Napell v. Aten Dept. Store, Inc.

• Decision Date: 17 August 2000
• Docket Number: No. 99-4058-DES.,99-4058-DES.
• Citation: 115 F.Supp.2d 1275
• Parties: Janice NAPELL, Plaintiff, v. ATEN DEPARTMENT STORE, INC., Defendant.
• Court: U.S. District Court — District of Kansas

115 F.Supp.2d 1275

Janice NAPELL, Plaintiff, v. ATEN DEPARTMENT STORE, INC., Defendant.

No. 99-4058-DES.

United States District Court, D. Kansas.

August 17, 2000.

James R. Clinkscales, Clinkscales & Brubaker, P.A., Hays, KS, Lelyn J. Braun, Oyler & Pauzauskie, Topeka, KS, for plaintiff.

Ron D. Martinek, Craig C. Blumreich, Gehrt & Roberts, Chartered, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendant's Motion for Summary Judgment (Doc. 22) in this negligence action involving a "slip and fall" by plaintiff, Janice Napell, at a store owned and operated by the defendant, Aten Department Store, Inc., in Hays, Kansas. Defendant's motion is granted based on the following reasons.

I. FACTUAL BACKGROUND

The basic facts of this case are not in dispute. On December 24, 1997, in Hays, Kansas, snow and partially frozen slush were on the ground as a result of the previous day's snowfall. The plaintiff entered defendant's store at approximately 2:00 p.m. to do some shopping. After walking through the store entrance, plaintiff stepped off to the side¹ and stomped her feet on a mat in an attempt to remove any excess water or snow from the bottom of her shoes.

Plaintiff then proceeded, without difficulty, to traverse the necessary ten to twelve feet across the store's tile floor to the top of a flight of stairs leading to the store's basement level. No mat was placed at the top of the stairs and no signs were present warning persons of the possibility of water or snow on the store's floor or steps. On the day in question, defendant did not conduct any additional maintenance procedures aimed at addressing the possibility of moisture being present on the store's floor. Instead, defendant maintained the floor consistent with its normal business operation. Upon beginning her descent, plaintiff's sworn testimony indicates that she slipped and fell, and that the momentum of the fall carried plaintiff down six or seven steps. No witnesses were present to view plaintiff's fall. As a result of the fall, plaintiff sustained personal injuries for which she seeks monetary damages from the defendant. Defendant's motion for summary judgment asserts that (1) plaintiff has not produced any competent evidence demonstrating that defendant negligently maintained its premises; (2) plaintiff has not produced any competent evidence that a dangerous condition existed on defendant's premises for which defendant had notice thereof; and (3) plaintiff cannot rely on any exception to proving defendant's notice regarding any alleged dangerous condition.

II. STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). The movant may discharge its burden "by `showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant need not negate the nonmovant's claim. Id. at 323, 106 S.Ct. 2548. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (interpreting Fed.R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof. Id. at 322, 106 S.Ct. 2548. Such a complete failure of proof on an essential element of the nonmovant's case renders all other facts immaterial. Id. at 323, 106 S.Ct. 2548.

A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986) ("The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues."). The court's function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party's favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250, 106 S.Ct. 2505.

III. ANALYSIS

Plaintiff alleges that defendant was negligent (1) in failing to change the floor mats more frequently during the day; (2) in failing to periodically mop and clean the floor and keep the same dry; (3) in failing to post signs or warnings sufficient to indicate the possibility of water, rain, or snow present on defendant's floor or steps; and (4) in failing to post signs or warnings sufficient to indicate the possibility that the floor mats were wet and dangerous. Normally, the presence or absence of negligence is a question of fact reserved for the jury. Honeycutt v. City of Wichita, 247 Kan. 250, 796 P.2d 549, 551 (1990). These issues, however, may be resolved on summary judgment when the facts present only one reasonable conclusion. Lay v. Kansas Dept. of Transp., 23 Kan.App.2d 211, 928 P.2d 920, 924 (1996). To prove negligence under Kansas law, plaintiff must establish that defendant owed a duty to plaintiff, that defendant breached that duty, that plaintiff was injured, and that a causal connection exists between the duty breached and the injury sustained. Honeycutt v. City of Wichita, 251 Kan. 451, 836 P.2d 1128, 1136 (1992).

A. Duty Owed to Plaintiff

The court notes that the parties have previously stipulated that plaintiff was a business invitee of defendant.² Therefore, as a proprietor, defendant owes plaintiff a duty to exercise reasonable care in keeping those portions of the premises open to invitees in a reasonably safe condition. Sewell v. Wal-Mart Stores, Inc., No. 91-4053-S, 1992 WL 198874 (D.Kan. Aug.5, 1992); Lyon v. Hardee's Food Sys., Inc., 250 Kan. 43, 824 P.2d 198, 204 (1992); Knowles v. Klase, 204 Kan. 156, 460 P.2d 444, 445 (1969); Bingham v. Hillcrest Bowl, Inc., 199 Kan. 40, 427 P.2d 591, 594 (1967). A proprietor, however, "is not an insurer of the safety of his customers or invitees." Parks v. Montgomery Ward & Co., 198 F.2d 772, 774 (10th Cir.1952) (citing Steinmeyer v. McPherson, 171 Kan. 275, 232 P.2d 236 (1951); Thompson v. Beard & Gabelman, Inc., 169 Kan. 75, 216 P.2d 798 (1950); Relahan v. F.W. Woolworth Co., 145 Kan. 884, 67 P.2d 538 (1937)). Rather, a proprietor must exercise reasonable care to protect an invitee from any danger that may be reasonably anticipated. Graham v. Loper Elec. Co., 192 Kan. 558, 389 P.2d 750, 753 (1964). In Thompson, the court surmised the applicable duty of care as follows:

The proprietor of a store, shop, or other place of business kept open for public patronage is not under an insurer's liability as to the safety of persons who come thereon, but he does owe to customers who enter the premises, while the establishment is open for business, the duty of exercising ordinary care to keep the aisles, passageways and such other parts of the premises as are ordinarily used by customers in transacting business in a reasonably safe condition for use by the persons thus entering....

216 P.2d at 800.

B. Defendant's Breach

The only evidence before the court that could be the basis for plaintiff's assertion that defendant failed to maintain its premises in a reasonably safe condition is defendant's failure to periodically change the floor mat during the day and its lack of regular mopping of the store's floor. The court, however, agrees with defendant that, even after according plaintiff all permissible inferences, the record is absolutely devoid of any competent evidence indicating that the defendant's omissions amounted to a breach of its duty.

Plaintiff has not produced any evidence showing that the floor mat was actually in need of replacement, nor has plaintiff presented evidence that the mat's location constituted a breach. Plaintiff has produced no evidence that the area in which she fell required additional mopping due to an accumulation of water, ice, or snow. The only evidence that plaintiff presents regarding the condition of either the floor, steps, or floor mat within defendant's premises is supplied by plaintiff's own deposition. Plaintiff was asked: "[Y]ou don't even know if there was a wet floor, do you?" (Dep. at 60). She answered by stating "no." (Dep. at 60). Additionally, plaintiff concedes that neither she nor anyone else investigated the scene of...