Wilson v. Wal-Mart Inc
Filing
29
ORDER granting 21 Motion for Summary Judgment. Signed by Honorable Joseph F. Anderson, Jr. on 06/02/2016.(bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Bobby Jane Wilson,
Plaintiff,
v.
Wal-Mart, Inc.,
Defendant.
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C/A: 3:15-1157-JFA
ORDER
This case arises from a slip and fall personal injury sustained by Plaintiff Bobby
Jane Wilson (“Wilson”) while she was a patron at a Sumter, South Carolina location of
the Defendant Wal-Mart Inc. (“Wal-Mart”). Plaintiff alleged a sole cause of action of
negligence against Defendant. Defendant has filed a motion for summary judgment per
Rule 56 of the Federal Rules of Civil Procedure claiming that Plaintiff’s sole cause of
action of negligence should be dismissed.
I.
FACTUAL AND PROCEDURAL HISTORY
On May 11, 2013, Plaintiff entered a Wal-Mart store located at 1283 Broad Street,
Sumter, South Carolina with a companion, John Taylor (“Taylor”). While Plaintiff was
shopping in the store, she slipped and fell on a substance as she walked by the meat
display case.
Plaintiff testified that the substance that she slipped on was pinkish,
covered approximately one inch of the floor, and was very close to the meat display case.
Plaintiff further testified that she had no information to show that any Wal-Mart
employees knew that the pinkish substance was on the floor prior to her incident.
On February 2, 2015, Plaintiff filed a Complaint alleging that Defendant was
negligent in (1) allowing a slippery substance to remain on the floor where customers
were walking; (2) failing to warn Plaintiff that a slippery substance was on the floor; (3)
failing to properly maintain the floor to prevent slippery substances from being on the
floor, and (4) failing to inspect the area where Plaintiff fell. (ECF No. 1-1).
On April 21, 2016, Defendant filed a motion for summary judgment. (ECF No.
21). Plaintiff timely filed a response in opposition to Defendant’s motion on May 4, 2016,
and Defendant timely filed a reply to Plaintiff’s response. (ECF No. 23; ECF No. 25). On
June 1, 2016, oral argument was held before this Court. (ECF No. 28). Therefore, this
matter is ripe for review by the Court.
II.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
proper when there is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A material fact is one that “might affect the outcome of the suit under the
governing law.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of
material fact is “genuine” if sufficient evidence favoring the non-moving party exists for
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the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248–49.
The moving party bears the initial burden of showing the absence of a genuine
dispute of material fact. Celotex, 477 U.S. at 323. If the moving party meets that
burden and a properly supported motion is before the court, the burden shifts to the
non-moving party to “set forth specific facts showing that there is a genuine issue for
trial.” See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 323. All inferences must be
viewed in a light most favorable to the non-moving party, but he “cannot create a genuine
issue of material fact through mere speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
III.
ISSUES
There are 2 issues that must be decided by the Court:
A.
Whether any genuine issue of material fact exists regarding whether
Defendant created the hazard.
B.
Whether Defendant had any actual or constructive knowledge of the hazard
prior to Plaintiff’s slip and fall.
IV.
ANALYSIS
A.
NEGLIGENCE/PREMISES LIABILITY
According to South Carolina law, a plaintiff must prove the following elements to
establish a cause of action for negligence: (1) a duty of care owed to the plaintiff by the
defendant; (2) a breach of that duty by some act or omission; and (3) that the plaintiff
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suffered damages as a proximate result of the breach. Staples v. Duell, 329 S.C. 503, 506,
494 S.E.2d 639, 641 (S.C. Ct. App. 1997). When considering a claim by an invitee
against a merchant, it is well-established that a merchant owes its customers only a duty
to use ordinary care to keep its premises in a reasonably safe condition. Garvin v. Bi-Lo,
Inc., 343 S.C. 625, 628, 541 S.E.2d 831, 832 (S.C. 2001); Cook v. Food Lion Inc., 328
S.C. 324, 327, 491 S.E.2d 690, 691 (S.C. Ct. App. 1997). A merchant is not an insurer of
the safety of its patrons and is not required to maintain the premises in such a condition
that no accident could happen to a patron using the premises. Norris v. Wal-Mart Stores
East, L.P., 2014 U.S. Dist. LEXIS 14771, *9 (D.S.C. 2014); see also Pennington v. Zayre
Corp., 252 S.C. 176, 178, 165 S.E.2d 695, 696 (S.C. 1969); Denton v. Winn Dixie
Greenville Inc., 312 S.C. 119, 120, 439 S.E.2d 292, 293 (S.C. Ct. App. 1993).
