McAdoo v. Walmart Stores, Inc.
MEMORANDUM AND ORDER: Accordingly, Plaintiff's Motion for Partial Summary Judgment (Doc. No. 27) is DENIED. This case is RETURNED to Magistrate Judge Frensley for further pretrial case management and to consider McAdoo's Motion to Amend Complaint to Include Punitive Damages (Doc. No. 32). Signed by Chief Judge Waverly D. Crenshaw, Jr on 8/18/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
WAL-MART STORES EAST, L.P.,
CHIEF JUDGE CRENSHAW
MEMORANDUM OPINION AND ORDER
This is a premises liability case. The parties agree that, on September 21, 2014, Jacynta
McAdoo and a friend were shopping at a Wal-Mart store located at 2232 Gallatin Pike in Madison,
Tennessee. While looking for clippers in the Health & Beauty aisle, McAdoo slipped and fell on
a gel-like substance on the floor of the aisle.
No container was found at or near the spill site. Wal-Mart does not know where the liquid
came from, how it got on the floor, how long it had been on the floor, or what the substance was,
but concedes that Mark A. Troutt, the Store Manager, admitted that such a substance on the floor
presented a dangerous condition.
The parties further agree that approximately thirty employees were working at the store when
McAdoo fell, and that a least one boy was captured on videotape1 kicking a ball in the vicinity of
the Health & Beauty Department within an hour before the incident. The videotape also showed an
unattended ball laying on the floor in the area that remained there for approximately 17 minutes,
even though an employee passed by the ball and should have picked it up because the ball posed a
In her Memorandum, McAdoo states that “[t]his video footage will be introduced as a [sic] Manual
Exhibit # 1, which will be filed contemporaneously with this pleading.” (Doc. No. 28 at 9, n.2). The Court
finds no such manual filing in the record.
safety hazard. Finally, Wal-Mart does not know of anything McAdoo could have done or should
have done that day to avoid this accident.
The foregoing is the sum and substance of the facts on which the parties agree. Nevertheless,
McAdoo has filed a Motion for Partial Summary Judgment (Doc. No. 27) on the issue of liability
on the grounds that “1) the liquid gel on the floor which caused the Plaintiff to slip and fall was a
dangerous condition; 2) Wal-Mart had actual notice of the dangerous condition; 3) Wal-Mart had
constructive notice of the dangerous condition; 4) Wal-Mart created the dangerous condition by
recklessly breaching its duty of care to the Plaintiff by permitting young children to play soccer and
basketball along and in the aisles where the substance was spilled; 5) Wal-Mart destroyed evidence
for which the Plaintiff is entitled to spoliation sanctions; and 6) Plaintiff herself bears no fault for
this accident.” (Doc. No. 28 at 1-2). Wal-Mart’s position on the Motion is clear; on no less than
eight occasions in the response brief, Wal-Mart writes, a plaintiff “must present evidence
establishing each element of the negligence action brought by her.” (Doc. No. 38 at 3, 7, 8, 9, 11,
“Whether the defendant’s negligence actually caused the particular injury complained of is
generally a question of fact to be determined by the factfinder.” McMurry v. Metro. Gov’t of
Nashville, 2003 WL 535918, at *8 (Tenn. Ct. App. Feb. 26, 2003). Therefore, “[i]t is well settled
that it is the rare negligence case that can be resolved by summary judgment. Reidinger v. Trans
World Airlines, Inc., 463 F.2d 1017, 1021 (6th Cir. 1972).
The grant of summary judgment in a plaintiff’s favor is rarer still. A defendant need only
establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter
of law as to any one of the elements of a negligence claim, which are “(1) a duty of care owed by
the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care
amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or
legal cause,” Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008). In contrast,
a plaintiff must establish that there are no genuine issues of material fact on all of the elements and
that he or she is entitled to judgment under the law.
This is not the rare negligence case where summary judgment is appropriate. Apart from
there being no disagreement that the liquid gel was a dangerous condition and that Wal-Mart is
unaware of evidence that would suggest McAdoo bore some responsibility for the fall, each of the
grounds on which she moves for summary judgment are enveloped in disputed facts.
“‘Liability in premises liability cases stems from superior knowledge of the condition of the
premises.’” Blair v. W. Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004) (quoting McCormick v.
