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

• Decision Date: 16 August 2021
• Docket Number: CASE NO. 19-62352-CIV-ALTMAN/Hunt
• Citation: 555 F.Supp.3d 1276
• Parties: Nosleyki TORRES, Plaintiff, v. WAL-MART STORES EAST, L.P., Defendant.
• Court: U.S. District Court — Southern District of Florida

555 F.Supp.3d 1276

Nosleyki TORRES, Plaintiff,

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

CASE NO. 19-62352-CIV-ALTMAN/Hunt

United States District Court, S.D. Florida.

Signed August 16, 2021

Filed August 17, 2021

Brandon Lavery, Rubenstein Law, Ronnie Michael Gotti, II, Plantation, FL, Carlos Angel Jordi, Rubenstein Law, Miami, FL, Robert Timothy Vannatta, Young & Stein, P.A., Boca Raton, FL, for Plaintiff.

Jerry Dean Hamilton, Suzette Luisa Russomanno, William Edwards, Marta R. Golani, Hamilton Miller & Birthisel, LLP, Miami, FL, for Defendant.

ORDER

ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE

Who should decide whether, in weighing its important interest in reducing overhead costs against an invitee's right to amble freely through unpuddled aisles, Wal-Mart has struck the right balance? A life-tenured judge no one elected? A jury of both parties’ peers? The answer—to us—seems clear. But, to help guide us to the right result, query for a moment how such a decision would even be made? Where, in other words, should we set that evanescent line between the rules Wal-Mart implemented and the ones it should have implemented? We cannot, after all, simply assume that Wal-Mart's procedures—whatever they are—comport with the applicable standard of care (whatever that happens to be). We must apply those procedures in the real world and consider them in the light of their practical consequences. Recall, in this respect, Justice Holmes's famous observation that "[t]he life of the law has not been logic: it has been experience."¹

What do we mean? Suppose, for instance, that Wal-Mart had decided never to check for transient liquids on its floors. Suppose, too, that a man visiting a Wal-Mart store slipped on a puddle that had been left there, in the aisle, for 24 hours. Would Wal-Mart have acted reasonably ? Most of us would say probably not. Suppose, though, that Wal-Mart's policy was to check the aisles every hour and that a man slipped on a puddle that had been left unattended for 59 minutes: would that be reasonable? What if Wal-Mart had checked every 30 minutes? Every 15? Every 5? At what point does a single grain of sand become a mound? The point, of course, is that no federal judge can (or should) say. If we are, as we were meant to be, a democracy—and if Adams was right in suggesting that everyday jurors are the "heart and lungs" of that democracy² —then we should let jurors (not unelected judges) make these policy choices for us. Wal-Mart's motion for summary judgment is DENIED .

THE FACTS ³

On November 10, 2017, Nosleyki Torres was shopping in a Wal-Mart with his wife, Yulieski Gonzalez, and their daughter. See Gonzalez Dep. [ECF No. 32-3] at 20:22–21:3. Wal-Mart's closed-circuit television ("CCTV") shows that Torres first went down Wal-Mart's freezer aisle at 8:31 P.M. See CCTV [ECF No. 28] at 8:31:50. He returned to that same aisle about 15 minutes later, looking for "chimichanga or tacos" for his wife. Id. at 8:49:51; Gonzalez Dep. at 37:23–38:2. But, as Torres was pushing his shopping cart down the freezer aisle—with his daughter sitting in the cart—he slipped on water and fell to the ground. See Torres Dep. [ECF No. 32-1] at 37:11–15, 42:12–16.⁴

Although Torres testified that he didn't know how long the water had been on the floor, id. at 44:7–12, he explained that, after he fell, he saw that water was "leaking from the ceiling" and that, as "the water hit the floor, it would splash," id. at 48:14–23. Torres's wife testified that, "after he fell we looked around for the place where the water was coming from and there was one drop dripping down from the ceiling." Gonzalez Dep. at 22:8–12. The water was dripping from the ceiling at the "exact" spot where he slipped. Torres Dep. at 48:14–23.

Wal-Mart's CCTV footage shows that Torres got up slowly from the floor and immediately grabbed his lower back, see CCTV at 8:50:55—apparently (according to him) in pain, Torres Dep. at 15:1–4. He then told a Wal-Mart employee, assistant manager Johnny Elas, that he'd fallen. See Torres Dep. at 47:17–20; Elas Dep. [ECF No. 32-2] at 45:16–21. Elas testified that Torres—who was holding his back—relayed pain down the "whole left side" of his back. Elas Dep. at 49:2–9. Elas followed Torres to the spot where he'd fallen—and, once there, he immediately saw "water on the floor." Id. at 50:10–12. According to Elas, the puddle—though relatively "small"—amounted to a "bottle of water." Id. at 50:13–23.

At his deposition, Elas testified that he wasn't "sure" where the water had come from, but he offered that "maybe the water might [have been] coming from the ceiling." Id. at 50:24–51:7. In fact, he added, because it had been raining that day, "probably the water [was] coming from the ceiling." Id. at 52:1–10.⁵ And there's plenty of corroboration for this belief. Torres, for instance, recalled that, when Elas got to the scene of the fall, he looked up and said that the water "was coming from the ceiling." Torres Dep. at 45:21–25. Indeed, in the accident report he filed for Wal-Mart, Elas wrote that "[w]ater from [c]eiling" had "caused the incident." Accident Report [ECF No. 37-1] at 1. Nor was this belief unsupported by past experience. As Elas later testified, the roof had leaked before and, "when it's raining, that's when we know it got the leak." Elas Dep. at 76:18–77:2.

The parties disagree about how long the water was on the ground. Wal-Mart assumes that the water was there "for less than approximately 15 minutes" because that's how much time elapsed between when "Torres first traversed the area ... to the time he fell." Wal-Mart's Motion for Summary Judgment [ECF No. 31] ("MSJ") at 7. The inference seems to be that, because Torres didn't spot the water the first time he passed through that aisle, the puddle could not have been there. Id. Torres, for his part, suggests that the water was there for "hours." MSJ Response [ECF No. 37] at 4. After all, he says, it had rained earlier in the day; he and his wife had seen the water dripping slowly from the ceiling; and, given how much water had accumulated on the floor—and how slowly it was dripping—the ceiling must've been leaking for some substantial length of time. Id. On top of all this, pictures of the area where Torres fell appear to show at least three track marks, a footprint that looks to be from another customer, and drying water—all indicia that the puddle had been there for a significant period of time. See Torres's SOF [ECF No. 36] ¶ 49; Pictures [ECF No. 37-2] (showing post-incident photos of the water).⁶ The pictures also appear to show splattered droplets of water spread out across the floor, which is consistent with water splashing as it drops from the high ceiling and hits the ground. See generally Pictures. The CCTV footage—which begins almost an hour before Torres fell—doesn't reveal any other spills or obvious sources of water. See CCTV at 7:53:55–8:50:50.

Under Wal-Mart's policies, employees have an "ongoing responsibility" to scan the floors for dangerous conditions. Elas Dep. at 25:1–27:20. In other words, "everybody working [in] the department" is obligated to make sure that there are no spills. Id. at 25:14–21. Since this duty is continuous, there's no "specific time to do it." Id. Elas explained the ongoing responsibility this way:

Q. Exactly. There's no set time -- okay. No. If you're walking the floor, you've got to make sure you're looking down to see if there's any spills, right?

A. Exactly because it's not there like -- yeah, exactly. We always have to check to see when you're walking. Like let's put it like that: Walk and then clean at the same time.

Id. (emphasis added). But, for whatever reason, on the day Torres fell, this didn't happen. See CCTV at 8:42:14–8:42:27. The CCTV footage, in fact, shows that only one Wal-Mart employee walked through that particular aisle in the hour or so before the incident, id. at 7:53:55–8:50:50—and, the footage seems clear, that employee never glanced down towards the floor, id. at 8:42:14–8:42:27. While Wal-Mart tries to justify this failure by suggesting that a customer's cart might have obstructed the employee's view of the water, see Wal-Mart's SOF [ECF No. 32] ¶ 22, Torres quarrels with this proposition, see Torres's SOF ¶ 22, and the video doesn't (definitively) settle the question one way or the other.

Torres blames his Wal-Mart slip-and-fall for the severe back injury he suffered. Before the fall, Torres says, he'd never experienced "any pain or discomfort" in his lower back. Torres Dep. at 16:1–12. After the fall, however, his back pain, which traveled all the way to his knee, was at a "ten." Id. at 27:4–10, 29:8–13. Before the fall, Torres "never" felt any discomfort while holding his daughter. Id. at 57:7–16. Torres now finds it very painful to carry her. Id. And, although Torres—who works as a handyman—still takes on various projects, he's found it more difficult to work after the fall. Id. at 8:3–4, 68:7–12.

Torres saw several doctors after the incident, including Dr. Julian Cameron. Id. at 21:9–29:2. Dr. Cameron reviewed an MRI of Torres's back and concluded that his "lower back was damaged." Id. at 23:24–24:18. Dr. Cameron's "Initial Report" is dated December 21, 2017—a little over one month after Torres fell at the Wal-Mart. See Medical Records [ECF No. 37-5] at 38. The Initial Report marked Torres's "DOI" (i.e. , date of injury) as November 10, 2017—the day of the Wal-Mart fall. Id. Dr. Cameron's records note that Torres had "traumatic disc herniations of the lumbar spine." Id. at 39. Before turning to surgery, Dr. Cameron prescribed physical therapy. Id. Dr. Cameron also gave Torres at least one injection for his back pain. See Torres Dep. at 24:25–25:17. When these conservative measures failed to provide sufficient pain relief, Dr. Cameron advised Torres to pursue a surgical option. See Medical Records at 92. Torres agreed, and Dr. Cameron performed surgery on Torres's back on April 10, 2018. Id. at 159. Dr....