McDavid v. Aldi Inc.

Filing 42

ORDER denying 18 Motion for Summary Judgment. Signed by Judge Samuel H. Mays, Jr on 07/10/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

LINDA MCDAVID,
Plaintiff,
v.
ALDI, INC., JANE/JOHN DOE 1,
and JANE/JOHN DOE 2,
Defendants.

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No. 2:16-cv-02699-SHM-cgc

ORDER

Before the Court is Defendant ALDI, Inc.’s February 9, 2017
Motion for Summary Judgment (the “Motion”).

(ECF No. 18 at 64.1)

Plaintiff Linda McDavid responded on June 2, 2017.
at 147.)

ALDI replied on June 13, 2017.

(ECF No. 40

(ECF No. 41 at 165.)

For the following reasons, the Motion is DENIED.
I.

Background
McDavid brings this premises liability action against ALDI

for

injuries

she

alleges

she

sustained

from

a

shopping in one of ALDI’s stores on July 14, 2015.

fall

while

At the time

of the fall, McDavid was shopping on the left-hand side of the
frozen-foods aisle, where grocery items were displayed behind

1

Unless otherwise noted, all pin cites for record citations are
to the “PageID” page number.

large glass doors.2

The aisle was 102.5 inches wide (about 8.5

feet), but there was a center-aisle display in the part of the
aisle where McDavid was shopping.

(ECF No. 18-1 ¶ 4 at 68.)

ALDI had arranged several 40-by-45-inch wooden pallets and boxes
end-to-end down a portion of the center of the aisle, with the
45-inch sides of the pallets running parallel with the aisle.
(Id. ¶ 5 at 68.)

On the pallet nearest McDavid at the time of

her fall, ALDI had stacked five or six boxes horizontally on top
of

one

another,

each

measuring

about

3-feet-by-3-feet

and

several inches thick.
McDavid pushed her shopping cart forward so that she could
open one of the glass doors to remove some frozen chicken.
No. 40-3 at 160, 163.)

(ECF

The space between the side of the aisle

and the edge of the center-aisle display was approximately 3
feet.
which

(See ECF No. 18-1 ¶¶ 4-7.)
extended

approximately

2

feet

McDavid opened the door,
into

the

aisle.

(Id.)

While holding the door open with her body, McDavid bent forward,
removed one bag of chicken, stood erect for several seconds, and
reached back into the unit to remove a second bag.

(ECF No. 40-

3 at 161.)
As

she

straightened

up

a

second

backward, allowing the door to close.
2

time,

McDavid

(Id. at 160.)

stepped
When she

The facts relevant to ALDI’s Motion are based on documentary
evidence and on video footage of the incident from the store’s
video surveillance system. (See ECF No. 18-1 ¶ 3 at 67.)
2

did so, her foot hit part of the center-aisle display, and she
fell backward into the display, causing several of the boxes to
topple

over.

(ECF

No.

18-2

at

77;

ECF

No.

40-3

at

160.)

McDavid landed on her buttocks atop two of the boxes, which
remained on the pallet.

(ECF No. 40-3 at 162.)

McDavid testified at her deposition that, when she tried to
get up, her foot got caught in an exposed part of the pallet,
her foot twisted, and she fell a second time.3
76, 79; ECF No. 40-3 at 160-63.)

(ECF No. 18-2 at

She testified that she fell

stomach- or face-down onto the floor.

(Id.)

When asked whether she knew that the boxes “were there
before the accident,” McDavid testified that she did and that
she had to push her shopping cart forward to open the freezer
door because the “aisle was very narrow.”
163.)

(ECF No. 40-3 at

Her deposition testimony reflects the following exchange:

Attorney: You knew that before you fell?
McDavid:

Yeah, I did.
So when I came out of the
freezer, not paying attention I guess,
whatever, I don’t know, and I fell.

Attorney: Was it a case of just misjudging and backing
into the boxes in the first place?
3

The video appears to contradict McDavid’s testimony that she
fell a second time. The Sixth Circuit has held that, normally,
“witness accounts seeking to contradict an unambiguous video
recording do not create a triable issue.”
Shreve v. Franklin
Cnty., 743 F.3d 126, 132 (6th Cir. 2014) (citing Scott v.
Harris, 550 U.S. 372, 380-81 (2007)). ALDI, however, “accept[s]
as true” McDavid’s version of events for purposes of its Motion.
(ECF No. 41 at 165.)
3

McDavid:

I don’t know if that is a good answer.
I
just didn’t pay attention. I don’t know. I
don’t know how to explain that part of the
fall.
I don’t know if I misjudged it or
measured or I just said I can’t go this far,
I didn’t do that. I am shopping.

(Id.)
ALDI represents that “there have been no personal injury
lawsuits

filed

against

the

store

involved

in

this

case,

or

arising out of accidents at that store, within the five years
preceding the accident that is the subject of this case.”
No. 18-3 at 81.)

(ECF

ALDI represents that, with the exception of a

2013 incident where “a customer bumped into a pallet in the
checklane
foot,”

area

“there

and
were

knocked
no

it

onto

accidents

at

another
the

customer’s

subject

store

left
that

involved persons backing into center-aisle displays or that were
otherwise similar to the accident in this case” within the five
years preceding the incident in this case.
record does not

(Id. at 82.)

The

show how long the center-aisle display

into

which McDavid fell, or one like it, had been set up in the ALDI
store before the incident.
II.

Jurisdiction and Choice of Law
Under

28

U.S.C.

§ 1332(a),

this

Court

has

original

jurisdiction of all civil actions between citizens of different
states “where the matter in controversy exceeds the sum or value
of

$75,000,

exclusive

of

interest
4

and

costs.”

28

U.S.C.

§ 1332(a)(1).
1.)

McDavid is a citizen of Tennessee.

(ECF No. 1 at

ALDI is an Illinois corporation with its principal place of

business in Illinois.
$75,000.

(Id.)

(Id.)

McDavid seeks damages in excess of

The parties are completely diverse, and the

amount-in-controversy requirement is satisfied.
In a diversity action, state substantive law governs.

See

Brocklehurst v. PPG Indus., Inc., 123 F.3d 890, 894 (6th Cir.
1997)

(citing

(1938)).

Erie

R.R.

Co.

v.

Tompkins,

304

U.S.

64,

78

Where, as here, there is no dispute that a certain

state’s substantive law applies, the court will not conduct a
“choice of law” analysis sua sponte.

See GBJ Corp. v. E. Ohio

Paving Co., 139 F.3d 1080, 1085 (6th Cir. 1998).

Tennessee

substantive law applies.
III. Standard of Review
Under Federal Rule of Civil Procedure 56, a court shall
grant a party’s motion for summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ.

P.

56(a).

The

moving

party

can

meet

this

Fed. R.
burden

by

pointing out to the court that the nonmoving party, having had
sufficient opportunity for discovery, has no evidence to support
an essential element of her case.
Asbury

v.

Teodosio,

412

F.

See Fed. R. Civ. P. 56(c)(1);

App’x

786,

791

(6th

Cir.

2011)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
5

When

confronted

with

a

properly

supported

motion

for

summary judgment, the nonmoving party must set forth specific
facts showing that there is a genuine dispute for trial.
Fed. R. Civ. P. 56(c).
plaintiff

presents

See

“A genuine dispute exists when the

significant

probative

evidence

reasonable jury could return a verdict for her.”

on

which

a

EEOC v. Ford

Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (quotation marks
omitted).
that

there

facts.’”
61

The nonmoving party must do more than simply “‘show
is

some

metaphysical

doubt

as

to

the

material

Adcor Indus., Inc. v. Bevcorp, LLC, 252 F. App’x 55,

(6th

Cir.

2007)

(quoting

Matsushita

Elec.

Indus.

Co.

v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
A

party

may

not

oppose

a

properly

supported

judgment motion by mere reliance on the pleadings.

summary

See Beckett

v. Ford, 384 F. App’x 435, 443 (6th Cir. 2010) (citing Celotex
Corp., 477 U.S. at 324).
adduce

concrete

evidence

Instead, the nonmoving party must
on

which

return a verdict in her favor.

a

reasonable

juror

could

Stalbosky v. Belew, 205 F.3d

890, 895 (6th Cir. 2000); see Fed. R. Civ. P. 56(c)(1).

The

court does not have the duty to search the record for such
evidence.

See Fed. R. Civ. P. 56(c)(3); InterRoyal Corp. v.

Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
Although summary judgment must be used carefully, it “is an
integral

part

of

the

Federal

Rules
6

as

a

whole,

which

are

designed

to

determination

secure
of

the

every

procedural shortcut.”
289,

294

(6th

just,

speedy,

action[,]

rather

and
than

inexpensive
a

disfavored

FDIC v. Jeff Miller Stables, 573 F.3d

Cir.

2009)

(quotation

marks

and

citations

omitted).
A

“party

summary

is

judgment

establishing

the

never
in

required

order

to

to

respond

prevail

nonexistence

of

always rests with the movant.”

a

to

since

material

a
the

motion
burden

factual

for
of

dispute

FTC v. E.M.A. Nationwide, Inc.,

767 F.3d 611, 630 (6th Cir. 2014) (quoting Smith v. Hudson, 600
F.2d

60,

summary

64

(6th

judgment

Cir.
is

1979)).

unopposed,

“[E]ven
a

district

where

a

court

motion
must

for

review

carefully the portions of the record submitted by the moving
party to determine whether a genuine dispute of material fact
exists.”
IV.

Id.

Analysis
ALDI moves for summary judgment on two grounds: (1) “it

owed no legal duty to the plaintiff to prevent her from backing
into a display located in the center of the store aisle, which
was in plain sight and which the plaintiff saw or should have
seen

before

she

backed

into

it”;

and

(2) “no

reasonable

factfinder could conclude that the plaintiff was less than 50%
at fault, barring any recovery on her part.”
64.)
7

(ECF No. 18 at

A.

Duty of Care

To prevail on a negligence claim in Tennessee, a plaintiff
must prove: “(1) a duty of care owed by the defendant to the
plaintiff; (2) conduct falling below the applicable standard of
care amounting to a breach of that duty; (3) an injury or loss;
(4)

causation

in

fact;

and

(5)

proximate,

or

legal

Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993).

cause.”

“The duty

element is a question of law requiring the court to determine
‘whether

the

interest

of

the

plaintiff

which

has

suffered

invasion was entitled to legal protection at the hands of the
defendant.’”

Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998)

(quoting Bradshaw, 854 S.W.2d at 870).
court

must

balance

the

“In analyzing duty, the

foreseeability

and

gravity

of

the

potential risk of harm to a plaintiff against the burden imposed
on the defendant in protecting against that harm.”

Id.

“A risk

is unreasonable and gives rise to a duty to act with due care if
the

foreseeable

probability

and

gravity

of

harm

posed

by

defendant’s conduct outweigh the burden upon defendant to engage
in

alternative

conduct

that

would

have

prevented

the

harm.”

McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).
“In a premises liability case, an owner or occupier of
premises has a duty to exercise reasonable care with regard to
social guests or business invitees on the premises.”
S.W.2d at 308.

Rice, 979

“The duty includes the responsibility to remove
8

or warn against latent or hidden dangerous conditions on the
premises

of

through

which

the

one

exercise

was
of

aware

or

reasonable

should

have

been

diligence.”

aware

Id.

In

Tennessee, the “owner’s superior knowledge of conditions on the
premises” has served as the “traditional rationale for imposing
this duty,” but “a duty may exist even where the injury-causing
condition is alleged to be ‘open and obvious’ to the plaintiff.”
Id.
“[R]elevant considerations” that bear on whether a premises
owner owes a duty of care to protect invitees from an open-andobvious condition include “[w]hether the danger was known and
appreciated by the plaintiff, whether the risk was obvious to a
person

exercising

judgment,

and

reasonable

whether

there

perception,
was

defendant to foresee the harm.”

some

intelligence,

other

reason

and

for

the

Coln v. City of Savannah, 966

S.W.2d 34, 42 (Tenn. 1998), overruled on other grounds by Cross
v. City of Memphis, 20 S.W.3d 642 (Tenn. 2000).

“‘Such reason

to expect harm to the visitor from known or obvious dangers may
arise, for example, where the possessor has reason to expect
that the invitee’s attention may be distracted, so that he will
not

discover

what

is

obvious,

or

will

forget

what

discovered, or fail to protect himself against it.’”

he

has

Id. at 41

(quoting Restatement (Second) of Torts § 343(A), cmt. a).

“[I]f

the foreseeability and gravity of harm posed from a defendant’s
9

conduct, even if ‘open and obvious,’ outweighed the burden on
the defendant to engage in alternative conduct to avoid the
harm, there is a duty to act with reasonable care.”

Id. at 43.

“The existence and scope of the duty of the defendant in a
particular

case

rests

on

all

the

relevant

circumstances,

including the foreseeability of harm to the plaintiff and other
similarly situated persons.”

Leatherwood v. Wadley, 121 S.W.3d

682, 694 (Tenn. Ct. App. 2003) (citing Pittman v. Upjohn Co.,
890 S.W.2d 425, 433 (Tenn. 1994)).

“Assuming a duty of care is

owed, be it a duty to refrain from creating a danger or a duty
to warn against an existing danger, it must then be determined
whether a defendant has conformed to the applicable standard of
care,

which

circumstances.”

is

generally
Coln,

966

reasonable
S.W.2d

at

care

39.

under

“[W]hether

the
the

defendant breached its duty and whether the breach proximately
caused the injury are generally questions decided by the trier
of fact.”

Kelley v. Johnson, 796 S.W.2d 155, 157 (Tenn. Ct.

App. 1990), abrogated on other grounds by McIntyre v. Balentine,
833 S.W.2d 52 (Tenn. 1992).
In this case, the alleged injury-causing condition was open
and obvious to customers walking down the aisle.

The part of

the display into which McDavid fell consisted of five or six
stacked boxes standing several feet tall, placed on a 40-by-45inch wooden pallet in the center of the aisle.
10

Just as McDavid

noticed

the

display

when

initially

approaching

it,

the

risk

created by the display would have been obvious to a typical
customer approaching the display who was “exercising reasonable
perception, intelligence, and judgment.”

Coln, 966 S.W.2d at

42.
Although a store like ALDI might typically expect that a
customer would recognize, and thereby avoid, any danger posed by
such a center-aisle display, here there was “some other reason”
ALDI could have foreseen the risk of harm the display posed.
See id.

ALDI had reason to expect that its customers’ attention

might be distracted because “a store competes for the customer’s
attention by encouraging her to look at and purchase items for
sale.”

Foster v. Wal-Mart Stores East, LP, No. 3-11-0367, 2012

WL 3027843, at *3 (M.D. Tenn. July 23, 2012); see also Huegel v.
Target Corp., No. 3:15-cv-550, 2017 WL 745589, at *5 (M.D. Tenn.
Feb. 27, 2017) (“Presumably, Target could reasonably anticipate
that customers in the Franklin store would be focused on the
products

on

the

shelves,

as

Mrs.

Huegel

testified

rather than on the floor of the store’s aisles.”).

she

was,

It would

have been foreseeable that a customer in McDavid’s position,
distracted by merchandise in the freezer unit as McDavid was,
might

momentarily

discovered.

forget

about

the

display

See Coln, 966 S.W.2d at 41.

that

she

had

For a customer in

McDavid’s position, the risk and gravity of harm posed by the
11

display was heightened by the narrowness of the space between
the display and the glass windows.4

ALDI has not produced any

evidence showing that it would have been burdensome to alter the
placement

or

set-up

gravity of harm.
harm”

posed

by

of

the

display

to

mitigate

the

risk

or

Because the “foreseeability and gravity of
ALDI’s

center-aisle

display

“outweighed

the

burden” on ALDI “to engage in alternative conduct to avoid the
harm,” ALDI had a duty to act with reasonable care.

Id. at 43.

ALDI argues that courts in analogous cases have found no
duty and granted summary judgment in defendants’ favor where an
allegedly dangerous condition was in “plain sight.”
at 92-94.)

ALDI relies on Foster.

(ECF No. 20

In Foster, a shopper was

“smelling Lysol products displayed on the left-hand side of the
endcap at the end of a shopping aisle” in a Wal-Mart store.
2012 WL 3027843, at *1.

The shopper “walked ‘pretty quick’ to

the other side of the endcap to sample products” and “tripped
over a wooden pallet on the floor” that was “painted bright
blue” and measured “four feet by three feet.”

Id.

The court

held that the store owed no duty of care to protect a customer
from the pallet where the plaintiff failed to show that the
4

ALDI argues that there is no expert testimony that the
dimensions of the aisle, even with the display, violated
industry standards or were otherwise unsafe.
(ECF No. 41 at
166.)
ALDI cites no authority that, in a premises liability
case, expert testimony is required before a legal duty may be
recognized or before a jury may find that a premises owner
breached that duty.
12

store “would reasonably foresee that a customer would trip over
a pallet located in close proximity to her.”
court

explained

that

“any

risk

to

the

Id. at 4.

plaintiff

from

The
the

placement of the pallet in the aisleway should have been obvious
to a customer exercising reasonable perception, intelligence,
and judgment.”

Id. (citing Coln, 966 S.W.2d at 43).

The court

emphasized that, “at the time [the plaintiff] tripped and fell,
she was not looking at merchandise on high shelves but rather
was moving from her initial location at the endcap to the other
side of the endcap.”

Id.

The court noted that the “plaintiff

simply failed to look down as she quickly moved to the other
side of the endcap.”

Id.

In Arrambide v. Wal-Mart Stores, Inc., a case similar to
Foster, a customer shopping in the lawn-and-garden section of a
Wal-Mart store “was attracted by some pots,” but “[t]o reach the
pots, [she] had to leave her cart at the end

of the aisle

because the aisle was too narrow” due to the placement of a
pallet in the center of the aisle.

33 F. App’x 199, 200 (6th

Cir. 2002).

“After leaving her cart, she walked by [the] pallet

and

the

through

aisle

to

look

at

the

pots.”

Id.

While

“[r]eturning to her shopping cart,” she tripped over the pallet
and fell.
care

to

Id.

The court held that the store owed no duty of

protect

a

customer

from

the

pallet

where

the

“foreseeability and gravity of harm [was] minimal because the
13

narrowing

of

the

aisle

was

open

and

obvious”

and

where

the

plaintiff “actually observed the narrowing of the aisle and the
placement of the pallet as evidenced by her decision to leave
her shopping cart at the end of the aisle and to walk around the
pallet the first time.”

Id. at 201.

The court explained that

the plaintiff was “sufficiently aware of the pallet’s existence
and familiar with its placement for her to reasonably avoid any
harm associated with the placement of the pallet on the floor.”
Id. at 201-02.
Other courts, however, have found that a store owed a duty
of care to protect shoppers from obstructions in an aisle.

In

Read v. Home Depot USA, Inc., a customer walked down an aisle at
a Home Depot store behind her sister and daughter where “over
200 ceiling light fixtures (chandeliers) . . . were hung 18 feet
above the floor in what was described as a light cloud which
extended the entire length of the aisle.”