Waters, 594 S.W.2d 385, 387 (Tenn.1980)). “In order for an owner or operator of premises to be
held liable for negligence in allowing a dangerous or defective condition to exist on its premises,
the plaintiff must prove, in addition to the elements of negligence, that: 1) the condition was caused
or created by the owner, operator, or his agent, or 2) if the condition was created by someone other
than the owner, operator, or his agent, that the owner or operator had actual or constructive notice
that the condition existed prior to the accident.” Id. (citing Martin v. Washmaster Auto Center,
U.S.A., 946 S.W.2d 314, 318 (Tenn. Ct. App. 1996)).
McAdoo claims she “can demonstrate constructive notice by establishing that the dangerous
or defective condition existed for such a length of time that the defendant, in the exercise of
reasonable care, should have become aware of the condition.” (Doc. No. 28 at 9). She explains:
Given the scene of the accident, logic and common sense dictates that the gel-like
substance must have come from a broken container which was discarded by someone
because it was not found. Since many children were actively playing basketball and
soccer for a significant period of time before the Plaintiff fell, it is logic and common
sense to state that one of those balls hit a container in the Health & Beauty area,
broke it (leaving the gel-like substance on the floor), and the child and/or its
parent/guardian hid the container.
(Id.). McAdoo goes on to cite Blair for the proposition that a “plaintiff may establish owner notice
of a dangerous condition by showing a pattern of conduct, a recurring incidence or a general or
continuing condition indicating the dangerous condition’s existence.” (Id. at 10).
There are a myriad of problems with McAdoo’s arguments in the context of a motion for
summary judgment. First, being able to “demonstrate” or “establish” notice is markedly different
from there being no genuine issue of material fact on the issue. Second, the parties dispute the
number of children playing in the store, whether they were playing basketball or soccer, where such
activity occurred, whether the activity was in proximity to the Health & Beauty aisle, and whether
a child (or children) playing with a ball was a factor in there being liquid gel on the floor. Third,
the contention that “logic and common sense” suggests a container was broken as a result of
horseplay and then hidden by a parent is a plausible hypothesis, but speculative and, at best, a jury
argument. See Mass. Mut. Life Ins. Co. v. Ace Akron/Cleveland Enter., Inc., 2009 WL 4030752,
at *5 (N.D. Ohio Nov. 19, 2009) (observing that “the reasons for preferring one hypothesis to
another, are properly jury argument and not the basis for a grant of summary judgment”). Fourth,
McAdoo ignores the precepts that, “at the summary judgment stage,” the judge’s function is not
himself to weigh the evidence and determine the truth of the matter,” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986), and that “[o]n summary judgment the inferences to be drawn from
the underlying facts . . . must be viewed in the light most favorable to the party opposing the
motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citation
omitted). Fifth, the aisle where McAdoo slipped and fell was outside of the video camera’s range
and, to paraphrase Welge v. Planters Lifesavers Co., 17 F.3d 209, 211 (7th Cir. 1994), “elves may
have played ninepins with the jar[s]” and bottles in Health & Beauty aisle for all the Court knows.
Separate and apart from notice, McAodo argues that she is entitled to summary judgment
because of the spoliation of evidence. More specifically, she writes:
Wal-Mart’s policy dictates that its employees perform certain procedures if there is
a slip and fall. First, they are to photograph the substance before it is cleaned up. .
. According to Wal-Mart’s claim form, its employees are to immediately search for
and preserve any and all information and evidence related to this incident.
Wal-Mart’s manager, [Troutt], violated this policy and spoiled the evidence by
failing to take a photograph before the substance was cleaned up and thus destroyed
the evidence, which made and makes it impossible to determine what the substance
was, where it came from, and whether its condition could reveal any other
identifying features about it, e.g., how long it had been out of its container, etc. The
destruction of the evidence in this case has prejudiced the Plaintiff. The manager on
duty at the time of the injury admitted that Wal-Mart could not discover what the
substance was because “it was cleaned up when I got there.” . . . It is also significant
to note that the container of the substance was not found.
(Doc. No. 28 at 4-5) (internal citations omitted).
