United States District Court, S.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE
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.
JUDGMENT AS A MATTER OF LAW
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).
DISCUSSION A. FACTS.
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.
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.
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.
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.
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. Even when asked by his neighbor, who
happened to be in the store, if he needed help, he responded
in the negative.
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
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.
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. 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.
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. 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.
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.
went to his third orthopedic surgeon, Dr. Darin Tessier, on
January 7, 2015, over two years after surgery on his left
knee. 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 ...