Privitt v. Target Corporation
OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; dismissing/terminating case (terminates case) ; granting 38 Motion for Summary Judgment (Documents Terminated: 38 MOTION for Summary Judgment , 34 MOTION in Limine ) (tjc, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
OPINION AND ORDER
Defendant’s Motion for Summary Judgment [Dkt. 38] has been fully briefed and is
before the court for determination. As hereafter explained, the Motion for Summary
Judgment is GRANTED.
Summary Judgment Standard
Under Fed. R. Civ. P. 56(c), summary judgment is appropriate if the pleadings,
affidavits and exhibits show that "there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A genuine issue of fact
exists only "if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
2510, 91 L.Ed.2d 202 (1986). To survive a motion for summary judgment, the nonmoving
party "must establish that there is a genuine issue of material fact" and "must do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 1455-56,
89 L.Ed.2d 538 (1986). However, the factual record and reasonable inferences to be
drawn therefrom must be construed in the light most favorable to the non-movant.
Gullickson v. Southwest Airlines Pilots' Ass'n., 87 F.3d 1176, 1183 (10th Cir. 1996).
Plaintiff visited Defendant’s store with his brother-in-law, Christopher Orthman, on
February 2, 2011, the day after a snowfall left approximately 13 inches of snow on the
ground in Tulsa. Plaintiff slipped and fell while walking through Defendant’s store (Target).
Neither Plaintiff, nor Mr. Orthman, saw anything on the floor before Plaintiff fell. Mr.
Orthman and other customers walked through the same area with no problems. Target
employee Matthew Cargill was present in the area before Plaintiff’s fall and did not observe
any liquid or other hazard which would cause a fall. Immediately after the fall, Mr. Cargill
came to Plaintiff’s aid. Mr. Cargill observed snow compacted on the soles of Plaintiff’s
boots. After the fall Mr. Cargill did not observe liquid or any other hazard that would have
caused Plaintiff to fall.
In this action Plaintiff seeks damages for personal injuries sustained in his February
2, 2011 fall at a Target store. Plaintiff alleges that his fall was a “direct result of the
Defendants’ negligence in creating a hidden trap, snare, or pitfall, and/or failing to warn of
it.” [Dkt. 2-1, p. 1, ¶ 2]. Plaintiff also alleges that Defendant “knew of the existence of the
defective condition.” Id. at ¶ 3. Defendant seeks summary judgment on the basis that
there is no evidence that Plaintiff’s accident was caused by its negligence. Defendant
asserts that the undisputed facts demonstrate that Plaintiff slipped and fell because of the
snow compacted on the soles of his boots, not because of any negligence on Defendant’s
part. [Dkt. 38, p. 1].
Plaintiff argues against summary judgment by asserting that other people had been
walking in the area and they would have tracked in snow and ice which would have been
hard to see on the shiny white floor. Plaintiff states that Target should have expected
water to accumulate on the floor on this snowy day which was constructive notice to Target
that a hazardous condition could form. According to Plaintiff, based on this situation, a jury
could reasonably conclude that failing to provide warning signs breached a duty Target
owes its invitees. [Dkt. 41].
There is no dispute about the law applicable to this diversity case. Oklahoma law
applies and is quite clear about the duty owed by a business owner such as Target to an
invitee such as Plaintiff:
A storekeeper owes customers the duty to exercise ordinary
care to keep aisles and other parts of the premises ordinarily
used by customers in transacting business in a reasonably
safe condition, and to warn customers of dangerous conditions
upon the premises which are known, or which should
reasonably be known to the storekeeper, but not to customers.
Knowledge of the dangerous condition will be imputed to the
storekeeper if he knew of the dangerous condition, or if it
existed for such time it was his duty to know of it, or if the
condition was created by him, or by his employees acting
within the scope of the employment.
Williams v. Safeway Stores, Inc., 515 P.2d 223, 225 (Okla. 1973)(citations omitted); see
also Oklahoma Uniform Jury Instructions-Civil, Third Edition, Rev. 2008, Instruction No.
11.10 Duty to Invitee to Maintain Premises – Generally.
Plaintiff has not established the existence of a material issue of fact to be tried. He
has not come forward with any evidence of a dangerous condition existing in the Target
store when he fell. Plaintiff’s speculation that other people could have tracked in snow and
ice that may have been invisible to the eye does not establish the existence of a question
to be tried. There is simply no evidence of any dangerous condition upon Defendant’s
premises at the time Plaintiff fell.
The court finds that the undisputed facts demonstrate that there are no issues for
trial. Therefore Defendant’s Motion for Summary Judgment [Dkt. 38] is GRANTED. This
resolves all pending issues between the parties. Judgment will be entered for Defendant.
SO ORDERED this 17th day of July, 2013.
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