There are a number of problems with this argument as well. First, McAdoo relies on Beaven
v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010), for the proposition that “[t]he Sixth
Circuit has develop a three-part standard for determining whether sanctions are appropriate; a party
seeking an adverse inference instruction based on the destruction of evidence must establish (1) that
the party having control over the evidence had an obligation to preserve it at the time it was
destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the
destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact
could find that it would support that claim or defense.” (Doc. No. 28 at 5). However, by way of her
present Motion, McAdoo is not seeking a spoliation instruction, but rather a sanction in the form of
a finding of liability. This is arguably the “most severe sanction” under the facts presented, yet a
“proper sanction for spoliation . . . must ‘serve both fairness and punitive functions.’” Byrd v. Alpha
All. Ins. Corp., 518 F. App’x 380, 385 (6th Cir. 2013) (quoting Beaven, 622 F.3d at 553).
Second, McAdoo has not established that records were destroyed by Wal-Mart with a
sufficiently culpable state of mind. In fact, McAdoo acknowledges that “Wal-Mart provides
conflicting reasons for the destruction of evidence.” (Doc. No. 28 at 5). Troutt testified that “it was
the proper procedure to clean [the spill up] so that another customer would not have an accident,”
while Brian Hicks, the Asset Protection Manager, “testified that Wal-Mart’s policy required the
employee to leave the spill until management arrived and that the associate in this case ‘didn’t know
any better,’ because of limited training or limited work experience.” (Id.). This is significant in the
context of the pending motion for summary judgment if for no other reason than “the veracity of
[defendant’s] stated reasons for destroying the [evidence] is an issue of credibility.” Beaven, 622
F.3d at 544 (brackets in original) (quoting Kronisch v. United States, 150 F.3d 112, 127 (2d
Third, McAdoo claims that Troutt violated Wal-Mart “policy and spoiled the evidence by
failing to take a photograph before the substance was cleaned up,” which resulted in a “sanitized
depiction of the scene.” (Id. at 5-6). However, whether Troutt or any other employee had a culpable
state of mind is again called into question by Hicks’ testimony that hourly associates are taught to
clean up spills to prevent another accident, except “in relation to an accident that’s already
occurred,” that some people are new, and even veteran employees sometimes forget. (Doc. No. 313, Hicks Depo. at 19). Furthermore, a jury is unlikely to be hoodwinked by Wal-Mart’s sanitized
photographs because McAdoo admittedly took pictures of the floor after the slip and fall, which
undercuts the need for the drastic sanction sought.2
McAdoo is also not entitled to summary judgment because, as already noted and as WalMart repeatedly points out, a plaintiff seeking summary judgment must present evidence establishing
each element of his or her claim. An essential element of a negligence claim is injury or loss.
Nowhere in her moving papers does McAdoo discuss the injuries she sustained, or more pertinently,
detail how she was injured or damaged as a result of the slip and fall. While the amount of damages
is essential to the question of liability, the fact of damages is an essential element in determining a
defendant’s negligence vel non. Giggers v. Memphis Housing Auth., 277 S.W.3d 359, 364
(Tenn.2009) (stating that the elements of “a prima facie claim of negligence” include “loss or
injury”); McMiller v. State, 2015 WL 1897268, at *2 (Tenn. Ct. App. Apr. 27, 2015) (holding that
where “claimant failed to prove he suffered an injury or loss as a result of the fall, . . . the absence
of an essential element—injury or loss—serves to defeat claimant’s negligence claim against the
State); Whitley v. Hix, 343 S.W.2d 851, 856 (Tenn. 1961) (“[I]t is said the fact of injury makes out
a prima-facie case of negligence and in the absence of countervailing explanatory proof to overcome
the prima-facie case liability would follow.”)
The Court need go no further. The foregoing in more than sufficient to show that there are
numerous genuine issues of material fact that preclude judgment in McAdoo’s favor on the issue of
liability. Accordingly, her Motion for Partial Summary Judgment (Doc. No. 27) is DENIED.
This case is RETURNED to Magistrate Judge Frensley for further pretrial case management
and to consider McAdoo’s Motion to Amend Complaint to Include Punitive Damages (Doc. No.
Although McAdoo is not entitled to judgment on liability for the alleged spoliation of evidence,
this ruling does not preclude the possibility of a spoliation instruction at trial if warranted.
IT IS SO ORDERED.
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE
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