Titchnell v. Wal-Mart Stores East, LP

Filing 53

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT WAL-MART STORES EAST, LP'S MOTION FOR SUMMARY JUDGMENT (ECF. NO. 21 ). Signed by District Judge Thomas S. Kleeh on 4/26/2021. (dk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
LOIS A. TITCHNELL,
Plaintiff,
v.

CIVIL ACTION NO. 1:20cv30
(KLEEH)

WAL-MART STORES EAST, LP,
Defendant.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT WAL-MART STORES
EAST, LP’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 21]
Pending before the Court is Defendant Wal-Mart Stores East,
LP’s Motion for Summary Judgment [ECF No. 21]. For the reasons
discussed below, the Court denies the motion.
I.
On

February

19,

PROCEDURAL HISTORY
2020,

Plaintiff

Lois

A.

Titchnell

(“Plaintiff”) filed a complaint against Defendant Wal-Mart Stores
East, LP, (“Defendant”) alleging a negligence cause of action
seeking

alleged

damages

caused

by

her

slip

and

fall

at

the

Clarksburg, West Virginia, Wal-Mart store (the “store” or “WalMart store”). Compl., ECF No. 1. In her complaint, Plaintiff
requests all compensatory damages available to her under West
Virginia law. Id. Defendant timely answered the complaint on March
16,

2020.

ECF

No.

5.

Discovery

ensued,

including

various

depositions of parties and witnesses. Defendant now moves for
summary judgment against Plaintiff, arguing that it is entitled to
judgment as a matter of law because the puddle of water in the

Titchnell v. Wal-Mart

1:20cv30

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT WAL-MART STORES EAST,
LP’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 21]

store was “open and obvious.” ECF No. 21. The matter is fully
briefed and ripe for decision.
II.

STANDARD OF REVIEW

Summary judgment is appropriate if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). The movant
“bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of
‘the

pleadings,

depositions,

answers

to

interrogatories,

and

admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
nonmoving party must “make a sufficient showing on an essential
element of her case with respect to which she has the burden of
proof.” Id. Summary judgment is proper “[w]here the record taken
as a whole could not lead a rational trier of fact to find for the
non-moving party, there [being] no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citing First Nat’l Bank of Ariz. v. Cities Serv. Co.,
391 U.S. 253, 288 (1968)). This Court views the evidence in the
light most favorable to Plaintiff, the non-moving party, and draws
any reasonable inferences in Plaintiff’s favor. See Fed. R. Civ.

2

Titchnell v. Wal-Mart

1:20cv30

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT WAL-MART STORES EAST,
LP’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 21]

P.

56(a); see Henry

v.

Purnell,

652

F.3d

524,

531

(4th

Cir.

2011) (en banc).
III. FACTS
At the summary judgment stage, the Court considers the facts
in the light most favorable to the non-moving party.

See Scott v.

Harris, 550 U.S. 372, 378 (2007) (At summary judgment posture,
“courts

are

required

to

view

the

facts

and

draw

reasonable

inferences in the light most favorable to the party opposing the
summary

judgment

motion.”

(internal

quotations

and

revisions

omitted)); see also Rhoades v. County Commission of Marion County,
Civil Action No. 1:18-CV-186, 2020 WL 807528, at *1 (N.D.W. Va.
Feb. 18, 2020).
This is a slip and fall case that occurred at the Wal-Mart
store on Emily Drive in Clarksburg, West Virginia, on January 30,
2019. Compl., ECF No. 1, ¶¶ 7-10. Lois Titchnell (“Plaintiff”) was
75 years old when she entered the Wal-Mart store and slipped and
fell on the wet floor just beyond the entrance. Id. Plaintiff
sustained a broken hip from the fall, that required a $55,000
surgery. The weather conditions that day were cold, snowy, and
“kind of sloppy.” ECF No. 22-4, Pl. Dep. 25:21-24, 35:7-11.
On the date of the incident, Plaintiff walked in the first
set of sliding doors of the Wal-Mart store entrance, noticed mats
on the ground, and walked more slowly because of the inclement
3

