in a wider area than
that where she initially saw them.

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B. Genuine Issues of Material Fact Remain
1. Whether Defendant Satisfied Its Duty to Exercise
Ordinary or Reasonable Care in Maintaining
Its Premises in a Reasonably Safe Condition
Defendant is correct that a defendant’s own procedures and policies do not ipso facto create
the standard of care and, relatedly, that a defendant’s failure to comply with its own procedures and
policies does not, standing alone, establish breach. Mackey v. Kroger Co., 1994 WL 456468, *2
(Ohio App.) (“Although policy guidelines are a valuable means by which a store may avoid
negligence, failure to strictly follow such guidelines should not be confused with mandates from a
legislative body.”).
However, defendant’s failure, through its employee, Ms. Rex, to comply with its own
procedures and policies is evidence a jury may consider in determining whether defendant breached
the duty owed to plaintiff. That defendant’s own procedures and policies do not establish the
standard of care does not preclude a jury from considering those procedures and policies, as well as
defendant’s failure to adhere to them. Defendant’s non-compliance with its own procedures and
policies when addressing the spill at issue in this case is “a factor to be considered by the trier of fact
in determining whether or not ordinary care was satisfied.” Id.
Defendant’s “Spill Clean Up Procedures” expressly state that after discovering a spill or
hazard, an employee’s first step is to determine the type of spill; this includes blocking off the spill
area/aisle or having another associate protect the spill area/aisle.
Additionally, it is clear from defendant’s general spill clean up policies that: 1) an employee
should never leave a spill or hazard unattended; 2) if an employee cannot clean up the spill or hazard

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on his or her own, he or she should ask another associate for assistance; and 3) spills or hazards must
be marked, specifically by placing caution cones around the spill or hazard area.
Ms. Rex failed to follow these instructions when responding to the hazard that the spilled
blueberries clearly created and that caused plaintiff’s fall and injuries.
First, Ms. Rex disregarded the first step of defendant’s “Spill Clean Up Procedures”–she did
not determine the type and area of the spill. After the customer told her about the spill and showed
her its location, Ms. Rex made no attempt to determine the extent of the spill. A reasonably prudent
employee would realize that what he or she saw initially may not encompass all of the spilled
blueberries.
Ms. Rex further disregarded that first step by failing to block off the spill area/aisle or have
another employee protect the spill area/aisle to prevent another customer–like plaintiff–from coming
in contact with the spill. Ms. Rex did not remain in the spill area to warn any customers who may
have approached it of the danger, and she did not ask another associate to protect the area while she
went to retrieve the cleaning supplies.
Additionally, Ms. Rex failed to comply with defendant’s clear policy that employees should
never leave a spill area unattended or unguarded. This policy is reiterated numerous times in
defendant’s safety training materials–for example: “Use caution cones to warn associates, customers
and members of slippery floors, but do not leave the spill unattended”; “Never leave a spill or hazard
unattended.” (Doc. 21, Ex. 14, Ex. 15). Instead of asking someone to help her, Ms. Rex left the spill
area–not knowing the full extent of the spill/hazard–to get the cleaning supplies.
Undoubtedly, Ms. Rex responded promptly, doing what she subjectively thought was best.
However, a jury could find that she overlooked preliminary steps that she reasonably could and
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should have taken to minimize the risk of injury. And a jury also could conclude that her failure to
take those steps–learning the extent of the spill, blocking off the spill area with caution cones, and
waiting until another employee could assist until she cleaned up the blueberries–put plaintiff at a
foreseeable risk of injury.
Thus, while I agree with defendant that non-compliance with its own procedures and policies
is not, itself, conclusive proof of breach, the simple fact is that those procedures and policies embody
commonsense, reasonable steps to protect customers from risk of injury. At a minimum, the
existence of those sensible protocols shows that defendant and its employees, including Ms. Rex,
well know what needs to be done in circumstances such as those that existed here, and a jury may
appropriately consider Ms. Rex’s non-compliance with those procedures and policies as evidence
of breach.
I also agree with defendant that the basic facts are not in dispute; however, what matters here
are the inferences that a rational jury could draw, and those rational inferences could result in a
finding for the plaintiff.
A genuine issue of material fact exists as to whether defendant breached its duty. Thus, this
an issue for the jury to decide.
Therefore, defendant is not entitled to summary judgment.
2. Whether the Blueberries Were
an Open and Obvious Condition
In the alternative, defendant argues no genuine issue of material fact remains as to whether
the blueberries were an open and obvious condition, relieving defendant of any duty of care. To

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support its argument, defendant relies on plaintiff’s post hoc statement that while she did not see the
blueberries before she fell, they were observable after the fall.
Plaintiff responds that the blueberries were not open and obvious because her shopping cart
obstructed her view of the floor, and her vision was focused on her destination–the meat bunker
directly in front of her.
Plaintiff’s statement after the fall that the blueberries were observable does not conclusively
prove that the blueberries on the floor were open and obvious. Ohio courts hold that people are not
required to constantly look downward while walking to avoid injury. Texler v. D.O. Summers
Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680 (1998). “This rule is especially apt in a
location where goods are displayed in a manner intended to call them to a customer’s attention and
cause them to select items for purchase.” Destazio v. Flying J., Inc., 2006 WL 226022, *2 (N.D.
Ohio) (citing Carpenter v. Glassman, Inc., 124 Ohio App. 3d 236, 240 (1997)).3
The fact that plaintiff stated the blueberries were observable is not so compelling that
reasonable minds could reach but one conclusion as to whether the blueberries were, in fact, open
and obvious. Thus, whether the blueberries were an open and obvious condition is an issue for the
jury.
Therefore, defendant is not entitled to summary judgment.
Conclusion
Because a genuine issue of material fact remains as to whether defendant breached the duty
of ordinary care by failing to warn plaintiff of or promptly remove the hazardous condition and as

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I also note that Ms. Rex testified plaintiff found the one blueberry she had missed. If so, the
likelihood that even the most percipient and attentive customer could have seen it is hardly likely.

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to whether the hazardous condition was open and obvious, defendant is not entitled to summary
judgment.
It is, therefore,
ORDERED THAT: defendant’s motion for summary judgment (Doc. 20) be, and the same
hereby is, denied.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

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