Sherrod et al v. Williams et al

Filing 398

ORDER SUSTAINING MOTION IN LIMINE TO EXCLUDE EVIDENCE AND ARGUMENT REGARDING WAL-MART'S ALLEGED FAILURE TO SECURE THE PELLET RIFLE OR WARN THAT IT COULD BE CONFUSED FOR A REAL RIFLE OF DEFENDANTS WAL-MART STORES, INC., WAL-MART STORES EA ST, L. P., AND WAL-MART STORE #2124 (DOC. # 389 ). Wal-Mart's Motion (Doc. # 389 ) is SUSTAINED. Plaintiffs may not offer evidence regarding any failure by Wal-Mart to secure the MK-177 or warn that the MK-177 may be mistaken for a real rifle prior to Mr. Crawford picking up and carrying the MK-177 in the store. Signed by Judge Walter H. Rice on 10/1/2024. (bjr)

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

TRESSA SHERROD, et al.,
Plaintiffs,

Case No. 3:14-cv-454

Judge Walter H. Rice

V.

WAL-MART STORES,
INC., era/.,
Defendants.

ORDER SUSTAINING MOTION /NUM/NETO EXCLUDE EVIDENCE
AND ARGUMENT REGARDING WAL-MART'S ALLEGED FAILURE TO
SECURE THE PELLET RIFLE OR WARN THAT IT COULD BE
CONFUSED FOR A REAL RIFLE OF DEFENDANTSWAL-MART
STORES, INC., WAL-MART STORES EAST, L. P., AND WAL-MART
STORE #2124 (DOC. #389)

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

Regarding Wal-Mart's Alleged Failure to Secure the Pellet Rifle or Warn That It
Could Be Confused for a Real Rifle of Defendants Wal-Mart Stores, Inc., Wal-Mart
Stores East, L. P., and Wal-Mart Store #2124 (collectively, "Wal-Mart"). (Doc.

#389). Wal-Mart argues that, because the Court reversed its prior ruling and
concluded that open-and-obvious doctrine applies with respect to the unboxed rifle
picked up by the decedent, John H. Crawford, III, any failure by Wal-Mart to
secure the MK-177 pellet rifle or fail to warn customers that the pellet rifle looks

like a real firearm is irrelevant to whether Wal-Mart was negligent. (Id. at PAGEID

20996, quoting Order, Doc. #385, PAGEID 20982). In other words, Wal-Mart

argues, because the pellet rifle was a static hazard to Plaintiff, and Plaintiff
voluntarily encountered the hazard by picking up the MK-177, Wal-Mart was under
no obligation to warn Mr. Crawford (1) about the dangers of carrying the
unpackaged MK-177 throughout the store, or (2) that the MK-177 could be
confused for a real firearm. 1 (Id. at PAGEID 20997-98, citing Simmons v. Am.

Pac. Ent., L. L. C., 164 Ohio App. 3d 763, 2005-0hio-6957, ^ 21, 23 (10th
Dist. )). Specifically, Wal-Mart asserts that Plaintiff's decision to pick up the pellet
rifle did not transform the hazard from static to active, and thus, the open-andobvious doctrine acts as a defense with respect to the entire series of events. (Id

at PAGEID 20999, citing McLaughlin v. Andy's Coin Laundries, LLC, 2018-Ohio1798, If 16, 112 N. E. Sd 57 (1st Dist. ); Goodman v. Orlando Baking Co.. 8th Dist.
Cuyahoga No. 97170, 2012-0hio-1356, ^ 16-20 (Mar. 29, 2012)).
In sum, Wal-Mart argues that the static nature of the MK-177 hazard means
that any failure to secure the pellet rifle in proper packaging cannot be the basis for
liability, and that it was under no duty at any time to warn Mr. Crawford that the
MK-177 could be mistaken for a real rifle. Consequently, any evidence of failure to
warn that the MK-177 looks like a real gun is irrelevant and should be excluded as
such. (Doc. #389, PAGEID 21000).

1 Wal-Mart asserts, and Plaintiffs do not disagree, that "there is no dispute of fact [that] the pellet
rifle looked like a real firearm. " (Doc. #389, PAGEID 20997). For the purposes of this Motion, the

Court treats the similarity between the MK-177 and an actual rifle as undisputed.

