Cook v. Wal–mart Stores Inc.

• Decision Date: 16 June 2011
• Docket Number: Case No. 1:10–CV–574–WKW.
• Citation: 795 F.Supp.2d 1269
• Parties: Karen COOK, Plaintiff,v.WAL–MART STORES, INC., Defendant.
• Court: U.S. District Court — Middle District of Alabama

795 F.Supp.2d 1269

Karen COOK, Plaintiff,

v.WAL–MART STORES, INC., Defendant.

Case No. 1:10–CV–574–WKW.

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

June 16, 2011.

Joseph Earl Sawyer, Jr., J.E. Sawyer, Jr., Attorney at Law, Enterprise, AL, for Plaintiff.Ahnri Leronne Riddick–Seals, Carr Allison Pugh Howard Oliver & Sisson, Birmingham, AL, Chad Christopher Marchand, David Kirby Howard, Jr., Wilbur Pemble Delashmet, Delashmet & Marchand, P.C., Mobile, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

W. KEITH WATKINS, Chief Judge.

The setting of one of Gary Larson's The Far Side comics is a vast expanse of ice, presumably in Antarctica, where a prone penguin looks upon the cause of its proneness: a very, very unfortunately placed banana peel. Unlike most banana peel comics and cartoons, the hilarity of Mr. Larson's sketch is not in the slapstick acrobatics of the slip or the often-accompanying high-pitched sound effect. Rather, Mr. Larson's humor is directed at the absurdity of the situation. How did a banana peel find its way to Antarctica? How on earth (Antarctica, specifically) did the unfortunate penguin not see the dark shape of the rotting peel against the flat, barren, white surface? Or perhaps the sketch invoked the quasi-scientific principle known as Murphy's Law. In other words, the banana peel was there, so something was bound to slip on it.

In this case, the banana was there, in the vast expanse of the Wal–Mart parking lot, and Plaintiff slipped on it. She filed a Complaint (Doc. # 1, Attach. 4), and Defendant Wal–Mart Stores East, L.P. (“Wal–Mart”) removed the case to this court (Doc. # 1). Now pending is Wal–Mart's Motion for Summary Judgment, which is accompanied by a brief and evidentiary submissions. (Docs. # 13–14.) Plaintiff filed a response in opposition. (Doc. # 18.) Upon careful consideration of counsels' arguments, the relevant law, and the record as a whole, the court finds that Wal–Mart's motion is due to be denied.

I. JURISDICTION AND VENUE

The court exercises subject matter jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441(a). The parties do not contest personal jurisdiction or venue, and the court finds adequate allegations in support of both.

II. STANDARD OF REVIEW

“Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir.2007) ( per curiam ) (citation and internal quotation marks omitted); see Fed.R.Civ.P. 56(a) (“The court shall grant summary judgment if the movant shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.”).

The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322–24, 106 S.Ct. 2548.

If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its claims for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); Fed.R.Civ.P. 56(c). What is material is determined by the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Lofton v. Sec'y of the Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir.2004) (“Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment.”). Furthermore, “[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003) ( per curiam ) (citation and internal quotation marks omitted).

A genuine issue of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact- finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir.2001). However, if the evidence on which the nonmoving party relies “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 242, 106 S.Ct. 2505 (citations omitted). “Speculation does not create a genuine issue of fact....” Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir.2005) (emphasis in original). Likewise, “[a] mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment[,]” Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.2004), and the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine issue of material fact and do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir.1997) ( per curiam ) (A plaintiff's “conclusory assertions ... in the absence of supporting evidence, are insufficient to withstand summary judgment.”).

Hence, when a nonmovant fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to his case and on which the nonmovant will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (“[F]ailure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.”).

Thus, in cases where the evidence before the court is admissible on its face or can be reduced to admissible form and indicates there is no genuine issue of material fact, and where the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex Corp., 477 U.S. at 323–24, 106 S.Ct. 2548 (summary judgment appropriate where pleadings, evidentiary materials and affidavits before the court show there is no genuine issue as to a requisite material fact).

On summary judgment, the facts must be viewed in the light most favorable to the non-movant. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.2002). Hence, “ ‘facts, as accepted at the summary judgment stage of the proceedings, may not be the actual facts of the case.’ ” Id. (quoting Priester v. City of Riviera Beach, 208 F.3d 919, 925 n. 3 (11th Cir.2000)).

III. BACKGROUND

The submitted evidence, construed in the light most favorable to Plaintiff, establishes the following facts.

Plaintiff had just purchased some office supplies from the Enterprise, Alabama Wal–Mart in the late afternoon of July 9, 2008. (Cook Dep. 7–8, 11 (Doc. # 14, Ex. A).) After placing her purchases in her vehicle, Plaintiff acted as many shoppers do not. She courteously chose to push her empty shopping cart over to the cart corral, rather than abandon it in the middle of the parking lot and allow it to become a hazard and impediment to other shoppers. No good deed goes unpunished. Ironically, Plaintiff's courtesy caused her a cruel twist of fate, among other twists, when she encountered someone else's discourtesy on her trek back to her car: the subject banana. Like the unlucky penguin, Plaintiff found herself on the pavement, injured.

IV. DISCUSSION

“The duty owed to an invitee by [a business] is the exercise of ordinary and reasonable care to keep the premises in a reasonably safe condition.” Lilya v. Greater Gulf State Fair, Inc., 855 So.2d 1049, 1054 (Ala.2003) (internal quotations marks, brackets and citations omitted). As the Alabama Supreme Court has reiterated, “ ‘[t]he storekeeper is not an insurer of the customers' safety but is liable for injury only in the event he negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition.’ ” Dolgencorp, Inc. v. Hall, 890 So.2d 98, 101 (Ala.2003) (quoting Cash v. Winn–Dixie of Montgomery, Inc., 418 So.2d 874, 876 (Ala.1982)). For negligence to attach, the business must have “had or should have had notice of the defect before the time of the accident.” Hale v. Sequoyah Caverns & Campgrounds, Inc., 612 So.2d 1162, 1164 (Ala.1992) (citation omitted). This is so because “ ‘[t]he entire basis of a [business's] liability rests upon [its] superior knowledge of the danger which causes the [customer's] injuries.” Fowler v. CEC Entm't, 921 So.2d 428, 432–33 (Ala.Civ.App.2005) (quoting Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194 (Ala.2002)). If the business (or one of its employees) creates the dangerous condition, then the business is deemed to have actual notice of it. Nelson v. Delchamps, Inc., 699 So.2d 1259, 1261 (Ala.Civ.App.1997). If, as in this case, there is no evidence that the business has created the dangerous condition, notice can be proved by showing “(1) that the substance slipped upon had been on the [parking lot] a sufficient length of time to impute constructive notice ...; or (2) that [the business] had actual notice that the substance was on the ...