No. 01A01-9803-CV-

00121, 1998 WL 721084, at *1 (Tenn. Ct. App. Oct. 15, 1998).
There was a “stack of cartons” in the aisle “high enough to be
readily visible, but one carton, which was on the floor of the
aisle, was longer than the rest and protruded into the aisle a
few inches further than the other cartons.”

Id.

While “[a]ll

three ladies were looking at the lighted chandeliers overhead,”
the shopper “did not see the carton protruding into the aisle
further than the stack” and she “tripped over it, fell and was
14

injured.”

Id.

The court held that the “presence of the ‘cloud

of light’ for the express purpose of attracting the attention of
customers placed a special duty of care upon the defendant to
provide safety for the customers whose attention was diverted
from their pathway to the ceiling.”

Id. at *2.

The court

explained that the store “employees having the assigned duty to
promptly clear the aisle of cartons by placing them on shelves,
knowing that the cartons were in the aisle, failed to perform
their duty by leaving the cartons in the aisle while they went
to lunch.”

Id.

The court explained further:

The diversion of her attention to the ceiling, the
obstruction of her view of the floor by her companions
she was following, and the fact that a carton over
which she tripped was protruding further into the
aisle than the stack of cartons, all mitigate or
remove any fault of the plaintiff which might be found
under other circumstances.
Id.
In Fox v. Food Lion, Inc., Store #539, a customer in a
grocery store walked down the right-hand side of an aisle and
“stopped and picked up a box of crackers and began reading the
label on the box.”

No. E1911-00015-COA-R3-CV, 2000 WL 1424805,

at *1 (Tenn. Ct. App. Sept. 21, 2000).

“After a few steps, she

looked up and saw several 12-pack cases of soft drinks stacked
on the floor against the shelves on the other side” of the
aisle.
she

Id.

tripped

“As she began walking toward these stacked cases,
and

fell

over

an
15

empty

wooden

display

base,

fracturing

her

hip.”

Id.

“The

subject

display

base

was

approximately eight feet long, three feet wide, and six inches
high and was “located between two displays of merchandise in the
center of the aisle.”

Id.

The court rejected the store’s

argument that it owed no duty of care under the circumstances,
explaining:
Even if the subject display base was “open and
obvious,” . . . such a condition would not necessarily
relieve Food Lion of a duty of care to its customers.
See [Coln, 966 S.W.2d at 43]. A premises owner’s duty
may arise, despite the obviousness of the dangerous
condition, if the owner “has reason to expect that the
invitee’s attention may be distracted, so that he will
not discover what is obvious, or will forget what he
has discovered, or fail to protect himself against
it.”
Id. at 41 (quoting Restatement (Second) of
Torts, § 343A (comment f)).
We find that Food Lion
had reason to expect that the attention of a customer
such as Fox would be distracted; Linda Ellison, the
defendant’s customer service manager, acknowledged as
much when she testified that merchandise is placed on
shelves and on displays for the purpose of attracting
the attention of customers.
Furthermore, a grocery
store should reasonably expect customers to inspect
and read items while they are shopping. Thus, even if
Fox had been reading a box of crackers when she
fell -- a theory unsupported by the evidence in this
case -- her injuries were not unforeseeable.
On the
contrary, we find that the plaintiff’s fall and
resulting injuries were entirely foreseeable.
Id. at 4.5
As illustrated by these decisions, Tennessee courts tend to
find that stores owe a duty of care to protect shoppers against

5

The court also noted that the store’s own safety policies and
procedures acknowledged the “potential hazard of leaving a
display base empty.” Fox, 2000 WL 1424805, at *4.
16

the risk of harm posed by open-and-obvious conditions where it
is reasonably foreseeable that customers will be distracted by
the store’s merchandise and fail to notice the condition.

The

light fixtures in Read imposed a “special duty of care” upon the
store

to

“provide

safety

for

the

customers

whose

attention”

might be “diverted from their pathway to the ceiling.”
721084, at *2.

