Wagoner v. Dollar Gen. Corp.

• Decision Date: 27 June 2013
• Docket Number: No. 11–cv–1394–JAR.,11–cv–1394–JAR.
• Parties: Constance WAGONER, Plaintiff, v. DOLLAR GENERAL CORPORATION and DG Retail, LLC, Defendants.
• Court: U.S. District Court — District of Kansas

955 F.Supp.2d 1220

Constance WAGONER, Plaintiff,

v.DOLLAR GENERAL CORPORATION and DG Retail, LLC, Defendants.

No. 11–cv–1394–JAR.

United States District Court,

D. Kansas.

June 27, 2013.

Brock R. Snyder, Berryton, KS, for Plaintiff.

Michael Lee Baumberger, David W. Steed, Klenda Austerman, LLC, Wichita, KS, for Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

On December 15, 2011, Defendant Dollar General Corporation removed this action from Kansas state court. Plaintiff Constance Wagoner originally filed a complaint alleging negligence, specifically premises liability, and seeking damages against Dollar General Corporation resulting from her trip and fall on or about November 7, 2010, within a Dollar General store in Park City, Kansas. Plaintiff added DG Retail, LLC as a co-defendant on March 28, 2012. This matter is before the Court on Defendants' Motion for Partial Summary Judgment (Doc. 44). The motion is fully briefed and ready for the Court's ruling. As described more fully below, the Court grants Defendants' motion in part and denies in part.

I. Summary Judgment Standard

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 judgment as a matter of law.” ¹ In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.² A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” ³ An issue of fact is “genuine” if “the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.” ⁴

The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.⁵ In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.⁶

Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” ⁷ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.⁸ Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” ⁹ To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” ¹⁰Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.¹¹ “The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation,” ¹² and “cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” ¹³

Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy, and inexpensive determination of every action.” ¹⁴

II. Uncontroverted Facts:

Dollar General Retail, LLC (“DG Retail”) does business as Dollar General. DG Retail is a subsidiary of Dollar General Corporation (“DGC”). DG Retail owns and operates the store where the accident occurred and manages the store and all its employees. DGC does not own, lease, or operate the store.

On or about November 7, 2010, Plaintiff entered the Dollar General store located in Park City, Kansas, where she tripped on a folded-over corner of a mat placed just inside the entrance of the store. Surveillance video shows that about five minutes before Plaintiff entered the store, the corner of the mat was kicked over by a customer. The surveillance video further shows four shoppers crossed the mat without any problems in the time between when the mat was flipped over and when Plaintiff tripped over the mat.

As Plaintiff entered the store, she stepped on a folded-over corner of the mat with her left foot. She then took a step forward with her right foot. Her right foot got caught up in the folded portion of the mat. Because her left foot was holding down the corner, the “loop” trapped her right foot and caused Plaintiff to lose her balance and fall forward. Plaintiff landed on her right arm, which fractured about two inches below the shoulder.

Plaintiff was not looking down at the ground where she was walking but instead was looking straight ahead or to the side as she entered. Nothing obstructed Plaintiff's view of the floor mat, and the store was well-lit. Plaintiff testified at her deposition that if she were looking down, her fall would probably not have occurred.

The mat Plaintiff tripped over is rectangular in shape and measures approximately 62 and 1/4 inches by 39 and 3/4 inches. The mat has rounded corners and an anti-skid backing and is about 1/4 inches thick.

Plaintiff's daughter testified she entered the same Dollar General store on or about May 5, 2010, when she accidently kicked over a corner of the mat. The daughter further testified she stopped to fix the mat but did not say anything to anyone believing it was not a big deal.

III. DiscussionA. Mode of Operation Rule

As the parties note, this case is governed by Kansas substantive law.¹⁵ In order to establish liability for negligence, the plaintiff must establish: (1) the defendant owed a duty to the plaintiff; (2) the duty was breached; (3) the breach was the proximate cause of the plaintiff's injury; and (4) the plaintiff sustained damages.¹⁶ In a claim for premises liability, an owner or operator of a place of business that is open to the public owes a duty to the business visitor to use reasonable care, under all of the circumstances, in keeping the business place safe. ¹⁷ The owner or operator of the business must warn the business visitor of any dangerous condition that the owner or operator knows about or should know about if the owner or operator had exercised reasonable care in tending to the business.¹⁸

Generally, before a defendant may be held liable under Kansas premises liability law for an injury resulting from a dangerous condition, actual or constructive notice of the condition on the part of the defendant must be shown.¹⁹ In other words, before an owner or operator of a business can be found liable for an injury to a business visitor that resulted from a dangerous condition, it must be determined that the owner or operator had actual knowledge of the condition, or that the condition had existed for such a length of time that in the exercise of reasonable care, the owner or operator should have known of the condition.²⁰

Kansas courts have adopted the “mode of operation rule,” which generally allows a plaintiff in a slip and fall case to recover without a proprietor's actual or constructive knowledge of a dangerous condition if the plaintiff can show 1) the proprietor adopted a “mode of operation where a patron's carelessness should be anticipated; and 2) the proprietor fail[ed] to use reasonable measures commensurate with the risk involved to discover the condition and remove it.” ²¹ In other words, if it was reasonably foreseeable a dangerous condition would regularly occur due to the way the store was operated, and the proprietor failed to take reasonable measures to discover and remedy the potential dangerous condition, the mode of operation doctrine applies and a proprietor would be liable. ²² This allows an injured customer to recover “due to a condition inherent in the way the store is operated.” ²³ The mode of operation doctrine looks to the actual mode of operation, a specific method in which the business conducts itself, not to the events surrounding the accident. ²⁴ Ultimately, a reasonable jury must be able to find the dangerous condition was reasonably foreseeable and that reasonable precautions under the circumstances were not taken.²⁵

The mode of operation rule has limitations. As the Kansas Supreme Court noted,

The mode of operation rule is of limited application because nearly every business enterprise produces some risk of customer interference. If the mode of operation rule applied whenever customer interference was conceivable, the rule would engulf the remainder of negligence law. A plaintiff could get to the jury in most cases simply by presenting proof that a store's customer could have conceivably produced the hazardous condition.²⁶

This underlying hesitation has lead Kansas courts to generally limit the mode of operation doctrine to self-service operations.²⁷ The nature of such businesses, where shoppers are encouraged to obtain the items they wish to purchase from shelves and containers and move them from one part of the store to another, creates a “reasonable probability that these [slip and fall] risks will occur.” ²⁸

In Jackson v. K–Mart, the plaintiff slipped while walking in the children's clothing department of the defendant's store.²⁹ The plaintiff slipped on “a green liquid substance that was apparently avocado juice.” ³⁰ In holding the mode of operation rule applied, the Kansas Supreme Court noted that there was evidence that the store permitted refreshments sold at it's snack bar or purchased elsewhere to be taken into the retail portion of the store. ³¹

In Hembree v. Wal–Mart of Kansas, the Kansas Court of Appeals determined when the mode of operation rule does not apply.³² Hembree sued Wal–Mart after slipping on a white, creamy substance.³³ Wal–Mart claimed no employee reported seeing or cleaning up a spill and that employees conducted safety sweeps at certain hours each day to...