As Wal-Mart correctly stated, the Court concluded that the MK-177 being
out of its packaging for at least two hours prior to Mr. Crawford happening upon it
meant that, as a matter of law, the unboxed MK-177 was a passive condition or
static hazard. (Doc. #385, PAGEID 20982). Under Ohio law,

The open-and-obvious doctrine eliminates a premises occupier's duty
to warn a business invitee of static dangers on the premises if the
dangers are known to the invitee or are so obvious and apparent to
the invitee that he or she may reasonably be expected to discover
them and protect himself or herself against them.
Simmons, 2005-0hio-6957, If 21. Consequently, Plaintiffs could not argue that

Wal-Mart was negligent in failing to warn about the dangers of the MK-177 being
unboxed and on display, since Wal-Mart was under no obligation to do so. (Doc.
#385, PAGEID 20983
In its previous Order, the Court held that Plaintiffs could still proceed on an

active negligence theory regarding "failures (1) to warn Crawford of the dangers of
carrying an unpackaged pellet gun around the store, and (2) to monitor Crawford's
movements after he picked it up. Obviously, the danger of Crawford picking up

and carrying the MK-177 happened at the same time as the fatal shooting. " (Doc.
#385, PAGEID 20983). However, in the instant Motion, Wal-Mart argues that Mr.

Crawford picking up and carrying the pellet gun was his "chofosing] to proceed
[with the risk] despite the existing condition[, ]" and that his choice did not
transform the static condition of the unboxed MK-177 into an active hazard, such
that Wal-Mart would have had a new duty to warn. (Doc. #389, PAGEID 20999,

c\\:\v\QMcLaughlin,

2018-0hio-1798; Goodman, 2012-0hio-1356, 1{\ 16-20)

Moreover, Wal-Mart claims, it already warned the inherently dangerous nature of
the MK-177 through "the explicit warning label contained on the product

packaging in the aisle. " [Id., citing Ex. C to Motion for Sum. Judg., Doc. #186-3,
PAGEID 12346).
Plaintiffs did not file a memorandum contra, and the time for doing so has

expired. S. D. OHIO Civ. R. 7. 2(a)(2) ("Any memorandum in opposition shall be filed
within twenty-one days after the date of service of the motion. Failure to file a
memorandum in opposition may result in the granting of any motion that would not
result directly in entry of final judgment[. ]"). The matter is ripe for decision.
The Eighth District's opinion in Goodman is instructive, as the court
reiterated that under Ohio law, the lack of duty to warn about an open-and-obvious
static condition extends to an invitee voluntarily encountering the risk unless the
invitee was "faced with forced circumstances or. .. no reasonable alternatives

were available. " 2012-0hio-1356, If 19, citing Jeffries v. United States, No. 3:09cv-430, 2010 WL 1258008 (N. D. Ohio Mar. 30, 2010); AI-Sorghali v. Modene &

Assoc., Inc., 6th Dist. Lucas No. L-06-1156, 2006-0hio-4911, H 19-20 (Sept.
22, 2006); Mizenis v. Sands Motel, Inc., 50 Ohio App. 2d 226, 230-32 (6th Dist.
1975). Plaintiffs do not argue that Mr. Crawford encountering of the unboxed MK1 77 and proceeding to pick up the pellet rifle and carry it around the store-despite
at all times the pellet rifle looking like a real gun-was anything but a freely

voluntary choice on his part; nor could they reasonably so argue. Plaintiffs also
concede that the danger from the unboxed MK-177 was not from it sitting on the

shelf, but that an invitee like Mr. Crawford would pick it up-/. e., voluntarily
encountering the static condition-and others would mistake it for a real gun.
(Compl., Doc. #1, PAGEID 10, ^ 36). As Ohio law is clear that such a voluntary
encounter does not transform a static, open-and-obvious condition into an active
risk, Goodman, 2012-0hio-1356, ^ 18-22, Wal-Mart had no greater duty to warn

about the dangers of picking up and carrying around the MK-177 than it did to
warn Mr. Crawford of the dangers of the pellet rifle sitting unboxed on the shelf.
Absent the existence of a duty. Plaintiffs may not prevail on a negligence theory.

Consequently, Wal-Mart's Motion (Doc. #389) is SUSTAINED. Plaintiffs
may not offer evidence regarding any failure by Wal-Mart to secure the MK-177 or
warn that the MK-177 may be mistaken for a real rifle prior to Mr. Crawford
picking up and carrying the MK-177 in the store.

IT IS SO ORDERED.

^^r^t\vc^
October 1, 2024

WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT