United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION
This is
a slip and fall case. Plaintiff, Diane Harris, seeks to
recover damages for personal injuries she sustained while
shopping in the Huntsville, Alabama store owned and operated
by defendant, Wal-Mart Stores East, L.P.
(“Wal-Mart”), allegedly as a result of the
negligence and/or wantonness of its employees.[1] The action was
commenced in this court under the diversity of citizenship
statute, 28 U.S.C. § 1332(a)(1).[2] The following opinion
addresses two motions filed by Wal-Mart: the motion to strike
the affidavit of Dexter Morris, and preclude plaintiff from
using him as a witness;[3] and, Wal-Mart's motion for summary
judgment.[4] Following consideration of the motions,
pleadings, briefs, and evidence, this court concludes, for
the following reasons, that both motions should be granted.
I.
SUMMARY OF FACTS
Plaintiff
regularly shopped at the Wal-Mart store located at 11610
South Memorial Parkway in Huntsville, Alabama (“the
store”) prior to the date of the incident leading to
this suit.[5] She had not previously experienced any
problems while doing so.[6] Friday, June 24, 2016, however, was
different. Plaintiff entered the store with her ten-year-old
great-grandson, Caleb, for the purpose of purchasing chicken
and french fries from the frozen food section.[7] They walked from
the front entrance toward the back of the store, with Caleb
trailing only by a few steps behind his
grandmother.[8] The store was well-lit, clean, and
orderly, and plaintiff saw nothing to indicate there might be
a spill or other wet spot on the floor of the frozen food
section.[9]
As
plaintiff began to turn right into the second frozen food
aisle, she walked around a silver-colored pillar at the
corner of the aisle, and Caleb followed slightly to her
left.[10] She did not see any water or other
liquid on the floor; instead, she saw only that the floor was
“very shiny, ” as though it had just been
waxed.[11]Nevertheless, as plaintiff rounded the
corner, her foot slipped and twisted. She attempted to stop
her fall with her hand, but was not successful, and her
bottom hit the floor.[12] She also struck the pillar with her
right arm, and twisted her knee and ankle.[13]
Plaintiff
did not see any liquid on the floor during or after her fall,
but she did feel liquid with her hand as she attempted to
arise from the floor. Her clothing absorbed the remainder of
the liquid.[14] She does not know the color or nature of
the liquid, the size of the puddle, the means by which it
came to be on the floor, the length of time it had been on
the floor, or whether Wal-Mart had received a report about it
prior to her fall.[15] She also did not see any wet footprints
or shopping cart tracks originating from the area of her
fall.[16]
Paul
Blasius was an inside department manager in the store's
automotive care center on the date of plaintiff's
fall.[17] His duties included ensuring that the
store remained in a reasonably safe condition for the use of
Wal-Mart's customers and “associates”
(i.e., employees).[18] To that end, he and other
associates were responsible for monitoring the store's
floors for safety, and conducting periodic checks of the
floors, not only in his own department, but also throughout
the store.[19] Wal-Mart trained him to clean up spills
when possible, but if a spill was too large for one person to
clean, to stand guard over it until another associate was
able to deliver the necessary cleaning
supplies.[20]
Balsisus's
shift ended just before plaintiff's fall on June 24th. He
clocked out and did some personal shopping before departing
for home. As he was walking down the main aisle that extended
from the front to the back of the store in the grocery
section, he saw plaintiff fall as she “turned the
corner onto one of the freezer aisles.”[21]Balsius
immediately walked over to plaintiff and asked if she was all
right. Balsisus did not have any medical training; and,
because he did not know the extent of plaintiff's
injuries, he did not touch her or attempt to lift her from
the floor. Instead, plaintiff rose from the floor on her own,
without assistance. Balsius waited with her until an on-duty
store manager arrived, and then he procured a chair for her
to sit upon.[22]
After
plaintiff stood up, Balsius observed a “small clear
puddle of liquid, ” approximately four inches in
diameter, on the floor near the spot where she had slipped
and fallen.[23] He later stated that:
There were no other puddles. There were no splatters of
liquid around the puddle. The puddle was approximately six
inches from the freezer and there was no trail of liquid
leading from the freezer to the puddle. There was no liquid
around the freezer other than this one four inch puddle which
was located approximately six inches away from the freezer.
There were no footprints, shopping cart tracks or any other
marks in or around the puddle of clear liquid. There were no
containers on the floor from which the puddle could have
originated. I do not know how the puddle came to be on the
floor.
