Gainer v. Wal-Mart Stores E., L.P.

• Decision Date: 28 March 2013
• Docket Number: Case No. 2:11–cv–14331.
• Citation: 933 F.Supp.2d 920
• Parties: Diane GAINER, Plaintiff, v. WAL–MART STORES EAST, L.P., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

933 F.Supp.2d 920

Diane GAINER, Plaintiff,

v.WAL–MART STORES EAST, L.P., Defendant.

Case No. 2:11–cv–14331.

United States District Court,

E.D. Michigan,

Southern Division.

March 28, 2013.

Brian L. Fantich, Law Office of Michael G. Kelman, P.C., Farmington Hills, MI, for Plaintiff.

Nicole M. Wright, Zausmer, Kaufman, Farmington Hills, MI, for Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

This relatively simple slip-and-fall case presents a law school examination-type question which tests the boundaries of the present sense impression and excited utterance exceptions to the general prohibition against hearsay testimony. Specifically, it examines the extent to which hearsay statements themselves can be used to prove the actions and circumstances surrounding the event which actually prompted their utterance.

On August 30, 2011, Plaintiff Diane Gainer filed this action in Wayne County Circuit Court, alleging that Defendant Wal–Mart Stores East, L.P., is liable for injuries sustained as a result of her slip-and-fall in Defendant's store on September 13, 2008. Defendant removed the action to this Court on September 30, 2011, pursuant to 28 U.S.C. §§ 1441(a) and 1445(a). Following discovery, Defendant filed the present motion for summary judgment on June 29, 2012.

II. FACTUAL BACKGROUND

This case began in the mid-morning of September 13, 2008, when Plaintiff Diane Gainer and her daughter, Angela Bell, drove to Defendant's Livonia, MI location. Ms. Bell and Plaintiff parked towards the back of the lot, which was wet and covered with puddles from that morning's rainstorm. It does not appear that it was raining when Plaintiff and her daughter arrived at the store.

Plaintiff and her daughter walked across the parking lot, approached the store's entrance, and passed through the first of two sets of automatic sliding doors into a vestibule. The vestibule—comprising of the area between the two sets of automatic doors—was about 10 feet in length and contained a shiny, glassy-looking, dark-colored floor. The second set of doors leads from the vestibule into the store itself. The parties dispute whether or not the floor was covered with mats, but it is undisputed that no warning signs or cones were posted to alert invitees of any danger.

Plaintiff's daughter passed through the doors first and was about four feet ahead of Plaintiff when she stopped to let her mother catch up. Plaintiff walked “very carefully” over the same ground just traversed by her daughter, and was “looking down” at the ground as she walked. Neither Plaintiff nor her daughter saw anything on the ground, and her daughter did not warn her to be careful.

Plaintiff suddenly began to fall. She reached out to hold on to her daughter, but could not reach, and eventually lost her footing and fell on her bottom, breaking her wrist and allegedly incurring a number of other injuries.

Several customers came to help Plaintiff to her feet, allegedly stating that “[other] people had came in and almost went down because they didn't have mats or cones out there.” Pl. Dep. 46–47. According to Ms. Bell, the unidentified customers were “very upset,” stating “they [Defendant] were just mopping the [mother f--king] floor. Why didn't they put mats out or signs out?” Bell Dep. 39–40. The customers helped Plaintiff off the floor and seated her on a bench, where she met with a Wal–Mart employee about her fall and had her daughter fill out an Incident Report on her behalf. A security guard was positioned beyond the second set of doors throughout the incident, but there is no evidence regarding the guard's identity or what he saw before, during, or after Plaintiff's fall.

In her deposition, Plaintiff was asked about the cause of her fall. The transcript reads as follows:

(By counsel)

Q: What do you believe caused you to slip and fall in the vestibule?

A: Water on the floor.

Q: Do you think anything else caused you to fall?

A: No.

Q: Was there anything in the area that blocked your view of the floor?

A: It was nothing on the floor, it's just a wide open space that you just walk through.

Q: Do you recall how much water was on the floor that you believe caused you to fall—

A: I couldn't—

Q: Diane, you've got to wait. Do you believe, do you know how much water was on the floor that you believe you slipped in?

A: No.

Q: Do you know how that water got on the floor that caused you to fall?

A: I guess someone had mopped out there I guess.

Q: You think someone mopped?