Titchnell v. Wal-Mart

1:20cv30

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT WAL-MART STORES EAST,
LP’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 21]

weather. Pl. Dep. 26:1-28:24. She observed water being tracked
into the store. Id. at 26:14-21. As she continued through the
second set of the entrance sliding doors, she turned left toward
the shopping carts, stepped off the mat and onto the tile floor
“in water and ice on the floor.” Id. at 29:2-15. She fell on her
left side. Id. Once Plaintiff walked through the second set of
sliding doors, and before she turned left toward the shopping
carts, she did not see anything on the floor. Id. at 29:2-5.
After she fell, Plaintiff “saw the water on the floor,” noting
that it “looked like a muddy puddle,” likely a “foot long and
probably eight inches wide.” Id. at 29:14-18, 31:11-14. The puddle
was located on the tile between the mat and the buggies. Id. at
29:2-30:7. Plaintiff only identified the hazard after she had
fallen because she was not looking down before she stepped into
the puddle. Id. at 30:1-7. Plaintiff submits that nothing else was
blocking her view of the puddle. Id. at 30:1-31:20.
Plaintiff alleges negligence as the sole cause of action in
the

complaint,

specifically

seeking

all

compensatory

damages

available under West Virginia law, such as past and future physical
and emotional pain and suffering; past and future mental anguish,
emotional distress, annoyance, and inconvenience; past and future
medical expenses; and past and future loss of enjoyment of life.
Compl., ECF No. 1.
4

Titchnell v. Wal-Mart

1:20cv30

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT WAL-MART STORES EAST,
LP’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 21]

IV.

DISCUSSION

In its Motion for Summary Judgment, Defendant argues that it
is entitled to judgment as a matter of law because Plaintiff cannot
establish a legal duty owed and breached by Defendant, specifically
a duty of care to warn and protect Plaintiff from a puddle of water
that Defendant claims was “open and obvious” to patrons in the
Wal-Mart store.
A. Duty of Care – Open and Obvious
Defendant asserts that the puddle of water in the Wal-Mart
store was “open and obvious.” See Burdette v. Burdette, 127 S.E.2d
249 (W. Va. 1962). “Open and obvious” is a legal doctrine codified
by West Virginia Code § 55-7-28(a):
a possessor of real property, including an owner, lessee
or other lawful occupant, owes no duty of care to protect
others
against
dangers
that
are
open,
obvious,
reasonably apparent or as well known to the person
injured as they are to the owner or occupant, and shall
not be held liable for civil damages for any injuries
sustained as a result of such dangers.
It

is

well-settled

West

Virginia

law

that

the

owner

or

occupant of a premises - the Defendant Wal-Mart - owes to an
invited person - the Plaintiff - the duty to exercise ordinary
care to keep and maintain the premises in a reasonably safe
condition. See Syl. Pt. 2, Burdette. However, “the statute does
not preclude liability as a matter of law . . . where there is a
material question of fact as to whether the danger was open and
5

Titchnell v. Wal-Mart

1:20cv30

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT WAL-MART STORES EAST,
LP’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 21]

obvious.” Medley v. Lowe’s Home Centers, LLC, 1:18-CV-224, 2020 WL
2616399

at

*2

(N.D.W.

Va.

