Morris v. Wal-Mart Stores, Inc.

• Decision Date: 04 June 2003
• Docket Number: No. 01-5893.,01-5893.
• Citation: 330 F.3d 854
• Parties: Sandra MORRIS, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

330 F.3d 854

Sandra MORRIS, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee.

No. 01-5893.

United States Court of Appeals, Sixth Circuit.

Argued November 4, 2002.

Decided and Filed June 4, 2003.

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James M. Allen (argued and briefed), Filderman & Allen, Memphis, TN, for Plaintiff-Appellant.

W.O. Luckett, Jr. (argued and briefed), Lorrie K. Ridder (briefed), David A. Billions (briefed), Rossie, Luckett, Parker & Laughlin, Memphis, TN, for Defendant-Appellee.

Before KEITH, KRUPANSKY, and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which KEITH, J., joined. KRUPANSKY, J. (pp. 862-869), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Plaintiff, Sandra Morris, appeals from the district court's judgment granting the motion for judgment as a matter of law in favor of Defendant, Wal-Mart Stores, Inc., at the close of Plaintiff's case-in-chief in this negligence action wherein Plaintiff seeks damages from Defendant for the injuries that she allegedly sustained as a result of a slip and fall on Defendant's premises. Because we believe that when viewing the evidence and all permissible inferences most favorably for Plaintiff, there is material evidence to support a verdict for Plaintiff, we REVERSE the district court's order and REMAND the case for trial.

BACKGROUND

On September 27, 1998, Plaintiff and her husband, Michael Morris ("Morris"), were shopping at Defendant's "Sam's Club" store located in Memphis, Tennessee. Morris was pushing the shopping cart and Plaintiff was slightly behind Morris on his left hand side. The two were walking through the freezer section of the store when, after rounding a corner, Plaintiff slipped on a wet substance thought to be water and fell next to a small portable freezer known as a "spot box." At the time of her fall, Plaintiff was between Morris and the spot box. Morris noticed Plaintiff's "feet go up" as she fell while hitting the spot box and the cart that Morris had been pushing. According to Morris, in the course of the fall Plaintiff struck her legs on the spot box and shopping cart, landed on her lower back and buttocks, and then lay completely flat. Plaintiff attempted to pull herself up using the cart that Morris was holding, but slipped half-way up and fell a second time. Plaintiff was allegedly screaming as these events occurred, and described the fall as "violent." (J.A. at 35, 72.)

Some of Defendant's employees approached the scene to lend assistance. Once Plaintiff was finally standing up, she noticed that her clothes were "soaked," including her shoes. Plaintiff testified that she believed that the liquid in which she fell was water from the spot box freezer. Plaintiff claimed that the water felt cold, but was unsure whether the cold feeling was attributable to the water temperature itself or to the surroundings inasmuch as she was in the freezer section of the store. One of the employees called for store manager Kenneth Kanizar, who arrived on the scene shortly thereafter. Kanizar ordered an employee to get a mop and clean up the liquid. Defendant's employee Betty Baird testified that she was the individual who cleaned up the water after Plaintiff fell. Baird stated that she used some paper towels to clean up the water which, by that time, was about ten inches in diameter and "[r]ight there under the drain of the freezer." (J.A. at 94.)

Kanizar took a statement from Plaintiff, which was written by Morris and signed by Plaintiff. The statement provided by Plaintiff at the time of the fall was read into evidence at trial and provided: "Turned corner in frozen food area and fall [sic] in water leaking from display cooler/freezer. Injured both knees, toes, back, hip, right hip, and swelling in both legs." (J.A. at 39.)

Plaintiff testified that Kanizar communicated to them that it was his belief that the liquid substance present on the floor was water that had leaked from the spot box freezer. Kanizar "pointed out" to Plaintiff and Morris that the plug on the bottom of the spot box freezer was out. (J.A. at 40.) Kanizar further communicated to Plaintiff and Morris that the spot box freezer was new and that he was afraid that it may not be functioning properly so he wanted it immediately removed from the floor, particularly since it had not been "out but a very short period of time." (J.A. at 84.)

Morris escorted Plaintiff out of the store in a wheel chair provided by Defendant, and took her to a hospital emergency room. Plaintiff was discharged from the hospital after x-rays were taken and medication was prescribed for the pain. The following day Plaintiff was severely bruised and "could barely walk." (J.A. at 42.) She saw her doctor who advised Plaintiff to stay in bed and off of her feet for a week; Plaintiff complied with her doctor's advice.