Doc. no. 22-6 (Affidavit of Paul Blasius), ¶ 7. Blasius
did not observe the puddle on the floor before plaintiff
fell, and he had no knowledge of anyone reporting the puddle
to Wal-Mart associates or managers before her
fall.[24]
Scharlet
Shackelford was the store's assistant manager during June
of 2016.[25]As in the case of Blasius,
Shackleford's job duties included ensuring that the store
remained in a reasonably safe condition for the use of
customers and employees. That required her to personally
monitor the floors for safety and to conduct periodic checks.
As a manager, it also required Shackelford to direct
maintenance employees to “continuously walk the sales
floor looking for hazards, ” and to “spot clean
if necessary.”[26] Shackleford reiterated Wal-Mart's
policy of training employees to either clean up a spill, or
to stand guard over the spill until it had been
removed.[27]
Shackleford
received notice of plaintiff's fall by radio
transmission. She “immediately went to the frozen food
aisle and saw [plaintiff] leaning up against the freezer and
a child standing with her.”[28] Plaintiff told
Shackleford that she had slipped and hit her right arm on the
silver-colored pillar at the end of the aisle. Plaintiff did
not want an ambulance to be called. Consequently, Shackleford
prepared a written Incident Report, and plaintiff completed
her shopping and left the store.[29]Shackleford observed a
single, four-inch-wide puddle of clear liquid near the corner
of the aisle where plaintiff fell. The puddle was
approximately six inches from the nearest freezer, but
Shackleford did not see a trail of liquid leading from the
freezer to the puddle.[30] She inspected the nearest freezer,
but it was not leaking, and neither were any of the other
freezers in the frozen food section.[31] No. one had reported the
puddle prior to plaintiff's fall, and Wal-Mart did not
have any other knowledge of it.[32]
Plaintiff
testified that none of the Wal-Mart employees who assisted
her said anything to indicate that other customers had fallen
in the same area. She also acknowledged that they did not
seem to be aware of any freezer leaks or any other problems
with liquid on the floor in that area.[33]
Plaintiff's
right ankle, leg, buttock, and arm hurt the day following her
fall, and so she drove herself to the emergency room. X-rays
did not show any broken bones. The emergency room physician
diagnosed her as suffering from sprains, prescribed a splint,
and instructed her to follow up with her primary physician,
which she did the following week.[34] Plaintiff's primary
physician referred her to an orthopedic specialist, who
conducted MRIs and prescribed physical therapy.[35]
II.
DEFENDANT'S MOTION TO STRIKE
Plaintiff
submitted the affidavit of Dexter Morris in support of her
response to defendant's motion for summary
judgment.[36] Her attorney had contracted with Mr.
Morris for the purpose of “conduct[ing] an
investigation into this matter and assist[ing] in providing
an opinion on the theory of the case.”[37] Morris
interviewed an unspecified number of Wal-Mart employees, and
visited “several different [but also an unspecified
number of] Wal-Mart stores.”[38] He also reviewed
surveillance video, photographs, plaintiff's deposition
testimony, and the affidavits of other
witnesses.[39]
Morris
says he “learned that [Wal-Mart] employees are not
trained on wiping down the freezer doors and that water is
typically observed accumulating on the floor under the cooler
door.”[40] When reviewing the surveillance video,
he “noticed that no one came down the aisle near the
Plaintiff's fall with anything that would have caused a
wet substance to spill or drip on the floor nearly an hour
before Plaintiff's fall.”[41]He also noticed
“several Wal-Mart employees walk past the freezer
cooler near the location of the fall and did not notice
anyone open the freezer door or check the floor for any
residual condensation that may have slid [sic] to
the floor.”[42]
During
his visits to other Wal-Mart stores, Morris noticed
“the freezer coolers near the aisle where Plaintiff
fell all had varying levels of condensation on the
door.”[43] He “inspected each of the doorways
and noticed that a significant amount of water had
accumulated at the bottom of the door, which caused a slow
drip onto the floor.”[44] He also observed during his
store visits that “a few of the coolers had a two to
four-inch puddle of water near the base of the freezer,
” and he stated: “Based upon my height level, it
did not appear that any substance was on the floor, however,
when I kneeled down to touch the floor, I could see and feel
the puddle of water.”[45]
Based
upon such considerations, Morris tendered the following
opinions:
9. In this case, based upon how small the puddle was, the
proximity to the freezer and the clear color of the puddle,
it is my opinion that the wet substance that Plaintiff
slipped on came from drips of water from condensation on the
freezer cooler.
10. From my review of the evidence and interviews with store
managers and employees, it is my opinion that the Wal-Mart
employees charged with inspecting the freezer coolers in the
Huntsville store, in this case, failed to complete a thorough
inspection, which allowed the water to accumulate near the
floor of the freezer that caused Plaintiff to slip and fall.
Doc. no. 28-2 (Affidavit of Dexter Morris), ¶¶
9-10.
