United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS Senior United States District Judge.
slip-and-fall case was filed by Plaintiff Ebony Lawson
against Defendant Wal-Mart Stores, East, L.P.
(“Wal-Mart”). The Complaint (doc. 1-4) sets out one
count for negligence and one count for wantonness. (See
Id. at 2-4).
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.
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
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.
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).
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.
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).
STATEMENT OF FACTS
Lawson,  age 30, has a college education and lives
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.
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.
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.
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 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.
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.
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
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.
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
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.” However, she “did [not] see any wet
suff.” (Doc. 20 at 28:88). 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). She did not look down at the
floor once she entered the checkout aisle. (See Id.
at 29:90, 92).
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.
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). She did not slip or slide.
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. 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). 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. 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
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.
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.
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.
Q: So muddy color I'm thinking as dark brown.
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).
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.
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. 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). 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. 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.
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
Wal-Mart Will Not Be Granted Summary Judgment on 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
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
Premises-Liability Standard: Under Alabama Law,
the “Open 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
[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).
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).
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