Plaintiff filed this negligence action against Defendant in the circuit court of Shelby County, Tennessee on June 29, 1999, and Defendant removed the matter to the United States District Court for the Western District of Tennessee on August 9, 1999 on the basis of diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a). Thereafter, the parties consented to the case being tried by a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(2), and the case proceeded to trial. Following Plaintiff's case-in-chief, Defendant moved for judgment as a matter of law, claiming that Plaintiff failed to proffer evidence to show that Defendant had notice, actual or constructive, of the water, and that Plaintiff could not rely upon the doctrine of res ipsa loquitur inasmuch as Plaintiff failed to demonstrate that Defendant was in exclusive control of the spot box freezer. Plaintiff argued that she was not attempting to show notice, and in fact admitted that she could not prove notice. Rather, Plaintiff claimed that she proffered evidence to show that Defendant created the dangerous condition by placing the new spot box out without a plug in it, and also argued that the doctrine of res ipsa loquitur applied. The district court took Defendant's motion under advisement.

The next day, the district court granted Defendant's motion on the record finding that Plaintiff failed to present sufficient evidence for a reasonable jury to conclude that Defendant created the dangerous condition, and that while the evidence did indicate that the spot box freezer had been in Defendant's control, the evidence did not demonstrate that the spot box had been in Defendant's exclusive control for purposes of invoking the doctrine of res ipsa loquitur. Judgment was entered in favor of Defendant, and it is from this judgment dismissing Plaintiff's case upon Defendant's motion for judgment as a matter of law that Plaintiff now appeals.

DISCUSSION

In a diversity case, when a Rule 50 motion for judgment as a matter of law is based on a challenge to the sufficiency of the evidence, we apply the standard of review used by the courts of the state whose substantive law governs the matter. Morales v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir.1998). Here, Tennessee law governs the substance of the matter, and under Tennessee law, when considering a motion for a directed verdict in a jury case, the trial court "must consider the evidence most favorably for the plaintiff, allow all reasonable inferences in plaintiff's favor and disregard all counteracting evidence, and, so considered, if there is any material evidence to support a verdict for plaintiff, [the court] must deny the motion." City of Columbia v. C.F.W. Const. Co., 557 S.W.2d 734, 740 (Tenn. 1977).

"To establish negligence, one must prove: (1) a duty of care owed by defendant to plaintiff; (2) conduct falling below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause." McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891, 894 (Tenn.1996) (citing McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995)). In the context of a premises liability case, the Tennessee courts have stated that a business owner breaches the duty of care owed to its customers when it allows a dangerous condition or defect to exist on the premises if that condition or defect was created by the owner, operator or his agent; or, if the condition is created by someone else, when the business owner had actual or constructive notice that the dangerous condition or defect existed prior to the injury. See Hardesty v. Serv. Merch. Co. Inc., 953 S.W.2d 678, 682 (Tenn.Ct.App.1997); Chambliss v. Shoney's Inc., 742 S.W.2d 271, 273 (Tenn.Ct. App.1987); Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560, 563 (Tenn.Ct.App. 1985); Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn.Ct.App.1980); Paradiso v. Kroger Co., 499 S.W.2d 78, 79 (Tenn.Ct. App.1973).

In the matter at hand, Plaintiff's counsel argued in response to Defendant's motion for judgment as a matter of law that Plaintiff had presented sufficient evidence for a reasonable jury to infer that Defendant had breached its duty to Plaintiff by creating the dangerous condition

by putting out their [sic] new spot box — that is in the record — without a plug in it — that is in the record — under which directly there was an issue of water. That is in the record. My client didn't put it out there. We don't know who put it out there. I think the jury can draw an inference from the testimony that it was new, that is [sic] was put out there without somebody checking the plug, which is exactly what I think they [the jury] would have drawn.

(J.A. at 115.) Counsel for Plaintiff went on to explain that

this is a res ipsa case. It is a box in the exclusive control of the defendant, which had it been put out there with the standard of care required, would not have been dangerous. In other words, it caused, but for the negligence of the defendant, this undangerous — not normally dangerous product became a...