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

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

August 9, 2019

EBONY LAWSON, Plaintiff,


          VIRGINIA EMERSON HOPKINS Senior United States District Judge.

         This slip-and-fall case was filed by Plaintiff Ebony Lawson against Defendant Wal-Mart Stores, East, L.P. (“Wal-Mart”).[1] The Complaint (doc. 1-4) sets out one count for negligence and one count for wantonness. (See Id. at 2-4).

         Before the Court is Wal-Mart's Motion for Summary Judgment (doc. 20) (the “Motion”) filed on November 26, 2018. Ms. Lawson filed her opposition (doc. 25) to the Motion on February 26, 2019. Wal-Mart then filed its reply brief (doc. 27) in support of the Motion on March 12, 2019. Accordingly, the Motion is ripe for review. For the reasons stated in this opinion, the Motion is due to be GRANTED IN PART and otherwise DENIED.

         I. STANDARD

         Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (internal quotation marks and citation omitted)). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits-or by the depositions, answers to interrogatories, and admissions on file-it must designate specific facts showing that there is a genuine issue for trial. Id.

         The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman v. Al Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.

         How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact-that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce “significant, probative evidence demonstrating the existence of a triable issue of fact.” Id. (emphasis added) (citation omitted).

         For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.


         On November 26, 2018, Wal-Mart filed the Motion. (Doc. 20). On November 29, 2018, this case was referred to mediation, and the action was stayed. (See doc. 21). On February 5, 2019, the stay was lifted because the mediation failed. (See doc. 23). On February 26, 2019, Ms. Lawson filed two documents: (1) her Rule 56(d) Motion Requesting Additional Discovery (doc. 24) (the “Motion To Reopen Discovery”), in which she moved the Court to deny the Motion or defer ruling on it until after discovery was reopened and additional discovery was completed; and (2) her opposition to the Motion. (Doc. 25). On March 4, 2019, the Court denied the Motion To Reopen Discovery. (See doc. 26). On March 12, 2019, Wal-Mart filed its reply brief in support of the Motion. (Doc. 27).


         Ms. Lawson, [3] age 30, has a college education and lives in Adamsville.

         Her employment history includes working at Taco Bell off and on for three years. Her work at Taco Bell included safety training to ensure the floors were safe for customers and employees and free of spills and hazards. The training and employment included checking the condiments at Taco Bell to make certain there were no spills or hazards on the floor. Her employment history included standing guard over a spill until it could be cleaned, or cleaning it up herself if it was small enough.

         Ms. Lawson additionally worked at Lowe's for approximately one and a half years, which included computer-based learning on safety and monitoring of the floors in the store. She conceded that one of her main job duties as a sales associate at Lowe's was safety of the store, including the monitoring and cleaning of the floors.

         Prior to the incident, Ms. Lawson shopped at the Adamsville Wal-Mart store every two weeks. She had shopped at that particular Wal-Mart store many times.

         Ms. Lawson went to Wal-Mart on Sunday, August 28, 2016, at approximately 3:45 p.m. to shop for groceries. She has good vision, and the store was well-lit on that day. She admittedly had no problem seeing as she walked around the store in flip flops shopping for groceries. She shopped in the store for around one hour prior to the time she slipped. She did not see any problems in the store while she shopped for that hour. She did not see anything on the floor while shopping.

         Her shopping cart was full at the time she walked toward the front checkout aisles. She had several cases of water on the rack under the bottom of the shopping cart. The cases of water were wrapped in plastic, and she did not see any problems with the water and did not see any leaks coming from the water bottles.

         When asked whether the store was busy on a Sunday afternoon the week before Labor Day, Ms. Lawson testified it was “so-so.” However, she was directed from one checkout aisle to another aisle which was not as busy by Rebecca, a Wal-Mart associate. Ms. Lawson testified that “for the most part, ” she has only seen Wal-Mart associates directing customers to checkout aisles which are less crowded around the holidays.

         The checkout aisles are located across the middle part of the front of the store. Ms. Lawson walked to the main aisle at the front of the store, which is marked as Aisle A on Exhibit 1.[4] She testified that Rebecca, who was between the fifth and tenth checkout aisles, directed her from checkout aisle 5 to checkout aisle 10 because it was less busy. Ms. Lawson had no problem being directed to a different checkout aisle by Rebecca and admitted it was helpful to her. She did not think Rebecca was directing her into any danger, and she has no evidence that Rebecca knew there was anything on the floor at the checkout area to which she was directed.

