United States District Court, S.D. Alabama, Southern Division
K. DuBOSE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motion for
Summary Judgment (Doc. 33), Plaintiffs' Response (Doc.
35), and Defendant's Reply (Doc. 36).
Findings of Fact 
a slip and fall premises liability case. On the evening of
March 13, 2016, Henry Powell (Mr. Powell) drove his wife
Angela Ann Powell (Mrs. Powell) to a Walmart store in
Brewton, Alabama. (Doc. 1; Doc. 10; Doc. 33-2 at 36-38 (Dep.
A.Powell)). Mrs. Powell walked into the store and into the
exterior patio and garden area, picked up two plants, and
started to walk back inside the store to the cash register to
make her purchase. (Doc. 33-2 at 38-43 (Dep. A.Powell)). On
the way Mrs. Powell slipped and fell on a floor rug/mat.
(Id. at 45-47). Mrs. Powell describes the fall: she
"stepped on the edge [of the rug], [and] the rug went
out from under me[--] [i]t just bunched up and I hit the
floor[, ]" "[i]t just slipped[, ]" and "I
fell feet out in front of me on my butt." (Id.
at 44-46). Mrs. Powell got up, picked up the plants, and
noticed the presence of "a good bit of" water on
the backs of her legs and shorts. (Id. at 48,
also saw "a substantial amount of water" under the
rug (where it had bunched up when she slipped). (Id.
at 50-52, 54). Mrs. Powell headed toward the register and
picked up a third plant along the way. (Id. at 48,
57-58). Mrs. Powell purchased the plants and reported the
fall to the cashier, stating that something needed to be done
so no one else would be injured, pointing to the area of the
fall. (Id. at 49, 58; Doc. 35-7 at 3 (Photograph
C)). Mrs. Powell exited the store, got into a vehicle driven
by Mr. Powell, and told him what happened. (Doc. 33-2 at 58
(Dep. A.Powell)); Doc. 33-3 at 13-14 (Dep. H.Powell)). Mr.
Powell went into the store, asked to speak to a manager, and
reported the incident. (Id.) Mr. Powell looked at
the area of the fall, saw the rug bunched up, picked it up,
and saw "all the water under it." (Doc. 33-3 at 14
(Dep. H.Powell)). On February 1, 2018, Plaintiffs filed a
complaint against Defendant Wal-Mart Stores East, L.P.
(Walmart) alleging: 1) negligence; 2) wanton conduct; and 3)
loss of consortium. (Doc. 1; Doc. 10 (as amended)). Damages
sought include medical expenses, mental anguish, pain and
suffering, emotional distress, permanent injury, and lost
Standard of Review
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). Rule 56(c) provides as follows:
(1) Supporting Factual Positions. A
party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials
in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.
(2) Objection That a Fact Is Not Supported by
Admissible Evidence. A party may object that
the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court
need consider only the cited materials, but it may consider
other materials in the record.
(4) Affidavits or Declarations.
affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or