United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE
Susan and Gerald Guy filed a three-count complaint alleging:
(1) negligence; (2) wantonness; and (3) loss of consortium in
the Circuit Court of Mobile County, Alabama. (Doc. 1-1, p.
2-3). They allege that on July 15, 2016, Susan was seriously
injured when she slipped and fell in a puddle of water in the
Dairy Department in the Saraland, Alabama Walmart. (Doc. 1-1,
p. 2). Defendant Wal-Mart Stores East, LP, removed the action
on basis of diversity jurisdiction.
action is now before the Court on Walmart's motion for
summary judgment and brief in support, the Guys'
response, Walmart's reply, and Walmart's motion to
strike, the Guys' response, and Walmart's reply
(docs. 50, 52, 55, 56, 57, 58). Upon consideration and for
the reasons set forth herein the motion for summary judgment
is DENIED in part and GRANTED in part and the motion to
strike is DENIED.
Findings of Fact.
15, 2016, Susan Guy slipped and fell in water from a leaking
skylight at the Walmart store in Saraland, Alabama.
Previously, on February 15, 2016, there was a thunderstorm
with wind and hail in Saraland, Alabama. (Doc. 52-2, p.
On March 17, 2016, there was another thunderstorm with wind
and hail. (Id., p. 33). At that time, Walmart had a
“Master Services Agreement” with RL Bishop &
Associates, Inc. to perform repairs and maintenance for the
roof and skylights. (Doc. 50-7, p. 8-9). The roof area is
201, 363 square feet (plus or minus). (Doc. 50-8, Advanced
Roof Management report). There are approximately 220
skylights. (Doc 52-5, p. 4, RL Bishop president, Tyler
Bishop, deposition excerpt).
April 13, 2016, RL Bishop repaired three “holes”
over housewares, electronics, and flowers, respectively.
(Doc. 52-5, p. 9); Doc. 52-9, p. 4, RL Bishop Claim Fact
Form). On April 18, 2016, RL Bishop again repaired a
“hole” in the roof at “housewares”,
an “open lap found by a skylight in flowers” and
reported that “sporting goods had a leaking pipe”
which a plumber should “take a look at.” (Doc
52-5, p. 9; Doc. 52-9, p. 5). Walmart had reported a skylight
leak, but the RL Bishop technician determined the skylight
was not leaking. (Id.)
2016, RL Bishop employees covered a leaking skylight above
the toy department and repaired an “open lap”
over the tire and lube department. (Doc. 50-6, p. 3-4; Doc.
52-9, p. 5). RL Bishop's employees also found five other
damaged skylights in general merchandise. (Doc. 50-6, p. 4,
6; (Doc. 52-9, p. 5). They were replaced in late July 2016.
(Doc. 50-6, p. 6).
15, 2016 before 3:00 p.m., Susan Guy entered the Walmart to
shop for groceries. (Doc. 50-2, p. 4). Susan testified that
the weather was “storming” that day.
(Id.). The rain continued after she went into the
store. (Doc. 50-2, p. 7-8) Susan “had gotten close to
the back of the store” and “went around the
corner, back towards where the - - the milk and eggs”
were. (Id., p. 8). “As soon as [she] came
around the corner, [she] found [her]self in the floor.”
(Id.) When asked what caused her to slip, Susan
testified: “What I understand caused me to slip is that
I did not see water, the water that was in the floor.”
(Id., p. 11). Susan knew it was water because she
“fell in it” and her clothes were “soaking
wet.” (Id., p. 11-12.) She described the water
as “just a little, round puddle”, that was
“maybe as big as a small tub.” (Id., p.
12). She didn't know whether “it was whole bunch of
puddles or just a little one” because she was on the
floor the first time she saw the water. (Id., p.
13). She did not see any cart tracks or footprints in the
puddle and did not know how long the water had been on the
floor. (Id., p. 13-14)
deposition, Susan testified that two female Caucasian
employees “came to [her] right away” after the
fall. (Doc. 50-2, p. 15). She did not recall their names
(Id.) She knew they were Walmart employees
“[b]ecause they had their tags on.”
(Id., p. 16). She did not know their respective
positions at Walmart, but one lady had a radio.