         Ms. Lawson walked to the tenth checkout aisle and turned to the right onto that aisle from Aisle A. The checkout aisle is approximately 20 feet long and five feet wide. There was no one in line at that checkout aisle. The checkout aisle looked similar to the photograph attached as Exhibit 2.[5]

         Ms. Lawson was six to eight feet on Aisle A from the entrance to the checkout aisle at the time she turned right from Aisle A. The merchandise in her cart was not above the height of her shopping cart itself, and she conceded she was able to see clearly. According to Ms. Lawson, while she was still on Aisle A, she noticed the floor on the checkout aisle she was about to walk down had footprints and it appeared to her “like people tracking the bottom of their shoes.”[6] However, she “did [not] see any wet suff.” (Doc. 20 at 28:88).[7] Further, she “[d]id [not] see any kind of tracking that put [her] on notice that there was a problem with the floor.” (Id.) (emphasis added).[8] She did not look down at the floor once she entered the checkout aisle. (See Id. at 29:90, 92).[9]

         She walked down that checkout aisle to the area between the credit card reader and the back of the cash register. She then walked to the right side of her cart to place her merchandise on the conveyor belt. She did not slip or slide from the time she entered the checkout aisle to the time she placed her groceries on the belt.

         Ms. Lawson told the cashier she had forgotten to get salad dressing and testified that the cashier told her to get it while the cashier finished ringing up her merchandise. She then walked across the same area of the floor she had previously walked over when she had moved her items from her shopping cart onto the belt. She “[does] [not] have an independent memory of looking down at the floor.” (Doc. 20 at 30:95).[10] She did not slip or slide.

         Ms. Lawson got the salad dressing and some cupcakes and walked over the same area from the grocery section of the store down Aisle A to her checkout aisle. She was in the same location six to eight feet on Aisle A when she once again turned to the right to walk down the checkout aisle. She does not recall looking down at the floor when she turned onto the checkout aisle from Aisle A.[11] She testified that, “as well as [she] can remember, ” “[w]hen [she] got back to aisle ten, . . . [her] [shopping] cart . . . [had been] pushed up . . . [m]aybe five additional feet.” (Doc. 20 at 31:99).[12] The cashier was still busy ringing up some of her items when she turned onto the checkout aisle. Because some of her groceries were still on the conveyor belt, she began to walk forward to place her salad dressing at the end of the belt. Ms. Lawson is not certain whether she was next to the handle of her shopping cart when she slipped and fell while walking toward the end of the conveyor belt. She landed on the floor in the position and area indicated by a stick figure on Exhibit 1.[13] While lying on the floor immediately after the fall, she felt that her clothes were wet and that she was lying in a liquid substance, and this was the first time she noticed any liquid on the floor. She did not see any liquid on the floor prior to the time she slipped.

         While Ms. Lawson was still on the floor, Wal-Mart employees began to inspect items remaining in her shopping cart and immediately handed her a form to be filled out concerning the slip and fall accident. She attempted to comply with Wal- Mart's request, but she could not complete the form due to her being disoriented. Wal-Mart employees looked inside and underneath her shopping buggy, but they did not discover anything in the cart which was leaking liquid. While lying on the floor, Ms. Lawson did not see the source of the liquid.

         After the incident, Ms. Lawson testified that she had a wet substance on her clothes down the leg of her pants up to the right side of her hips and her hands had a substance on them that looked like dirty water. After she stood up, she saw a puddle on the floor that was “maybe two feet” long and one foot wide. She testified the puddle was “dirty, ” she could see “dirty footprints, ” and there were shopping cart tracks in the puddle. She does not know how many shopping cart tracks were on the floor and does not know whether some customer's cart had gone through the puddle other than her own shopping cart. She admits that because the checkout aisle is only five feet wide that there is almost no way her shopping cart could have missed traveling through the puddle at the time she pushed her cart down the checkout aisle.

         When asked what the substance looked like on Wal-Mart's white floor, she testified:

A: It looked clear like just - on the floor it looked like brown, just like somebody had just been walking through. You know, I guess it just looked like footprints.
Q: Kind of almost muddy in a way?
A: Kind of sort of but nothing different from, I guess, what you see on the floor here. You know, I guess it's a clean floor. I don't know, but yeah.
Q: Well, this is a clean floor but, you know, if - but it's white tile.
A: Right.
Q: So muddy color I'm thinking as dark brown.
A: Right.
Q: Is that what you were describing?
A: It was brownish.
Q: So what you saw in this one to two foot sized puddle is there was - there was a good bit of tracking -
A: Yes, tracking.
Q: - and where you see a number of footprints?
A: (Witness nods head).
Q: Yes?
A: Yes.

         Ms. Lawson admits that she would have walked through the puddle at the time she pushed her shopping cart down the checkout aisle. She did not see the source of the liquid on the floor. She does not remember the liquid being sticky. She did not see anyone spill anything on the floor and does not know the origin of the liquid. She does not know how the substance came to be on the floor, how long it had been on the floor or how long the checkout aisle had been in the condition it was in at the time she slipped. She has no information or evidence that the liquid had been reported to Wal-Mart prior to the time she slipped. She did not hear anyone say the liquid had been on the floor for hours or hear anyone say something similar about the length of time it was on the floor. She never heard anyone from Wal-Mart say that they determined the source of the liquid.

