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Elrod v. Dolgencorp, LLC

United States District Court, S.D. Alabama, Southern Division

February 9, 2017

JERRY ELROD Plaintiff,



         A jury trial in this action commenced on December 12, 2016. After the Plaintiff rested his case and the Defendant informed the Court that it would not present any additional evidence in its defense, a motion for judgment as a matter of law (Doc. 51) was filed and arguments presented outside the presence of the jury. After consideration of the motion, the arguments of counsel and the evidence presented during trial, the Court informed counsel that a judgment as a matter of law would be entered on behalf of the defendant pursuant to Rule 50(a), Federal Rules of Civil Procedure. At that point, the jury was discharged and the trial adjourned.


Under Rule 50, a court should render judgment as a matter of law when there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. Fed.R.Civ.P. 50. We review all of the evidence in the record and draw all reasonable inferences in favor of the nonmoving party. Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192-93 (11th Cir.2004) (citing Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 148-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Reeves, 530 U.S. at 150, 120 S.Ct. 2097; see also Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir.1983) (“Appellate courts reviewing a cold record give particular deference to credibility determinations of a fact-finder who had the opportunity to see live testimony.”). “[A]lthough the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves, 530 U.S. at 151, 120 S.Ct. 2097. “[I]f there is substantial conflict in the evidence, such that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions, the motion must be denied.” Christopher v. Florida, 449 F.3d 1360, 1364 (11th Cir. 2006) (internal citations and quotation marks omitted).

Gowski v. Peake, 682 F.3d 1299, 1310-11 (11th Cir. 2012). In other words, “judgment as a matter of law is appropriate only if the facts and inferences point so overwhelmingly in favor of one party that reasonable people could not arrive at a contrary verdict.” Brown v. Alabama Dep't of Transp., 597 F.3d 1160, 1173 (11th Cir. 2010) (citation and internal marks omitted).

         II. DISCUSSION A. FACTS.[1]

         After waiting out a hard rain on August 17, 2013, the Plaintiff, Jerry Elrod, decided that it was safe to travel to the Dollar General Store, located in Orange Beach, Alabama, to purchase furniture polish for his wife. The trip only took a few minutes since the store was approximately half a mile from his home in Orange Beach. The rain was just ending and even though when he parked his car his windshield wipers were still on, he did not need to use an umbrella from his car to the entrance of the store.

         When he arrived at the store, he used the handicapped parking space and walked approximately 10-15 feet across wet pavement. During this walk, he did not notice any standing puddles of water because the parking lot was designed to slope away from the entrance and carry water into drain holes. Once he reached the sidewalk, it was covered by an awning, as was the storage area for the buggies used by customers. Wearing a favorite pair of his closed-toe sandals, he walked onto an outside rubber doormat and then stepped inside the entryway of the store onto a second cloth mat. He did not notice any accumulation of water on the sidewalk, the mats, or the floor of the store nor did he notice any wet floor warning signs. Without stopping to wipe his feet on the mat inside the store, he stepped from the second mat onto the floor of the store and immediately slipped and fell. There is no dispute that he slipped on a wet floor and a small dark skid mark made by his sliding shoe is visible on the videotape that was submitted into evidence. Without assistance, he was able to get up and continue his entry into the store. Upon getting off the floor, he felt that his calf was wet and, for the first time, saw two puddles of water on the floor approximately 12-16 inches in size. Plaintiff believes that accumulated rainwater from the mat caused him to fall.

         This store was a fairly new Dollar General Store, having opened only approximately three months before Mr. Elrod fell. The store parking lot was designed to drain water away from the entranceway by sloping the parking lot. A 20 x 10 foot awning covered the entranceway and a portion of the outside sidewalk. It was also the practice of this store to keep two mats down at all times, one outside the entrance and one just inside. The Store's standard operating policies also included a requirement to inspect the entranceway at least three times per day for hazards that may create a danger to its customers. These inspections were to include checking the mats for water accumulation and the condition of the floor around the mats, especially on rainy days when it would be expected that customers on their feet, buggies, umbrellas and other items that may have gotten wet from the rain, would bring in some water.

         Plaintiff called three of the store employees as witnesses: the manager, Angela Spiller, Mary Kathleen Knipe and Keily Cruz. Cruz was the cashier stationed just 5-7 feet away from the entranceway and worked at cash register number one from 8 a.m. until the time of the fall, approximately 11:00 a.m. It was part of her job to greet customers as they entered the store and in performing that task, she was able to visually inspect the entranceway for potential hazards. She confirmed that it was a typical rainy day in Orange Beach on the day Mr. Elrod fell and that customers were tracking in water from outside. She testified that on such days it was the practice to mop the floor after every 10-20 customers but did not remember anyone mopping the floor where Plaintiff fell on that day. She believed that other members of the staff had checked the entranceway for hazards, including an accumulation of rainwater on the floor or the mats.