May

22,

2020)

(internal

citation

omitted). As discussed below, there remains a material question of
fact as to whether the puddle of water on which Plaintiff slipped
and fell was open and obvious.
Defendant relies on Senkus v. Moore, 535 S.E.2d 724 (W. Va.
2000), wherein the Supreme Court of Appeals of West Virginia upheld
a circuit court’s ruling of summary judgment in favor of the
defendants in an alleged negligence “trip and fall” property defect
case. In Senkus, the plaintiff tripped over a scale located in
plain view in the hallway of defendant’s veterinary hospital. Id.
at 726. The Court upheld the circuit court’s finding that the scale
in the hallway was an open and obvious hazard in plain view to all
veterinary hospital patrons and that the plaintiff failed to show
how the placement of the scale in the hallway breached any duty
owed to the plaintiff “or that it was inherently dangerous or
unsafe.” Id. at 727.
Defendant

also

argues

that

this

case

warrants

summary

judgment like Aitcheson v. Dolgencorp, LLC., No. 3:18-CV-174, 2020
WL 411037 (N.D.W. Va. Jan. 24, 2020), aff'd sub nom. Aitcheson v.
Dolgencorp, LLC, 830 F. App'x 723 (4th Cir. 2020). That case also
presents facts that are not analogous to the facts here. In
Aitcheson, the United States District Court for the Northern
6

Titchnell v. Wal-Mart

1:20cv30

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT WAL-MART STORES EAST,
LP’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 21]

District of West Virginia considered a negligence claim by a
plaintiff who tripped over an eight-foot ladder which had fallen
across the defendant store’s entrance. Id. at *1. After an analysis
of West Virginia’s “open and obvious” rule, the Court granted the
defendant summary judgment, finding: “No genuine issue of material
fact exists in the present case. . . .[T]he ladder was an open,
obvious and reasonably apparent hazard to incoming patrons.” Id.
at *5.
Plaintiff Titchnell responds, relying on Medley v. Lowe’s
Home Centers, LLC, 1:18-CV-224, 2020 WL 2616399 at *2 (N.D. W. Va.
May 22, 2020), where the Court found there was a factual dispute
about the size and appearance of the pothole in which the plaintiff
fell, and whether the plaintiff failed to look effectively before
she fell. Id. at *2-3. The defendant in Medley alleged open and
obvious there, too. Id.
Finding there remains a genuine dispute of material fact as
to whether the water puddle was open and obvious, the Court denies
the motion [ECF No. 21]. The obviousness of an eight-foot ladder
or veterinary clinic scale, as discussed above, and a puddle of
water on the floor is an incongruent set of facts, one that is a
triable question of fact for the jury to determine. Plaintiff
testified that she knew there was inclement weather, and that she
was walking carefully because of that knowledge, but she also
7

Titchnell v. Wal-Mart

1:20cv30

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT WAL-MART STORES EAST,
LP’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 21]

submits that she did not see the water puddle on the floor in the
area where she fell until after she had fallen. Pl. Dep. 29:1418, 31:11-14. There is video evidence from which a reasonable juror
could

conclude

that,

as

Plaintiff

walked

through

the

second

entrance, she was not looking at the floor, and therefore did not
see the water puddle. See ECF No. 22-3, Exhibit 3 to Response.

A

reasonable juror could also conclude from the same video that the
puddle of ice and water was not “readily apparent” considering all
of the factual circumstances including the color of the floor tile.
Because a reasonable juror could conclude that the puddle of water
was a hidden – or at least difficult to appreciate - danger, one
that was not an open, obvious, and reasonably apparent hazard to
incoming patrons, Defendant fails to show that it is entitled to
judgment as a matter of law on Plaintiff’s negligence claim.

The

disputed facts and the inferences that can be drawn from them
require jury resolution.
V.

CONCLUSION

For the reasons discussed above, the Court DENIES Defendant’s
Motion for Summary Judgment [ECF No. 21]. The final pretrial and
settlement conference remains scheduled for June 18, 2021 at 2:00
p.m. The trial in this matter will begin at 9:30 a.m. on July 7,
2021, at the Clarksburg, West Virginia, point of holding court.
It is so ORDERED.
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Titchnell v. Wal-Mart

1:20cv30

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT WAL-MART STORES EAST,
LP’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 21]

The Clerk is directed to transmit copies of this Order to all
counsel of record.
DATED: April 26, 2021
/s/ Thomas S. Kleeh
THOMAS S. KLEEH
UNITED STATES DISTRICT JUDGE

9