         Based on her job history, Ms. Lawson is aware that customers in stores can spill drinks. She testified that she believes the puddle was on the floor prior to the time she pushed her cart down the aisle and she simply failed to see it.[14] However, she also testified that “when [she] initially went up to the register, it's very possible that [her] [shopping] cart could have been over [the puddle] or the handle [of the cart] could have been over it.” (Doc. 20 at 37:123).[15] Based on her deposition testimony, Ms. Lawson concedes she would have been 18 feet from the puddle at the time she turned from Aisle A onto the checkout aisle. She admits that if she had looked down at the floor she could have seen the puddle from a distance of 10 feet.[16] She understands that if there is liquid on the floor it can present a hazard to anyone who walks in the liquid. If she had seen the puddle from a distance of 10 feet, she would not have stepped in it because she would have recognized it as a slip hazard.

         IV. ANALYSIS

         As stated earlier, the Complaint sets out one count for negligence and one count for wantonness. (See doc. 1-4 at 2-4). Wal-Mart seeks summary judgment on both claims. (See doc. 20 at 75). The Court finds that summary judgment should be denied on the negligence claim and granted on the wantonness claim. The Court will address the claims in turn.

         A. Wal-Mart Will Not Be Granted Summary Judgment on the Negligence Claim

         In the Motion, Wal-Mart presents only one argument why it should be granted summary judgment on Ms. Lawson's negligence claim: that the liquid puddle was “open and obvious.” (Doc. 20 at 75, 87-95). More specifically, Wal-Mart argues as follows: “the open and obvious nature of a ‘brownish' dirty puddle on a white floor that is two feet long and one foot wide, contains footprints and shopping cart tracks[, ] and can be seen from a distance of 10 feet negates any duty which otherwise may have been owed by Wal-Mart.” (Id. at 75).[17]

         To address this argument, the Court will first discuss the premises-liability standard on which its analysis relies. The Court will then explain why the liquid puddle was not “open and obvious” and, thus, why Wal-Mart's argument fails.

         1. Premises-Liability Standard: Under Alabama Law, theOpen and Obvious” Defense Is an Affirmative Defense, and the Inquiry Is Whether an Objectively Reasonable Person in the Plaintiff's Circumstances Would Have Noticed and Appreciated the Dangerousness of the Hazard

         “In [a] premises-liability case, the elements of negligence are the same as those in any tort litigation: duty, breach of duty, cause in fact, proximate or legal cause, and damages.” Johnson v. Logan's Roadhouse, Inc., No. 14-2037, 2016 WL 4585927, at *3 (N.D. Ala. Sept. 2, 2016) (alteration in original) (quoting Sessions v. Nonnenmann, 842 So.2d 649, 651 (Ala. 2002)). “The duty of a premises owner to an injured person depends on the status of the injured person in relation to the owner's property.” Id. (citing Galaxy Cable, Inc. v. Dav is, 58 So.3d 93, 98 (Ala. 2010)). In this case, “[t]he parties agree that [Ms.] Lawson was an invitee of Wal-Mart.” (Doc. 25 at 13) (see also doc. 20 at 88).

         “[A] landowner owes an invitee the duty to keep the premises in a reasonably safe condition and, if the premises are unsafe, to warn of hidden defects and dangers that are known to the landowner but that are hidden or unknown to the invitee.” Johnson, 2016 WL 4585927, at *3 (alteration in original) (citing Galax y Cable, Inc., 58 So.3d at 98). “The entire basis of an invitor's liability rests upon [its] superior knowledge of the danger that causes the invitee's injuries. If that superior knowledge is lacking, as when the danger is obvious, the invitor cannot be held liable.” Id. (citing Sessions, 842 So.2d at 652).

         “It is well-settled that a wet floor inside a place of business . . . constitutes an unsafe condition for the business's customers.” Id. at *4 (citing Terrell v. Warehouse Groceries, 364 So.2d 675, 676 (Ala. 1978)). Accordingly, the owner of the premises normally would have a duty to warn invitees of the wet floor. However, “[t]he owner of [the] premises has no duty to warn an invitee of open and obvious defects in the premises which the invitee is aware of, or should be aware of, in the exercise of reasonable care on the invitee's part.” Id. (citing Dolgencorp, Inc. v. Taylor, 28 So.3d 737, 742 (Ala. 2009)). “In other words, proof of an open and obvious hazard negates an invitor's duty to warn an invitee of the hazard.” Id. (citing Sessions, 842 So.2d at 652). However, even though proof of an “open and obvious” hazard negates an invitor's duty, the invitee does not bear the burden of proof of proving that the hazard was not “open and obvious” and, thus, that the invitor owed her a duty of care; instead, “[the] argument that the [hazard] . . . was open and obvious is an affirmative defense, for which [the invitor] bears the ultimate burden of proof.” Dolgencorp, Inc., 28 So.3d at 742 (explaining that there ...

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