The
parties dispute whether Morris should be considered a lay or
expert witness, [46] but that distinction is not relevant,
because plaintiff did not disclose Morris as a witness of any
sort before submitting his affidavit in support of her
response to defendant's motion for summary judgment.
Plaintiff's attorney does not deny that she failed to
disclose Morris as an expert witness before the Scheduling
Order deadline.[47]She also does not deny that she failed to
disclose him as a fact witness. Instead, she argues that this
court should excuse her failures.
First,
counsel asserts that she did not initially plan for Morris to
serve as a witness, but only as an investigator whose purpose
was to assist her “due diligence in investigating the
veracity of Plaintiff's claim . . .
.”[48] Morris may have started out as
“just” a pre-complaint investigator, but he
became a witness when plaintiff offered his affidavit as
evidence in opposition to defendant's motion for summary
judgment. If plaintiff desired the privilege of using
Morris's testimony for that or any other purpose, she
should have disclosed him as a potential witness at some
point prior to the close of discovery.
Plaintiff's
counsel also attempts to excuse her failure to file the
initial disclosures required by Federal Rule of Civil
Procedure 26(a)(1)(A) by asserting that plaintiff “was
the only witness identified at that time and all medical
documentation had previously been provided to Defendant's
client.”[49] Plaintiff cannot choose to opt out of
the discovery requirements of the Federal Rules just because
she thinks there is no point, or that defendant has received
the required information by other means. She violated,
without excuse, Rule 26's requirement to disclose
“the name . . . of each individual likely to have
discoverable information . . . that [she] may use to support
[her] claims or defenses.” Fed.R.Civ.P. 26(a)(1)(A)(i)
(alterations and ellipses supplied). Counsel also failed to
supplement her disclosures pursuant to Federal Rule of Civil
Procedure 26(e), after she realized she would be relying upon
additional witness testimony.
Plaintiff
also did not disclose Morris in response to defendant's
interrogatory requesting her to identify “any witness
who has knowledge of the incident or claims made the
basis of this suit . . . .” Doc. no. 29-1
(Defendant's First Interrogatories to Plaintiff), ¶
6 (emphasis supplied). Plaintiff's counsel attempts to
excuse that failure by asserting that Morris was not a
“witness to the incident.”[50] Morris may
not have been an eye-witness, but he does purport to
have knowledge of the incident and/or of plaintiff's
claims. Plaintiff cannot reasonably believe that defendant
was only asking her to identify eye-witnesses and expert
witnesses, or that she would be allowed to present a new
witness after discovery had been completed, at which point
defendant would have no opportunity to depose the witness or
offer any counter testimony.
Finally,
plaintiff acknowledges that she failed to file a final
witness list in accordance with this court's Scheduling
Order, and that she, therefore, did not list Morris or any
other witness. She asks the court to excuse that failure
because her “attorney confused the scheduling order and
the report of the parties[, ] operating under the impression
that the final list was due fifteen days before the trial
date.”[51]The court might be willing to overlook
counsel's misunderstanding of the Scheduling Order
deadlines, if plaintiff had made any effort to disclose
Morris as a witness at any point prior to the deadline for
filing final lists, but she did not. She also did not make
any attempt to file a final list after the
Scheduling Order deadline, despite now being clearly aware of
her previous failures.
Because
plaintiff failed to disclose Dexter Morris as either an
expert or lay witness (i) in her initial
disclosures, (ii) in response to defendant's
interrogatories, (iii) in her final witness list, or
(iv) at any other time prior to filing a brief in
response to defendant's motion for summary judgment, she
is not entitled to the benefit of Morris's testimony.
Morris's affidavit will be stricken, and plaintiff will
not be permitted to use his testimony for any purpose.
III.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Federal
Rule of Civil Procedure 56 provides that a 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). In other words, summary judgment is proper
“after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “In making this
determination, the court must review all evidence and make
all reasonable inferences in favor of the party opposing
summary judgment.” Chapman v. AI Transport,
229 F.3d 1012, 1023 (11th Cir. 2000) (en banc)
(quoting Haves v. City of Miami, 52 F.3d 918, 921
(11th Cir. 1995)). Inferences in favor of the non-moving
party are not unqualified, however. “[A]n inference is
not reasonable if it is only a guess or a possibility, for
such an inference is not based on the evidence, but is pure
conjecture and speculation.” Daniels v. Twin Oaks
Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983)
(alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat
summary judgment unless that factual dispute is
material to an issue affecting the outcome of the
case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material
fact does not exist unless there is sufficient evidence
favoring the nonmoving party for a reasonable jury to return
a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves,
52 F.3d at 921) (emphasis and alteration supplied). See
also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986) (asking “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so ...