1998 WL

Similarly, in Fox, the plaintiff’s “injuries

were not unforeseeable” even had she, in fact, “been reading a
box of crackers when she fell,” because “a grocery store should
reasonably expect customers to inspect and read items while they
are shopping.”
“the

2000 WL 1424805, at *4.

foreseeability

and

gravity

of

In such circumstances,
harm

posed

from

[the]

defendant’s conduct, even if ‘open and obvious,’ outweigh[s] the
burden on the defendant to engage in alternative conduct to
avoid the harm,” creating “a duty to act with reasonable care.”
Coln, 966 S.W.2d at 43.
Decisions like Arrambide and Foster do not contradict that
premise.
objects

In those cases, the plaintiff-customers tripped over
in

the

aisle,

not

because

they

were

distracted

by

merchandise, but because they simply were not paying attention.
See Arrambide, 33 F. App’x at 200; Foster, 2012 WL 3027843, at
*4.

In neither case was the court required to determine whether

the store owed a duty of care to protect shoppers distracted by
merchandise from the risk of harm posed by an open-and-obvious
17

condition.

Those customers were not distracted by merchandise

when they fell.6
ALDI points out that McDavid acknowledges having noticed
the center-aisle display before she opened the freezer door and
that she has “herself attributed [her] action” of backing into
the display “to a lack of attention” on her part.
at 93-94.)

Tennessee courts have

“danger

known

was

and

appreciated

(ECF No. 20

recognized that whether a
by

the

plaintiff”

is

a

“relevant consideration[]” in determining duty when there is an
“open and obvious” condition.
e.g.,

Arrambide,

33

F.

Coln, 966 S.W.2d at 42; see,

App’x

at

201-02

(“[Plaintiff]

was

sufficiently aware of the pallet’s existence and familiar with
its placement for her to reasonably avoid any harm associated
with the placement of the pallet on the floor.”); cf. Green v.
Roberts,

398

S.W.3d

172,

181-82

(Tenn.

Ct.

App.

2013)

(explaining that “a plaintiff in a premises liability case has a
duty

to

see

what

is

in

plain

sight,”

and

noting

that

the

plaintiff “could have noticed what was near her feet, or she

6

ALDI also relies on Green v Roberts, 398 S.W.3d 172 (Tenn. Ct.
App. 2013), but that decision is factually distinguishable. In
Green, plaintiff tripped over a steel post in a parking lot.
Id. at 174.
Plaintiff was not a shopper who tripped over a
display piece or similar object in the aisle of a store. There
was no allegation in Green that the premises owner placed
anything in the parking lot that distracted the plaintiff or
competed for her attention.
18

could

have

refrained

from

stepping

backwards

without

looking

where her foot would land”).
That McDavid initially noticed the center-aisle display is
not dispositive.

Coln recognized that a premises owner might

owe a duty of care to invitees when there is an open-and-obvious
condition if the owner “has reason to expect that the invitee’s
attention may be distracted, so that he . . . will forget what
he has discovered.”

966 S.W.2d at 41.

Unlike Arrambide, the

evidence here creates a reasonable inference that, at the moment
she fell, McDavid was not aware of the precise location of the
center-aisle

display

behind

her,

an

awareness

that

otherwise

might have allowed her to reasonably avoid the potential harm
associated with the display.

Unlike the customer in Arrambide,

McDavid was distracted by merchandise at the moment she fell.
Viewing the evidence in the light most favorable to McDavid, it
is reasonable to conclude that she did not know and appreciate
the danger associated with the display because, after having
been

distracted

discovered.

by

merchandise,

she

forgot

what

she

had

See id., at 41-42.

Although there is evidence that McDavid was not “pay[ing]
attention” (ECF No. 40-3 at 163), and although premises owners
can reasonably expect invitees to be reasonably attentive, see
Foster, 2012 WL 3027843, at *4; Green, 398 S.W.3d at 181-82,
that evidence also must be viewed in the light most favorable to
19

McDavid.