Both parties agree that Plaintiff was a business invitee at the time of the incident in
this case. As such, in order for Plaintiff to recover for the injuries caused by the hazard on
Defendant’s premises, she must show either: (1) that the foreign substance was placed on
the floor by Defendant; or (2) that Defendant had actual or constructive knowledge of its
presence on the floor and failed to remove it. Massey v. Wal-Mart Stores East, L.P., 2010
U.S. Dist. LEXIS 100047, *6-8 (D.S.C. 2010); see also Garvin, 343 S.C. at 628, 541
S.E.2d at 832; Gillespie v. Wal-Mart Stores, Inc., 302 S.C. 90, 91, 394 S.E.2d 24, 24
(S.C. 1990); Wimberley v. Winn-Dixie Greenville, Inc., 252 S.C. 117, 121, 165 S.E.2d
627, 629 (S.C. 1969). Constructive knowledge can be established by showing that the
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substance was on the floor for a sufficient amount of time that the merchant would or
should have discovered and removed it had the merchant used ordinary care. Gillespie,
302 S.C. at 91, 394 S.E.2d at 24-25.
“‘Not every accident that occurs gives rise to a cause of action upon which the
party injured may recover damages from [someone]. Thousands of accidents occur every
day for which no one is liable in damages, and often no one is to blame, not even the ones
who are injured.’” Young v. Meeting Street Piggly Wiggly, 288 S.C. 508, 511, 343 S.E.2d
636, 638 (S.C. Ct. App. 1986) (quoting S. S. Kresge Co. v. Fader, 116 Ohio St. 718, 724,
158 N.E. 174, 175-76 (Ohio 1927)). In this case, Defendant argues that this Court
should grant its motion for summary judgment because Plaintiff has failed to establish
that Defendant created the hazard on the floor or that it had actual or constructive
knowledge of the hazard on the floor. The Court agrees.
B.
CREATION OF THE HAZARD
Defendant argues that Plaintiff’s claim of negligence should fail as a matter of law
because Plaintiff cannot establish that the foreign substance was placed on the floor by
Defendant or it agents or that Defendant otherwise created the hazard. (ECF No. 21-1 p.
5). Plaintiff argues that her deposition testimony demonstrates that the equipment owned
and controlled by Defendant created the hazard that caused the Plaintiff to fall. (ECF
No. 23 p. 2). Further, Plaintiff broadly contends that her deposition testimony along with
her “Customer Accident Report” indicates that there is a genuine issue of material fact
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such that the issue of where the liquid came from should be determined by the jury. (ECF
No. 23 p. 2-3).
In her deposition, Plaintiff initially testified that the liquid in question dripped
from the meat cooler onto the floor. However, Plaintiff subsequently admitted that she
did not have any evidence or proof as to the source of the slippery substance other than
the fact that it was located close to the meat cooler on the floor. Plaintiff’s theory that
the substance leaked from the meat cooler solely because of its proximity to the meat
cooler is based upon nothing more than assumptions and speculation.
Uncorroborated and self-serving testimony cannot give rise to a genuine factual
dispute. Hindman v. Greenville Hosp. Sys., 947 F. Supp. 215, 223 (D.S.C. 1996); see also
Kennedy v. Applause, Inc., 90 F.3d 1477, 1480 (9th Cir. 1996) (affirming that
self-serving, inconsistent deposition testimony did not create a genuine factual dispute
capable of defeating a properly supported motion for summary judgment). Plaintiff has
not presented any objective evidence to support her allegations regarding the source of
the substance or the length of time that it was on the floor.
None of the witness
statements provided in connection with the incident refer to the source of the substance,
and none of the surveillance video shows the source of the substance. Plaintiff’s
self-serving and conclusory statements suggesting that the substance leaked from
Defendant’s cooler are without any objective support and cannot defeat Defendant’s
motion for summary judgment.
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Plaintiff’s “Customer Accident Report,” like her deposition testimony, does not
provide a basis for denying summary judgment. The accident report in question only
provides a short description of how the accident occurred. Specifically, the report states
that Plaintiff “was walking on store by produce came around where drummettes were
slidedown [sic].” (ECF No. 23-2 p. 2). Nothing in the “Customer Accident Report”
provides evidence of the source of the substance or the length of time that it existed on
the floor.
Standing alone or taken together, neither the deposition testimony nor the
“Customer Accident Report” provide a sufficient basis for a reasonable jury to find in
favor of Plaintiff as to each of the elements of her negligence cause of action. See Ennis
v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995) (holding that
“[m]ere unsupported speculation . . . is not enough to defeat a summary judgment
motion.”); see also Anderson v. Winn-Dixie Greenville, Inc., 257 S.C. 75, 184 S.E.2d 77
(S.C. 1971) (holding that proof that a dangerous condition was caused by a foreign
substance on the floor, standing alone, is insufficient to support a finding of negligence)).
C.
ACTUAL/CONSTRUCTIVE KNOWLEDGE OF THE HAZARD
Defendant also argues that it is entitled to summary judgment because Plaintiff
cannot establish that Defendant had any actual or constructive knowledge of the
substance on the floor. In her reply brief, Plaintiff did not make any arguments to the
contrary, but the Court will address the issue nonetheless. Although Plaintiff testified
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that there was perhaps two ounces of the substance covering about an inch of the flooring,
she further testified that she did not notice the substance prior to falling nor did she have
any information regarding whether a store employee knew the substance was on the floor
prior to the incident.
Moreover, Plaintiff has not provided any evidence that would show that Defendant
had constructive knowledge of the substance. Plaintiff has not provided this Court with
any evidence showing that the substance was on the floor for a sufficient period of time
such that Defendant should have known about it. In fact, Plaintiff has provided no
evidence whatsoever regarding the length of time that the substance was on the floor.
Defendant admits that its surveillance video shows employees in the general area
prior to the incident. However, that evidence, standing alone, is insufficient to charge
Defendant with constructive knowledge of the substance, particularly given the small size
of the substance and its proximity to the meat cooler. 1 “The question of whether the
[foreign substance] was on the floor for such a length of time as to infer that [Defendant]
1
See Gillespie, 302 S.C. at 91, 394 S.E.2d at 25; see also Pennington v. Zayre Corp., 252 S.C. 176, 165
S.E.2d 695 (S.C. 1969) (ruling that evidence was insufficient to prove constructive notice where the
plaintiff, while shopping in a department store, slipped on a transparent plastic bag and fell to the floor
while an employee was in the immediate vicinity at the time of the fall); Hunter v. Dixie Home Stores,
232 S.C. 139, 101 S.E.2d 262 (S.C. 1957) (finding that evidence was insufficient to charge a storekeeper
with constructive notice of the presence of green beans on the floor that caused the plaintiff to slip and
fall even though one employee 10 or 12 feet away faced toward the area where the plaintiff fell and
another employee was standing approximately 20 or 30 feet away); Young v. Meeting Street Piggly
Wiggly, 288 S.C. 508, 343 S.E.2d 636 (S.C. Ct. App. 1986) (holding that a merchant’s liability may not
be based solely on the presence of moisture on the floor); H. E. B. Foods, Inc. v. Moore, 599 S.W.2d 126
(Tex. Ct. Civ. App. 1980) (holding that the mere fact that a foreign substance was on the floor of a store
and that an employee was in the immediate vicinity at the time the plaintiff fell was insufficient, standing
alone, to raise the inference that the storekeeper placed the substance there or knew it was there and
negligently failed to remove it)).
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was negligent in not discovering and removing it is not one that can be left to
speculation.” Gillespie, 302 S.C. at 92, 394 S.E.2d at 25.
Plaintiff has failed to provide any evidence from which a reasonable jury could
find that Defendant had actual or constructive knowledge of the foreign substance on the
floor. Therefore, Plaintiff’s claim fails as a matter of law, and summary judgment in
favor of Defendant is proper.
V.
CONCLUSION
Based on the record before the Court, the briefs filed by the parties, and the
arguments of counsel, the Court hereby GRANTS Defendant Wal-Mart’s motion for
summary judgment.
IT IS SO ORDERED.
June 2, 2016
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
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