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Mendez v. Walgreen Co.

United States District Court, N.D. Alabama, Northeastern Division

June 17, 2015



HARWELL G. DAVIS, III, Magistrate Judge.

The above-entitled civil action is before the court on the motion for summary judgment filed by defendant. (Doc. 6). The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. ยง 636(c) and Fed.R.Civ.P. 73. (Doc. 14). Plaintiff in this matter, Regina Mendez, brought this action alleging that defendant, Walgreen Company (Walgreen's), is liable to her for negligence (Count One) and wantonness (Count Two), which resulted in injury to plaintiff when she slipped and fell on a wet floor inside defendant's business. (Doc. 1-1, Complaint). Plaintiff filed a response to defendant's motion for summary judgment. (Doc. 9). This motion is now ready for disposition.


"The court shall grant 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." Fed.R.Civ.P. 56(a). Defendant, as the party seeking summary judgment, 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 demonstrates the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A genuine issue of material fact is shown when the non-moving party produces evidence so that a reasonable factfinder could return a verdict in her favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007). If the non-moving party fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. In reviewing whether the non-moving party has met her burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in her favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir. 1992) (internal citations and quotations omitted). However, speculation or conjecture cannot create a genuine issue of material fact. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). A "mere scintilla of evidence" in support of the non-moving party also cannot overcome a motion for summary judgment. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).


On the date of the event made the basis for this action, September 15, 2011, plaintiff went to Walgreen's to buy some cigarettes at around 6:00 p.m. (Doc. 6-2, Plaintiff's Depo., at 54-56). It was raining lightly, or "drizzling, " at the time plaintiff entered the store. ( Id. at 54, 65). She was driven to the store by her husband who let her out directly in front of the entrance. He remained in front of the store. ( Id. at 59-60). There are twin doors on the front of the store, one on the left and one on the right. The doors are separated from each other by a few feet. Initially, plaintiff entered the store through the door on the right (as faced from the outside of the store). ( Id. at 58). Just inside each door was a small mat placed on the floor. Another larger mat was on the floor just beyond these two mats. However, it was placed such that it would be walked upon only by someone entering through door on the right. (Doc. 6-3, Photographs A-C).

Once inside the store, plaintiff realized that she did not have enough money for her cigarettes and she left to go back to her vehicle to get more money. ( Id. at 58-59). When she re-entered the store, plaintiff came through the door on the left. (Doc. 6-2, Plaintiff's Depo., at 60-61). When she stepped off the single mat in front of that door onto the floor, plaintiff's foot slid forward and she fell. (Doc. 6-3, Photographs E-F and video; Doc. 6-2, Plaintiff's Depo., at 87). Plaintiff was looking straight ahead and was not looking down at the time of her fall. (Doc. 6-2, Plaintiff's Depo., at 66).

Plaintiff did not see any water on the floor before she fell. However, she asserts that the floor was wet at the time of her fall. When asked how she knew this, plaintiff stated, "[b]ecause my butt was wet." Plaintiff later stated that she did not recall whether she looked to see if there was water on the floor after she got up after her fall. In this regard, the following exchange occurred during her deposition:

Q. Did you at any time see any water on the floor there at any time?
A. I don't know. I mean, I know when I left I noticed my butt was wet. That's how I knew that there was water - I don't recall. I don't - I don't recall. I don't remember.
Q. You can't testify that you had seen any water on the floor there at any time, then, is that correct?
A. I don't remember.

(Doc. 6-2, Plaintiff's Depo., at 67-68).

Plaintiff also did not recall seeing any dirt or debris on the floor at the time of her fall. ( Id. at 69-70). According to plaintiff, the large mat did not contribute to her fall. ( Id. at 90). Plaintiff testified that her husband, who observed her fall and came into the store immediately afterward, did not tell her he saw anything on the floor. ( Id. at 71-72). Plaintiff also testified that her daughter, who also came into the store immediately after plaintiff's fall, said that she did not see or notice anything. ( Id. at 72). Plaintiff has returned to this store once or twice since her fall but has not had any discussions with anyone concerning how the fall may have happened. ( Id. at 94).