A: Yes, they told me someone had been out there mopping.

Q: Who told you that?

A: One of the customers.

Q: Another customer told you that Wal–Mart had been mopping the vestibule?

A: Uh-huh.

Q: Is that a yes?

A: Yes.

Q: Who's this customer?

A: I don't know their name. You know what, I didn't talk [sic] nobody's name because I didn't realize that I had really hurt myself.

Q: When did this customer tell you that they saw someone mopping the floor?

A: Before I came in I believe.

Q: Before you came into the vestibule?

A: Before, I guess before, yes.

* * * *

Q: You were out of the parking lot when someone told you this?

A: No, no, I was inside when they told me after I fell.

Q: After you fell?

A: Yes, ma'am.

Q: And you were sitting on the bench?

A: Before I could, when they was getting me up off of the floor, I could hear the customers, I could.

Pl. Dep. 55–57.

Later in her deposition, Plaintiff admitted that she does not know how the water got on the floor. Pl. Dep. 61 (“Q: And you don't know how the water got on the floor? A: No, I don't.”). Further, Plaintiff claimed to possess no personal knowledge of: (i) when Wal–Mart last mopped the area; (ii) whether the area was wet mopped or dry mopped; (iii) whether a customer had recently spilled water or some other liquid in the vestibule; (iv) whether a customer had recently tracked-in rain water from the wet parking lot; (v) when the vestibule was last inspected by Wal–Mart; (vi) if any other customers fell or complained to Wal–Mart management about water in the vestibule; or (vii) how long the alleged water had been sitting in the vestibule prior to Plaintiff's fall. Plaintiff's daughter likewise was unable to assert personal knowledge of any of these facts.

Neither Plaintiff nor her daughter reported seeing water on the ground either before or after Plaintiff's fall. When asked how she knew her fall was caused by water, and not something else, Plaintiff stated “[b]ecause when they got me up, my clothes [short pants and three quarter shirt sleeves] was damp from the fall.” Pl. Dep. 60.

Anne Greer, assistant manager of the Wal–Mart, stated in her affidavit that, “as part of my daily routine ... I conduct multiple visual inspections (also known as “Safety Sweeps” and “Zoning”) throughout the subject store, including the vestibule area” where Plaintiff fell. Greer Aff. 1. She further averred that “based on my inspections of the store, including the vestibule area, the floor was well maintained and free from substances, spills, debris and/or any other types of materials before Plaintiff reported the alleged incident. Further, there were mats down on the vestibule area on said date.” Greer Aff. 2. Finally, Greer stated that Wal–Mart had received no complaints or concerns about the vestibule area prior to Plaintiff's fall, and that several customers had safely traversed the vestibule prior to Plaintiff fall.

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment is proper if the moving party “shows that there is no genuinedispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As the Supreme Court has explained, “the plain language of Rule 56[ ] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In deciding a motion brought under Rule 56, the Court must view the evidence in a light most favorable to the non-moving party. Pack v. Damon Corp., 434 F.3d 810, 813 (6th Cir.2006). It is well settled that “[t]he evidence of the non-movant is to be believed, and that all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, the evidence submitted by non-movant in opposition to a motion for summary judgment must be admissible evidence. Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir.2009) (“the party opposing the motion then may not rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must make an affirmative showing with proper evidence in order to defeat the motion.”) (internal citations omitted). More specifically, “[h]earsay evidence must be disregarded.” Id. (internal citations omitted). Thus, this Court must grant summary judgment if Plaintiff cannot provide admissible evidence to support each element of its claim.

B. Plaintiff's failure to present admissible evidence of negligence requires summary judgment in Defendant's favor

To establish negligence under Michigan law, Plaintiff must demonstrate (i) that Defendant owed Plaintiff a legal duty; (ii) that Defendant breached that duty; (iii) that Plaintiff suffered injuries; and (iv) that Defendant's breach of duty was both the “cause in fact” and “legal cause” of those injuries. See, e.g., Case v. Consumers Power Co., 463 Mich. 1, 6, 615 N.W.2d 17 (2000); Skinner v. Square D Company, 445 Mich. 153, 163–64, 516 N.W.2d 475 (1994). There is no dispute that Plaintiff, as a customer at Defendant's store, was an invitee, and that Defendant owed Plaintiff “a duty to exercise reasonable care in order to protect the invitee [Plaintiff] from...