(Id., p. 21)
also testified that one of these ladies said to her
“I'm so sorry you got hurt. Those darn skylights
leak every time it rains.” (Doc. 50-2, p. 6-7) Susan
described this lady as white, about five feet four inches
tall, “heavyset”, with short hair (Id.,
p. 16-17). Susan could not remember the color of her hair or
whether she wore glasses and could not guess her age
(Id., p. 17-18). Susan testified that the other lady
was white, “about the same height” as the first
lady, but “thinner” with short, “maybe
blondish” hair. (Id., p. 19-20). Susan could
not guess her age (Id., p. 20). Susan testified that
the second lady was “the one that got the
manager” and asked if “she needed to call an
ambulance” (Id., p. 20)
response to the motion for summary judgment, the Guys assert
that the Walmart employee who made the statement,
“I'm so sorry you got hurt. Those darn skylights
leak every time it rains” was a “uniformed
Walmart employee (young African-American female)”
identified as Destani Yates (Doc. 52, p. 1-2; Doc.
Yates signed an affidavit that she made this statement to
Susan. (Doc. 57, p. 4-5). The Guys state that two weeks after
Susan's deposition, her counsel sent an email to inform
Walmart's counsel of Susan's mistaken testimony as to
the race of one of the employees. (Id., p. 7). The
Guys also state that their preservation of evidence letter,
sent two weeks after the fall, “provides a clear
description of the employees.”
the deposition testimony of Department Manager Ginger Donald,
the Guys assertthat “Destiny” was the
associate who informed Donald about Susan's fall. (Doc.
52, p. 3). She described “Destiny” as “a
slender black young lady . . . in her twenties” (Doc.
52-4, p. 4).
Yarborough, Jr. was the Saraland Walmart's assistant
manager at the time Susan fell. (Doc. 50-3, Yarborough
Deposition). He responded to the call on his radio.
(Id., p. 4). Yarborough saw the water on the floor
and deduced that it came from the skylight above where Susan
fell (Id., p. 8-9). In accordance with Walmart's
policy, Yarborough prepared a report, which stated that the
water on the floor “was due to the skylight above that
area that was leaking.” (Doc. 50-4, Statement).
Bishop employees arrived on July 16, 2016, they found the
leaking skylight over the dairy section. (Doc. 50-6, p. 10).
After reviewing photographs and work orders on the Saraland
Walmart, Bishop testified that between 2013 and July 15,
2016, RL Bishop had not received any reports of roof or
skylight leaks in the area where Susan fell. (Id.,
p. 17; p. 23). The RL Bishop employees also found damage to
twenty-eight skylights, located in other areas of the store,
but those skylights were not reported as leaking.
(Id., p. 18). RL Bishop noted that the damage
“appears to be from hail storm.” (Doc. 52-9, p.
relationship between Walmart and RL Bishop “goes back
to the 90s[.]” (Doc. 52-5, p. 3). When asked whether
“RL Bishop perform[ed] inspections of the roofs”,
I wouldn't say technically inspections just because, for
example, with skylights, like in this situation. If you took
the time to do a thorough inspection of each skylight, you
would have to take the thing off the curb, … look at
it in every detail and still may not observe any kind of
defects that might be causing the leak.
But as far as what we would do, would just, … do an
overall look-over skylight. (sic) If we see
something obvious, then, … obviously we would write it
up in those situations.
(Doc. 52-5, p. 3).
testified that there were approximately 220 skylights on the
Saraland Walmart. (Doc 52-5, p. 4). Prior to 2010, if RL
Bishop received a work order, its employees would make a
“visual inspection of the 200 plus skylights” as
part of an “eight-point inspection.”
(Id., p. 3-4). During that time, RL Bishop
“did more of an observation of the general condition of
the roof whenever - - any time that [it was] dispatched and
… on site to do any kind of service work.”
(Id.). RL Bishop employees “would have
routinely … inspected or made a visual
inspection” of all the skylights. (Id.).
Bishop confirmed the eight-point inspection began when the
company “first started doing maintenance to Walmart,
and that was something that [Walmart] kind of … wanted
us to do. And we continued to do that up until probably
somewhere around the late 2000's.” (Id.)
“somewhere around 2010”, RL Bishop was
“approached to discontinue spending the extra time to
do more of those observations and stick mainly to the actual
problem, do the specifically reported, whatever it may
be.” (Doc. 52-5, p. 4). From that point, if there was a
service call regarding the skylights, RL Bishop employees
… would only really look at the skylights. If there
was something obviously wrong with multiple one.
(sic) If there were say the one single one leaking
and it wasn't any indications of any kind of storm
damage, hail damage, something like that, probably
wouldn't inspect any of the other skylights.
