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Guy v. Wal-Mart Stores East, LP

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

November 6, 2019

SUSAN GUY AND GERALD GUY, Plaintiffs,
v.
WAL-MART STORES EAST, LP, [1] Defendant,

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiffs 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.

         This 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.

         I. Findings of Fact.[2]

         On July 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. 33).[3] On March 17, 2016, there was another thunderstorm with wind and hail. (Id., p. 33).[4] 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).[5] 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).

         On 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.)[6]

         In June 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).

         On July 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)

         At 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)

         Susan 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)

         In 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. 57).[7] 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.” (Id.)[8]

         Citing the deposition testimony of Department Manager Ginger Donald, the Guys assert[9]that “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).

         Donald 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).

         When RL 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. 6).[10]

         The 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”, Bishop, answered:

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).

         Bishop 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.)

         Then, “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).

         Bishop 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).

         When RL 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 installation.

(Doc. 52-9, p. 1).

         RL Bishop explained the work performed after Susan's fall as follows:

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).

         Walmart's 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).

         Cole 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).

         Walmart 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).

         The 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 ...

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