Her admission that she “just didn’t pay attention”

when she backed away from the freezer is consistent with her
testimony that she did not “know how to explain that part of the
fall” because she was “shopping.”

(ECF No. 40-3 at 163.)

That

McDavid was distracted by merchandise explains why she did not
pay attention to what was behind her.

A jury could reasonably

draw that inference.
ALDI contends that “the defect complained of was part and
parcel of the display of merchandise within the store.”
No. 20 at 94.)

(ECF

It argues that, “[t]o hold that [ALDI] breached

a duty here would be tantamount to holding that a merchant can
never set up a display in the center of a wide aisle.”

(Id.)

ALDI argues that “[s]uch a holding would run afoul of the wellestablished rule of Tennessee law that a premises owner is not
an insurer of the safety of its patrons and would essentially
create strict liability on the part of an owner any time a
patron failed to see and appreciate a display that is open and
obvious.”

(Id.)

The question before the Court is not whether ALDI is liable
as a matter of law for injuries to McDavid that may have been
caused by the particular center-aisle display in this case, nor
whether stores are strictly liable for injuries arising from
center-aisle displays generally.

The Court does not hold that

ALDI breached its duty of care in this case.
20

The question is

whether ALDI owed customers like McDavid a duty of care, a duty
that arose because the foreseeability and gravity of harm posed
by ALDI’s maintenance of the center-aisle display outweighed the
burden on ALDI to engage in alternative conduct to avoid the
harm.

Having determined, on the facts of this case, that ALDI

owed a duty of care to customers like McDavid, it is for the
jury to decide whether ALDI breached that duty with respect to
the particular display at issue and whether any breach by ALDI
was the cause of McDavid’s injuries.

See Kelley, 796 S.W.2d at

157.
Because ALDI owed McDavid a duty of care, its Motion on
this ground is DENIED.
B.

Comparative Fault

Relying

on

Green,

ALDI

contends

that,

even

if

it

owed

McDavid a duty of care, “no reasonable jury could find under the
undisputed facts in this case that the plaintiff was anything
less than 50% at fault.”
comparative

fault

(ECF No. 20 at 95.)

system,

a

plaintiff

may

Under Tennessee’s
recover

damages

“reduced in proportion to the percentage of the total negligence
attributable to the plaintiff,” but only if the “plaintiff’s
negligence

remains

less

than

McIntyre, 833 S.W.2d at 57.

the

defendant’s

negligence.”

Green explained that, “[w]hile

comparative fault is typically a question for the trier of fact,
summary

judgment

is

appropriate
21

in

those

situations

where

reasonable minds could only conclude that the plaintiff’s fault
was equal to or greater than the fault of the defendant.”
S.W.3d at 178 (quotation marks and alteration omitted).

398
ALDI

argues that reasonable minds could not differ and that McDavid
was at least 50% at fault.

(ECF No. 20 at 95.)

Tennessee courts sometimes consider whether the plaintiff
was

paying

attention

as

part

of

the

duty

analysis.

ALDI

acknowledges that, in both Green and Foster, the court did not
reach the issue of comparative fault at summary judgment because
there was no duty of care.

ALDI cites no case where a court

has held that there was a duty of care and granted a premises
owner’s motion for summary judgment on the ground of comparative
fault.

Here, there are several facts based on which a jury

might conclude that McDavid was less than 50% at fault for any
injuries
distracted

caused
by

by

the

merchandise

fall,
when

including
she

that

fell.

McDavid

was

Questions

of

comparative fault are usually reserved for the jury.
398 S.W.3d at 178.

See Green,

The facts of this case do not warrant

departure from that rule.
ALDI’s Motion on this ground is DENIED.
V.

Conclusion
For the foregoing reasons, ALDI’s Motion is DENIED.

So ordered this 10th day of July, 2017.
22

/s/_Samuel H. Mays, Jr._____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

23