If they happen to be walking by and see it, you know, on the
way back to the ladder access or something like, they might
would write it up too. But for the most part, they
wouldn't inspect any further unless there was an obvious
sign that something major might have happened.
(Doc. 52-4, p. 4).
testified that even though the contract with Walmart did not
require RL Bishop employees to “go and look for other
skylight problems “ while on the roof for a service
call, the employees would still do so, and report the
problems to Walmart, because this was “good” for
business. (Doc. 50-6, p. 19) Bishop testified that the
employees were trained that in “certain
situations” as “where it was obvious that some
kind of problem came through and maybe hail damage, or
something like that” they would “100 percent
definitely go around and check each skylight and try to make
sure that they don't see any more of this damage.”
(Id., p. 19-20). He also agreed that “even if
it's not hail damage, if they find a damaged skylight and
as they're walking around they see other damage, they
report that too.” (Id., p. 19-20).
Bishop completed the Claim Facts Form for the incident
involving Susan, it described the roof conditions as follows:
Fair condition. In need of occasional maintenance. High foot
traffic roof system subject to physical abuse including but
not limited to punctures, scoring, cuts, etc. Also subject to
cold welds (a.k.a open laps or open seams) due to improper
installation of the roof membrane during original
(Doc. 52-9, p. 1).
Bishop explained the work performed after Susan's fall as
On July 15, 2016, after the loss occurred, RL Bishop &
Assoc. Inc. technician found a broken skylight over the
reported loss location in Dairy, believed to be the cause of
the leak. The exact cause of skylight damage is unknown,
although it appears to be subject to storm damage (along with
28 other skylights) caused by hail on an unknown date. RL
Bishop & Assoc., Inc. is not responsible for damage
caused to the skylights.
(Doc. 52-9, p. 2).
corporate representative Ben Cole testified that Walmart does
not have a rule or “routine time frame” for roof
or skylight inspections. (Doc. 50-7, p. 11). Cole testified
that a store can request an inspection. (Id., p. 2).
Cole did not know about RL Bishop's eight-point
inspections that stopped in 2011. (Id., p. 10).
testified that Walmart has a reactive and proactive method
for maintaining the skylights and roofs. (Doc. 50-7, p. 2-3).
“Reactive maintenance” or reactive work orders
mean that “a contractor is sent to work on . . . the
roof” or something else, such as an air conditioner,
when a problem is reported. (Id., p. 3, 8). Cole
testified that “whenever any reactive maintenance is
done on the roof, the contractor also inspects to see if they
can find any other deficiencies on the roof, and then notify
Walmart what they found.” (Id., p. 3). Cole
testified that Walmart is “under the assumption”
that whenever RL Bishop employees are on the roof for a
reactive work order, they are inspecting the entire roof.
(Doc. 52-8, p. 33-34).
also has a “proactive roofing team that yearly looks at
ages of roofs” and the “number of work orders and
the dollar amount of those work orders to determine does the
roof need to be inspected.” (Doc. 50-7, p. 2). If so,
Walmart will “send out a third-party consultant to
inspect the roof.” (Id., p. 2-3). Cole
testified that “there's enough reactive maintenance
on the roof that there's inspections all the time, and
all of those are a result of a work order. Then that's
what feeds the proactive team, and that's one of the
inputs to the proactive team to determine if [Walmart] needs
to send out an inspector.” (Id., p. 11).
Saraland Walmart's original roof was recovered in 2007
with a “15-year” roof. (Doc. 50-7, p. 6, Doc.
50-8, p. 3). The last third-party inspection was performed in
September 2012 by Advanced Roof Management. (Doc. 50-8). In
conclusion, the inspector found as follows:
The original roof system was recovered in 2007. This
approximately 5-year old, Firestone mechanically fastened,
TPO roof system is in good overall condition at this time
with no sign of field membrane or seam failure. The majority
of field membrane, flashings, and seams appear intact and
watertight. The overall installation is of fair/good quality.
The rooftop units and skylights are in good condition overall
with safety grids installed at all skylights. The
gutter/downspout assemblies are in good condition overall.
According to assistant store manager Sean, no leaks have been
reported or are active at this time.
The remainder of the rooftop inspection found other minor
deficiencies all of which are listed in the Roof Condition
Checklist section of this report. Overall, the majority of
the roof assembly was properly installed and is in good
condition at this time. With the completion of the
recommended repair listed ...