Powell v. Wal-Mart Stores, East, L.P.

          ORDER

          KRISTI K. DuBOSE, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant's Motion for Summary Judgment (Doc. 33), Plaintiffs' Response (Doc. 35), and Defendant's Reply (Doc. 36).

         I. Findings of Fact ^[1]

         This is 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, 51-52). Mrs.

         Powell 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 wages.

         II. Standard of Review

         “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). Rule 56(c) provides as follows:

(c) Procedures

(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. An 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 ...