Smith v. Wal-Mart Stores, Inc.

• Decision Date: 27 January 1999
• Docket Number: WAL-MART,No. 97-5313,97-5313
• Citation: 167 F.3d 286
• Parties: 14 NDLR P 132 Paul N. SMITH and Bernice Smith, Plaintiffs-Appellants, v.STORES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 286

167 F.3d 286

14 NDLR P 132

Paul N. SMITH and Bernice Smith, Plaintiffs-Appellants, v. WAL-MART STORES, INC., Defendant-Appellee.

No. 97-5313.

United States Court of Appeals,

Sixth Circuit.

Argued April 22, 1998.

Decided Jan. 27, 1999.

Roger W. Dickson (briefed), William P. Eiselstein (argued and briefed), Miller & Martin, Chattanooga, TN, Herbert A. Thornbury (briefed), Poole, Lawrence, Thornbury, Stanley & Morgan, Chattanooga, TN, for Plaintiffs-Appellants.

Robert W. Sawser (argued and briefed), Baker, Donelson, Bearman & Caldwell, Chattanooga, TN, for Defendant-Appellee.

Before: GUY, GILMAN, and GODBOLD ^*, Circuit Judges.

GODBOLD, J., delivered the opinion of the court, in which GILMAN, J., joined. GUY, J. (pp. 298-99), delivered a separate opinion concurring in part and dissenting in part.

GODBOLD, Circuit Judge.

Introductory

This diversity suit was filed by plaintiffs, residents of Georgia, in Tennessee state court against Wal-Mart Stores, Inc. to recover damages they suffered as a result of Mrs. Smith's fall in a bathroom ¹ of a Wal-Mart Store located in Fort Oglethorpe, Ga. Wal-Mart removed to the U.S. District Court, E.D. Tennessee. The parties agree that Georgia law controls. The district court granted summary judgment in favor of Wal-Mart on all of the plaintiffs' claims, and the Smiths brought this appeal. ²

I. Standard of Review

We review the district court's grant of summary judgment in favor of Wal-Mart and its subsequent order denying plaintiffs' motion pursuant to Fed.R.Civ.P. 59 and 60 to alter or amend the judgment, which together had the effect of dismissing the plaintiffs' lawsuit. Both of the district court's orders are subject to de novo review by this court, using the same standards applied by the district court. See Middleton v. Reynolds Metals Co., 963 F.2d 881, 882 (6th Cir.1992) (reviewing grant of summary judgment de novo); Columbia Gas Transmission, Corp. v. Limited Corp., 951 F.2d 110, 112 (6th Cir.1991) (applying de novo standard of review to Rule 59(e) motion seeking reconsideration of a grant of summary judgment).

Under Fed.R.Civ.P. 56(c) summary judgment is appropriate when there is no genuine issue of material fact for trial and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment all reasonable factual inferences must be drawn in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 842 (6th Cir.1997). Under de novo review, we draw our own inferences and legal conclusions from the record. Lancaster Glass Corp. v. Philips ECG, Inc., 835 F.2d 652, 658 (6th Cir.1987).

II. Plaintiffs' Claims

Plaintiffs allege these theories for recovery: (1) common law negligence of Wal-Mart under Georgia law for breach of its duty of care toward an invitee; (2) negligence per se under Georgia law based upon either or both of two alleged failures: (a) failure to comply with the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; and (b) failure to comply with the Fort Oglethorpe (Ga.) Building Code. ³

III. The Facts

As required in our review we resolve factual disputes in favor of the plaintiffs as non-moving parties and draw our own inferences from the record. The following facts appear.

Mrs. Smith, age 74, is disabled and, as a consequence of hip replacement, has required the assistance of a walker for some 10 years. On the day of her injury she and her husband entered the Wal-Mart store. He went elsewhere in the store to shop. She waited in the delicatessen, which is near the entrance. She felt the need to use the toilet. The district court stated that Mrs. Smith knew there was a handicapped-accessible restroom. To the contrary, the evidence before the court tends to show that she did not know of the handicapped-accessible bathroom. We are not referred to evidence in the record that supports the court's conclusion. In her video deposition taken November 9, 1995, p. 7, Mrs. Smith testified that she did not know there was another restroom at the rear of the store. At p. 14 she repeated that answer. In her husband's deposition taken October 10, 1996, p. 20, he testified that his wife was "never back there" [where the handicapped-accessible bathroom was located]. After the district court's decision granting summary judgment, plaintiffs' counsel filed an affidavit by Mrs. Smith in which she swore that she did not know there was a handicapped-accessible bathroom at the rear of the store, and if [in her deposition] she had said that there was such a bathroom it was because she was using a borrowed hearing aid which did not assist her hearing well and she did not understand what was asked. She thought that the question referred to her knowledge on the day of the deposition. The affidavit stated that she had reviewed her video deposition and the response given in it was correct. There is no clear contradiction. If there is, it presents an issue of fact to be determined by a fact-finder.