         Plaintiff described his initial pain from the fall as being located in his hips but then he realized that he was suffering from pain in the left knee as well. He briefly leaned on a clothes rack and rubbed his left knee before continuing to walk about the store in search of furniture polish. He explained that, as a 62-year-old, he was able to lift himself up off the floor after tearing menisci and the ACL in his left knee because he must have been in shock and was embarrassed. Even though in pain, Plaintiff did not advise any of the staff that he had been hurt from the fall nor did he request that they complete an incident report.[2] Even when asked by his neighbor, who happened to be in the store, if he needed help, he responded in the negative.

         He continued to move through the store looking for furniture polish but was advised by an employee, Kathleen Knipe, that his brand was not in stock. During the conversation she had with him, he asked her if she knew that he had fallen. Plaintiff's testimony was that she responded by saying that she had put a sign where he had fallen, an action that was clearly recorded on the video recording of the incident. He did not ask her if she had mopped up the puddles of water that he saw after falling or change the mat that he considered to be saturated with water. His only suggestion was that she put up a warning sign. The video recording clearly shows that Ms. Knipe had an opportunity to mop up any puddles of water or change a saturated mat during the time she was setting up the warning sign. Her testimony was that she put the sign in place to appease Plaintiff and did not observe any puddles of water on the floor or a mat soaked in rainwater.

         During the minutes that Plaintiff continued to look for furniture polish, he decided to buy some bacon. Although he was experiencing pain, he was able to walk about the store and complete his purchase. After completing his purchase, he was able walk to his car and drive himself home. It was not until he returned home that his knee began to swell.

         Plaintiff and his wife remained in Gulf Shores from Saturday (day of fall) until the next Monday before returning to the Birmingham area. He did not seek medical attention but self medicated with Lortab that had been prescribed for his right knee.[3] By delaying his trip back to Birmingham until Monday to avoid the Sunday traffic, he was unable to see his orthopedic surgeon until Wednesday because she was occupied with surgeries on Tuesday. He sought no other medical care during the interim.

         On August 21, 2013, Plaintiff went to see Dr. Martin for the first time after his fall. He complained of extreme pain, difficulty walking, and instability in his left knee. She asked medical history questions and performed an examination. Radiographs were obtained, an MRI was performed, and Dr. Martin completed an ultrasound exam to see if Plaintiff had sustained a quadriceps tear and to examine any fluid on the knee. Her review of the tests revealed a bone marrow edema (bruising through the bone), an ACL tear and meniscus tears. Subsequently, she performed arthroscopic surgery on the left knee on September 27, 2013. She completed a partial medial meniscectomy (removal of the torn portions of the meniscus) and a debridement of the anterior cruciate ligament (torn, loose and unstable portions of ligament shaved away). Plaintiff did not choose to undergo reconstruction of the ACL because he was not considered a good candidate for ACL reconstruction given his age and the overall condition of his knee.[4] Dr. Martin opined that, given the Plaintiff's age and the condition of his knee, a knee replacement could be expected in his future. Also, she opined that the ACL tear was the result of the trauma caused by the fall inside the Dollar General Store on August 17, 2013.

         Dr. Martin's opinions were provided without the benefit of getting a complete medical history from the Plaintiff. Plaintiff failed to tell her about the diagnosis and treatment provided by Dr. Ryan Cordry, an orthopedic surgeon, between November 8, 2010 and January 21, 2011. He went to Dr. Cordry with complaints of knee pain. An MRI of the left knee, performed on November 8, 2010, revealed that Mr. Elrod had swelling in the left knee and tears in the posterior horn medial and anterior horn lateral menisci. Dr. Cordry's treatment records show that Plaintiff received knee injections and a prescription for Ambien. After Plaintiff's initial visit, he returned to see Dr. Cordry on January 21, 2011 and during that visit a surgical procedure on the left knee was tentatively scheduled for January 31, 2011. Plaintiff did not return for surgery because he lost faith in Dr. Cordry and decided that he did not need surgery at the time.

         Plaintiff went to his third orthopedic surgeon, Dr. Darin Tessier, on January 7, 2015, over two years after surgery on his left knee.[5] Dr. Tessier's assessment was that Plaintiff came to him as a 64 year-old male with a history of a multiligamentous knee injury that required surgery. The x-ray results showed conditions that would require surgical intervention. They were what appeared to be lateral instability, the femur was translated with relation to the tibia and degenerative arthritis. Dr. Tessier determined that part of the lateral instability in the knee could have developed after the surgery performed by Dr. Martin. Mr. Elrod had degenerative changes that Dr. Tessier described as lateral compartment ...

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