A. Negligence

"In order to prove negligence, a plaintiff must show that the defendant breached an existing duty, causing damage to the plaintiff." Landreau v. Wal-Mart Stores, Inc., 75 F.Supp.2d 1318, 1321 (M.D.Ala. 1999). In other words, a negligence claim under Alabama law has four elements: duty, breach, causation and damages. Palmer v. Infosys Techs. Ltd, Inc., 888 F.Supp.2d 1248, 1255 (M.D.Ala. 2012) (citing Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala. 2001)). Where, as here, the plaintiff is a store customer and, thus, a business invitee, the defendant owes her a duty to exercise reasonable care in maintaining its premises

["]in a reasonably safe condition." Bishop v. South, 642 So.2d 442, 445 (Ala. 1994). This duty requires [the defendant] to "warn of hidden defects and dangers that are known to it, but that are unknown or hidden to the invitee." Raspilair v. Bruno's Food Stores, Inc., 514 So.2d 1022, 1024 (Ala. 1987). Generally, though, this duty does not make the invitor liable "for injuries to an invitee resulting from a danger which was known to the invitee or should have been observed by the invitee in the exercise of reasonable care." Quillen v. Quillen, 388 So.2d 985, 989 (Ala. 1980).

Landreau, 75 F.Supp.2d at 1321-22 (alterations supplied).

The parties assume that the foreign substance at issue in this case was tracked-in rain water. Plaintiff asserts that there is a factual question regarding whether the store should have taken more affirmative measures to prevent her fall. According to plaintiff, the evidence reflects that the store employees knew of water in the floor prior to plaintiff's entry; had placed mats in front of the doors over the tile floor which, in her opinion, did not adequately cover the area where the water was tracked in; did not have a warning sign anywhere near the area where plaintiff fell; and she fell just as she stepped off the mat on her way into the store. (Doc. 9, Plaintiff's Brief, at 13).

Alabama law is well established that rain water cases are unequivocally distinct from other slip-and-fall cases. See Gulas v. Ratliff, 283 Ala. 299, 216 So.2d 278, 281 (1968) ("A fall caused by snow or rain is distinguishable from a fall resulting from some other object as is usual in a slip and fall case."). The testimony reflects that it was a rainy day and that plaintiff was aware that it had been raining. This is one of the reasons why rain-caused slip-and-fall is different from a run-of-the-mill slip-and-fall case. Despite plaintiff's claim that Walgreen's had superior knowledge of the danger of wet floors that existed on the date of her fall, generally, everyone is aware that, on rainy days, water splashes in and people track water inside of businesses. Thus, business invitees are aware or should be aware that, if they enter a business on a rainy day, the floor could be wet and slippery. See Ex parte Neese, 819 So.2d 584, 590 (Ala. 2001) (location of door mat coupled with being wet from the rain was obvious to the plaintiff); Shelton v. Boston Fin., Inc., 638 So.2d 824, 825 (Ala. 1994) (reasonable person would be expected to realize that rain would cause grass to become slippery); Hines v. Hardy, 567 So.2d 1283, 1284 (Ala. 1990) (plaintiff knew crosstie was wet from rain and thus, as a matter of law, was on notice of the slippery condition); Lawson v. Williams, 514 So.2d 882, 883 (Ala. 1987) (plaintiff should have known that leaves accumulated after rain would probably be wet and slippery).

However, the case law in Alabama seems to present conflicting conclusions regarding when summary judgment is appropriate in such rainy-day cases. The Alabama Supreme Court has observed that a "fall caused by snow or rain is distinguishable from a fall resulting from some other object as is usual in a slip and fall case." Gulas v. Ratliff, 216 So.2d 278, 281 (Ala. 1968). "It is not the duty of persons in control of [premises] to keep a force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several obvious reasons unnecessary to mention in detail." Id. (alteration supplied) (quoting Cox v. Goldstein, 53 So.2d 354, 357 (Ala. 1951)). "The ...

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