The district court held: "Mrs. Smith does not say that she could not have made it to the handicapped-accessible restroom in the rear of the store, or even to her own home. Rather, she says she chose to use this restroom because her husband was ready to leave. Therefore, the choice of restrooms was motivated by convenience, and not by any particular exigency or distraction." J.A. at 180. The court erred. Mrs. Smith's affidavit states that her need was such that she would not have made it to the restroom at the back of the store or to her own home. J.A. at 223. This was a disputed material issue of fact, and on consideration of summary judgment her statement had to be accepted as true.

Mrs. Smith went to the ladies' restroom located near the deli, and near the store entrance. It had in it one bathroom stall with its own door that swings inward. The bathroom did not meet handicapped-accessible standards of ADA because the stall was not wide enough to accommodate Mrs. Smith's walker and permit her to turn around within the stall. Also, there were no handrails ("grab bars") in the stall. Another bathroom is located on the same floor, near the layaway department at the rear of the store, some 140 yards from the front entrance. It meets handicapped-accessible standards of ADA. It would require a "pretty long time" for a person on a walker to go to the back of the store where the handicap-accessible bathroom is located. A maintenance employee had received complaints about the front bathroom not being handicapped-accessible and had told management about this. There were no signs at or near the front bathroom directing disabled users to the bathroom at the rear. Wal-Mart had received complaints from customers about the inaccessibility of the rear bathroom, and Wal-Mart was aware that disabled persons sometimes used the front bathroom. Mrs. Smith had used the front bathroom less than five times in the past without incident. An employee testified that every day he saw handicapped shoppers in the store, some in wheelchairs, others using walkers. With respect to comparative knowledge by Mrs. Smith and Wal-Mart of risks of the bathroom, an employee was asked to identify persons responsible for ADA compliance and risk management, and he responded that they were too numerous to name.

Mrs. Smith left her walker outside the stall and entered. She did not notice then, nor had she noticed when previously using the bathroom, that there were no grab bars. She did not anticipate that she would need something to hold on to, and therefore did not perceive any danger to herself from the lack of grab bars. While arising from the toilet Mrs. Smith lost her balance from an unknown cause and fell. She did not slip in any liquid or on any obstruction but simply lost her balance. Falling forward, she grabbed for support but found none. She tried to grab the toilet paper dispenser but it was loose. She grabbed for the door latch, but it was broken or missing. She fell forward, striking the stall door, which opened, and then she fell outwards against the outside wall facing the stall. The fall broke her neck, and she is now a quadriplegic confined to a nursing home.

Mrs. Smith's knowledge of the condition of the bathroom is a relevant issue. The district court found that she could apprehend its condition at a glance, and "[s]he did so, and chose to use the restroom regardless of its lack of handrails." J.A. at 177. These findings, however, involve disputed material facts. There is no evidence that Mrs. Smith could apprehend the conditions at a glance, that in fact she did so, and that in fact she chose to use the restroom regardless of its lack of handrails. These conclusions were not supported by evidence.

A central issue concerns the absence of handholds (grab bars) within the stall and the conformation of the stall--whether it was too narrow for plaintiff to enter with her walker and to move about within the stall with her walker. The district court held as a matter of law that the front bathroom was "indisputably safe," and that the evidence was "plain, palpable and indisputable" that there were no hazards. It also held as a matter of law that, in the front bathroom, the amount of space in the stall that made it impossible for plaintiff to utilize her walker, and the lack of grab bars, were not defects at all.

A finder of fact could conclude that a general merchandise store like Wal-Mart could anticipate use of the front bathroom by a full range of customers with a wide range of needs, including handicapped persons. A Wal-Mart employee testified that on the average he would see several handicapped persons a day shopping at the store. Handholds are a familiar appurtenance in public bathrooms, potentially useful to all users...