Do v. Wal-Mart Stores
| Decision Date | 23 December 1998 |
| Docket Number | No. 98-1621,WAL-MART,98-1621 |
| Citation | 162 F.3d 1010 |
| Parties | Rua DO; Chui Le, husband and wife, Appellants, v.STORES, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael J. Scott, Anoka, MN, argued (David L. Jensen, on the brief), for appellants.
Andrew L. Marshall, Minneapolis, MN, argued (Charles E. Lundberg, on the brief), for appellee.
Before BEAM, LAY, and LOKEN, Circuit Judges.
Chui Le slipped and fell in a customer aisle at Wal-Mart Stores, Inc.'s store in Eden Prairie, Minnesota. Chui Le and her husband Rua Do filed suit in Minnesota state court and the case was removed to federal district court by Wal-Mart. Following a hearing, the district court granted Wal-Mart's Motion for Summary Judgment, concluding Chui Le had failed to produce sufficient evidence to create a genuine issue of material fact. We reverse and remand for a plenary trial.
On October 22, 1993, Chui Le arrived at the Eden Prairie Wal-Mart at around 3:30 p.m. to shop. After she had been in the store a short while, she slipped and fell in the cosmetics area. Prior to the fall, Chui Le Assistant Manager Marcia Watson was one of the first persons to arrive at the scene of the accident. When she arrived, she saw Chui Le lying on her back in the center of the aisle. A bottle containing Naturessence Water Lily Pore Lotion Astringent ("Naturessence") was lying on the floor next to her. The bottle was a sixteen-ounce, clear plastic bottle with a cap containing a pump for dispensing the liquid. In the district court, for purposes of summary judgment, Wal-Mart did not contest that the substance on the floor was Naturessence and that it came from the bottle found next to Chui Le.
did not see any substance on the floor. After the fall, she felt some "greasy stuff" on her body and clothing. Chui Le then saw for the first time a puddle on the floor, approximately 12-18 inches in diameter, of the same transparent substance that was on her clothes.
Watson placed the bottle on a shelf and took a photograph of it. The picture showed that the cap was on the bottle and that the bottle was not damaged. Watson then threw the bottle away. She was the only person to ever see the bottle in question. Watson did not notice any cracks in the bottle or its cap, or anything else wrong with the bottle. Watson stated in her deposition that she could not remember whether the cap was on or off the bottle when she saw it lying on the floor next to Chui Le. However, the photograph taken by Watson shows the cap on the bottle.
Dennis Powell, an emergency paramedic who responded to the accident, stated "the liquid extended beyond [Le's] body all the way to the underside of the shelves...." Powell Aff. p 10. Andrew Rhode, a police officer called to the scene, stated the size of the spill was between one to two square feet. Officer Rhode also "traced the liquid on the floor back to a shelf where the liquid was dripping from one of the containers on the shelf onto the floor." Rhode Aff. p 4. 1
On the day of the accident, fifty-one Wal-Mart employees were on duty. Although an employee was required by Wal-Mart to be in the cosmetic department at all times, the employee assigned to cosmetics was not present at the time of the accident. Jeffrey Fricke, who was a stockman at the Eden Prairie Wal-Mart, stated that on previous occasions the pumps on products would arrive at the store in the up or open position. He also noticed that in the past some of the pumps on the bottles on the shelves were open, and that they were likely opened by customers who were sampling products.
Chui Le hired engineer Donn Peterson to perform tests using similar bottles containing Naturessence. 2 The tests used a pump cap that was identical to the one that was on the bottle involved in the accident. Peterson tried a number of different scenarios with the bottle and the pump cap.
After several tests, Peterson concluded that the bottle would leak substantially only if certain conditions were met. When the bottle was shaken vigorously for ten seconds, the plunger was depressed and released twice, and the bottle was laid on its side, a puddle 12 1/2 X 11 inches leaked out after 36 1/2 minutes, and after sixty minutes the puddle measured 18 1/2 X 12 1/2 inches. Peterson opined that it would take eighty-three minutes for the spill to reach 18 X 18 inches. Peterson acknowledged that the bottle would leak much more quickly than it did during his tests if the cap was taken off or if the bottle was broken.
We review a grant of summary judgment de novo. Grossman v. Dillard Dep't Stores, Inc., 47 F.3d 969, 971 (8th Cir.1995). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "We are required to view the evidence in the light most favorable to the nonmoving party and to give that party the benefit of all reasonable inferences." Grossman, 47 F.3d at 971. At the summary judgment stage, we may not weigh evidence or make credibility determinations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Supreme Court has instructed that courts must ask "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505.
Chui Le claims Wal-Mart was negligent in maintaining its store by allowing a pool of Naturessence to remain on the floor for a substantial period of time. In this diversity case, this court applies Minnesota law. Under Minnesota law, a store owner "is not an insurer of the safety of business invitees," but does owe a duty to business invitees "to keep and maintain [the] premises in a reasonably safe condition." Wolvert v. Gustafson, 275 Minn. 239, 146 N.W.2d 172, 173 (Minn.1966). To recover in a slip-and-fall case, the plaintiff must establish that the business operator "had actual knowledge of the defect causing the injury or that it had existed for a sufficient period of time to charge the operator with constructive notice of its presence." Id. A store owner is charged with constructive notice of a foreign substance when the substance has been present for such a length of...
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