Sherrod et al v. Williams et al

Filing 386

ORDER OVERRULING MOTION IN LIMINE to EXCLUDE EVIDENCE AND ARGUMENT REGARDING WAL-MART FAILING TO PROVIDE NOTICE AND/OR SIGNAGE THAT OHIO IS AN OPEN CARRY STATE OF DEFENDANTS WAL-MART STORES, INC., AND WAL-MART STORES EAST, L.P. (DOC. # 350 ) . Wal-Mart's Motion (Doc. # 350 ) is OVERRULEDWhite may testify on the question of whether Wal-Mart adhered to the standard of care on notice or signage as to Ohio being an open carry state. Signed by Judge Walter H. Rice on 8/27/2024. (bjr)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISIONAT DAYTON

TRESSA SHERROD, efa/.,
Plaintiffs,

Case No. 3:14-cv-454

V.

Judge Walter H. Rice

WAL-MART STORES,
INC., etal.,
Defendants.

ORDER OVERRULING MOTION fNL/M/NEJOEXCLUDE EVIDENCE
AND ARGUMENT REGARDING WAL-MART FAILING TO PROVIDE
NOTICE AND/OR SIGNAGE THAT OHIO IS AN OPEN CARRY STATE
OF DEFENDANTSWAL-MART STORES, INC., AND WAL-MART
STORES EAST, L. P. (DOC. #350)

Before the Court is the Motion in Limine to Exclude Evidence and Argument

Regarding Wal-Mart Failing to Provide Notice and/or Signage that Ohio is an Open
Carrv State of Defendants Wal-Mart Stores, Inc., and Wal-Mart Stores East, L. P.

(collectively, "Wal-Mart"). 1 (Doc. #350). Wal-Mart notes that under Ohio law,
there is a presumption that customers are aware that open carry of a firearm in a
business is legal, and unless a business owner expressly intends to opt out of

1 The Motion was not brought on behalf of Defendant Wal-Mart Store #2124. However, the Court
assumes that any company-wide policies or lack thereof would apply equally to Store #2124.

allowing open carry, the owner is not required by law to post signage about open
carry in its store. [Id. at PAGEID 20740-41, citing State v. Massingill, 8th Dist.
Cuyahoga No. 109818, 2021-0hio-2674, 115 (Aug. 15, 2021); Gary White Dep ,
Doc. #224-12, PAGEID 15651). Wal-Mart argues that, because individuals are
presumed to know the law, and Wal-Mart was not required to notify customers
that it allowed open carry, the opinion of Plaintiffs' expert, Gary White, that WalMart was negligent in not posting a sign reading, "Walmart is not a follower in all
of the policies and procedures of other retail stores, " is speculative and irrelevant,
and should be excluded. [Id., quoting Doc. 224-1, PAGEID 15652). It should
further be excluded, Wal-Mart asserts, because White conceded that he cannot
determine whether "Walmart's decision to allow the open carry of firearms in its
stores in Ohio . . . in any way play[ed] into Mr. Crawford's death. " {Id., quoting

Doc. 224-1, PAGEID 15651).
Plaintiffs do not dispute that: (1) customers are presumed to know the law;
(2) it was lawful for an individual to open carry in Wal-Mart under Ohio law; (3)

Wal-Mart took no position on whether it wanted customers to be able to open
carry in Wal-Mart stores; and (4) Beavercreek, Ohio, police responding to Ronald
Ritchie's 911 call were aware of Ohio's open carry law and its application to WalMart. (Memo. in Opp., Doc. #353, PAGEID 20764). However, they argue that
Wal-Mart's lack of any open carry policy or signage, and its not notifying
customers that open carry was permissible in the store, while both legal, are

2 White's deposition was filed under seal. (Notice of Filing, Doc. #224).

evidence of a lack of reasonable care in ensuring the premises were "in a
reasonably safe condition so that [decedent John H. Crawford, III] would not be
exposed to danger unreasonably or unnecessarily. " {Id. at PAGEID 20765). They
note that the Court, in adjudicating Wal-Mart's summary judgment motion, rejected
Wal-Mart's position that "because Ohio is an open carry state, it was
unforeseeable that a customer lawfully carrying a pellet rifle in the store would be
shot and killed by a policeman[, ]" and instead concluded, "as a matter of law, that
Wal-Mart had a duty to take reasonable precautions to protect its business invitees
from the dangers associated with the unsecured display of the MK-177 pellet
rifles. " {Id. at PAGEID 20765-66 (internal quotation marks omitted), quoting

Decision and Entry, Doc. #273, PAGEID 19999, 20001).
Plaintiffs further note that the Court, in its Decision overruling Wal-Mart's
motion in limine to exclude White's testimony entirely, held that White was

qualified to give an opinion on whether Wal-Mart met industry standards, and that
any perceived deficiencies in his qualifications and opinion (a) could be brought out
by Wal-Mart on cross-examination, and (b) go to the weight the jury should afford
his opinion, rather than the admissibility of his opinions at all. (Doc. #353, PAGEID
20766-67, quoting Decision and Entry, Doc. #280, PAGEID 20075-76, 20079).
They argue that, because White's opinion has been adjudged relevant and
admissible, he should be allowed to testify about whether Wal-Mart's lack of
notice or signage to customers or policy regarding customers open carrying

constituted a breach of its duty of care. {Id. at PAGEID 20767-68, citing
FED. R. EVID. 401-02).
In its Reply, Wal-Mart reiterates its position that, because Wal-Mart was not
required to post any signage about open carry, "[t]o allow Plaintiffs to argue or
present the expected, speculative testimony of Mr. White that Wal-Mart should
have posted notice and/or signage regarding Ohio's Open Carry laws would only
result in the prejudice to Wal-Mart[.]" (Doc. #368, PAGEID 20900 (emphasis in
original), citing S. C. Williams Dep., Doc. #121, PAGEID 2451; Doc. #224-1,
PAGEID 15606, 15651;).
As Plaintiffs note. White's opinion that Wal-Mart "has no policy against guns

being carried in their stores" and "neither has a public statement [n]or posting of a
policy for customers who intend to carry guns while shopping" was known to WalMart and the Court at the time Wal-Mart moved to exclude White entirely and
when the Court overruled that motion. (Doc. #353, PAGEID 20766-67, quoting

White Report, Doc. #353-1, PAGEID 20831, 111; citing Motion to Exclude, Doc.
#188; Doc. #224-1; Doc. #280). The Court also sees no reason to depart from its

previous ruling that White's "extensive experience in the retail industry" cleared
the Daubert v. Merrell Dow Pharma., Inc., 509 U. S. 579 (1993), hurdle and
enabled him to testify as to standard of care. This previous ruling encompasses

the opinions White has as to Wal-Mart's open carry notices and policies or lack
thereof (Doc. #280, PAGEID 20075); any perceived shortcomings in his opinion as

to the adequacy of training and staffing policies (a) may be addressed by Wal-Mart

on cross-examination; and (b) go to the weight afforded the evidence, a jury
determination.

{Id. at PAGEID 20075-76).

For the foregoing reasons, Wal-Mart's Motion (Doc. #350) is OVERRULED
White may testify on the question of whether Wal-Mart adhered to the standard of
care on notice or signage as to Ohio being an open carry state.

IT IS SO ORDERED.

u
August 27-2024

tj .. t <:'AJCA,

WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT