Carn v. Wal-Mart Stores Inc et al

Filing 21

ORDER denying 13 Motion for Summary Judgment Signed by Honorable David C Norton on September 7, 2017.(span, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
MELINDA MALPHRUS CARN

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Plaintiff,
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vs.
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WAL-MART STORES, INC. and
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WAL-MART STORES EAST, LP
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Defendants.
)
_______________________________________)

No. 9:16-cv-00892-DCN
ORDER

The following matter is before the court on defendants Wal-Mart Stores, Inc.
and Wal-Mart Stores East, LP’s (collectively, “Walmart”) motion for summary
judgment, ECF No. 13. For the reasons set forth below, the court denies the motion
for summary judgment.
I. BACKGROUND
This case stems from a slip and fall that occurred on November 18, 2013 at a
Walmart store in Hardeeville, South Carolina. Plaintiff Melinda Malphrus Carn
(“Carn”) was in the produce department of the Walmart when she fell on a puddle of
water. As a result of the fall, Carn suffered injuries to her neck, back, and spine.
On February 9, 2016, Carn filed suit, alleging that Walmart was negligent and
reckless by: (1) failing to provide a safe environment for patrons to do business on the
premises; (2) allowing a puddle of water to form and remain on the floor of the store;
(3) failing to place appropriate signs or barricades warning patrons, and Carn
specifically, of the existing danger; (4) failing to train its employees how to properly
address and handle such situations that could cause injury to patrons; and (5) failing

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to exercise the degree of care that a normal prudent person would exercise under the
circumstances.
Walmart filed this motion for summary judgment on February 20, 2017, to
which Carn responded on March 6, 2017. The motion has been fully briefed and is
now ripe for the court’s review.
II. STANDARD
A.

Summary Judgment

Summary judgment shall be granted “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine dispute
as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). “By its very terms, this standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1986). “Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary
judgment.” Id. at 248. “[S]ummary judgment will not lie if the dispute about a
material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. “[A]t the summary judgment stage the
judge’s function is not himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.” Id. at 249. The
court should view the evidence in the light most favorable to the non-moving party
and draw all inferences in its favor. Id. at 255.

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III. DISCUSSION
Walmart moves for summary judgment, arguing that Carn has failed to
establish that Walmart created the puddle of water on the floor or that Walmart had
actual or constructive notice of the dangerous conditions that caused Carn’s injuries.
Def.’s Mot. 1. Without this, Walmart contends, Carn’s claims fail as they are all
based on premises liability. Walmart does not dispute that there was a puddle of
water on the floor of the produce department, or that Carn suffered injuries from
slipping on the puddle and falling down. Carn contends that there are factual disputes
on the record that can only be resolved by a jury.
As a Walmart patron, Carn was a business invitee to the Walmart store at the
time of her injuries. Sims v. Giles, 541 S.E.2d 857, 861 (S.C. Ct. App. 2001) (“A
business visitor . . . is an invitee whose purpose for being on the property is directly
or indirectly connected with business dealings with the owner.”). Walmart is not
required to maintain its store in such a condition that no accident could happen to a
patron. See Denton v. Winn–Dixie Greenville, Inc., 439 S.E.2d 292, 293 (S.C. 1993).
But under South Carolina law, Walmart owes business invitees such as Carn a duty to
exercise reasonable and ordinary care for their safety and is liable for any injuries
resulting from a breach of this duty. H.P. Larimore v. Carolina Power & Light, 531
S.E.2d 535, 538 (S.C. Ct. App. 2000) (internal citations omitted). To recover
damages for injuries caused by a dangerous or defective condition on a landowner’s
premises, a plaintiff must show that (1) the injury was caused by a specific act of the
defendant which created the dangerous condition, or (2) that the defendant had actual
or constructive knowledge of the dangerous condition and failed to remedy it.

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Wintersteen v. Food Lion, Inc., 542 S.E.2d 728, 729 (S.C. 2001). Since the court
finds that there is a genuine issue of material fact on the issue of whether Walmart
had knowledge of the puddle and failed to remedy it, an adequate and independent
ground for denying Walmart summary judgment, it need not assess if Walmart’s
actions created the puddle.
Carn contends that Walmart had actual or constructive knowledge that there
was a puddle of water in the produce aisle where she fell. Constructive knowledge of
a dangerous condition can be established by showing “that the foreign substance had
been on the floor for a sufficient length of time that the storekeeper would or should
have discovered and removed it had the storekeeper used ordinary care.” Gillespie v.
Wal–Mart Stores, Inc., 394 S.E.2d 24, 24–25 (S.C. Ct. App. 1990). The court notes
that the parties have not deposed the Walmart employees responsible for overseeing
general maintenance of the produce department—namely Harry Toomer, the Walmart
employee who is seen on the surveillance video taken immediately preceding Carn’s
fall sweeping garbage from the aisles of the produce department, or the cart custodian
who is seen on the surveillance videotape loading and unloading produce in the
produce aisles. Indeed, Carn’s testimony is the only deposition evidence in the record
before the court. Without the testimony of Toomer, the court is unable to determine
if Toomer, or any other Walmart’s employee, had actual or constructive knowledge of
the puddle in the produce department. The court cannot properly analyze the actual
and constructive knowledge issue with Carn’s deposition testimony alone—Carn
cannot accurately testify about Toomer’s or the cart custodian’s knowledge of the
puddle.

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Walmart appears to argue that because there is no deposition testimony from
any Walmart employee in the record before the court, Carn cannot meet her burden of
proving that any Walmart employee had actual or constructive notice of the puddle.
The court is not so convinced. The surveillance videotape shows a “floor custodian”
sweeping trash from the produce aisle where the puddle was located and walking
within several feet of the puddle a short period of time before Carn’s fall. It also
shows a “cart attendant” placing a cart with vegetables to the left side of the aisle in
the area where Carn fell, and then moving this cart to various positions in the produce
aisle in the time period before Carn fell. Certainly, the amount of time that the puddle
was on the floor cannot be left to speculation. See Gillespie, 394 S.E.2d at 25 (“[The
record] does not show how long the water had been on the floor . . . [and] [t]he
question of whether the water was on the floor for such a length of time as to infer
that Wal–Mart was negligent in not discovering and removing it is not one that can be
left to speculation.”). But a reasonable juror could interpret the surveillance
videotape as evidence of either the floor custodian or the cart attendant’s actual or
constructive knowledge of the puddle.
Additionally, the surveillance videotape shows a large shopping cart
containing fresh vegetables in the aisle where Carn fell. Carn argues—albeit without
any evidence in the record that is currently before the court to support her assertion—
that large grocers such as Walmart “constantly wet their fresh vegetables with mist.”
Pl.’s Resp. 2. If this is true, and Carn can put on testimony from either an expert in
the business practices of large grocers or from a Walmart employee that the produce
aisle frequently has water on the floor due to the practice of misting fresh vegetables,

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then a reasonable juror could find that Walmart either knew or should have known
that the vegetable cart, which the surveillance videotape shows the cart attendant
unloading immediately preceding Carn’s fall, would have water dripping on to the
floor that could have formed the puddle.
Without any testimony from Toomer or any other Walmart employee about
their knowledge of the alleged hazard, the court is unable to determine the actual and
constructive notice issue. Furthermore, the surveillance video shows a floor
custodian sweeping the aisles of the produce department in the close vicinity of the
puddle just a few minutes before Carn fell. This video could persuade a reasonable
juror that a Walmart employee had actual or constructive notice of the puddle. Thus,
Walmart’s summary judgment motion fails.

IV. CONCLUSION
For the reasons set forth above, the court DENIES Walmart’s motion for
summary judgment.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 7, 2017
Charleston, South Carolina

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