VIRGINIA EMERSON HOPKINS, Senior District Judge.
This slip-and-fall case was filed by Plaintiff Ebony Lawson against Defendant Wal-Mart Stores, East, L.P. ("Wal-Mart").
Before the Court is Wal-Mart's Motion for Summary Judgment (doc. 20) (the "Motion") filed on November 26, 2018. Ms. Lawson filed her opposition (doc. 25) to the Motion on February 26, 2019. Wal-Mart then filed its reply brief (doc. 27) in support of the Motion on March 12, 2019. Accordingly, the Motion is ripe for review. For the reasons stated in this opinion, the Motion is due to be
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (internal quotation marks and citation omitted)). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits—or by the depositions, answers to interrogatories, and admissions on file—it must designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman v. Al Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact—that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (emphasis added) (citation omitted).
For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.
On November 26, 2018, Wal-Mart filed the Motion. (Doc. 20). On November 29, 2018, this case was referred to mediation, and the action was stayed. (See doc. 21). On February 5, 2019, the stay was lifted because the mediation failed. (See doc. 23). On February 26, 2019, Ms. Lawson filed two documents: (1) her Rule 56(d) Motion Requesting Additional Discovery (doc. 24) (the "Motion To Reopen Discovery"), in which she moved the Court to deny the Motion or defer ruling on it until after discovery was reopened and additional discovery was completed; and (2) her opposition to the Motion. (Doc. 25). On March 4, 2019, the Court denied the Motion To Reopen Discovery. (See doc. 26). On March 12, 2019, Wal-Mart filed its reply brief in support of the Motion. (Doc. 27).
Ms. Lawson,
Her employment history includes working at Taco Bell off and on for three years. Her work at Taco Bell included safety training to ensure the floors were safe for customers and employees and free of spills and hazards. The training and employment included checking the condiments at Taco Bell to make certain there were no spills or hazards on the floor. Her employment history included standing guard over a spill until it could be cleaned, or cleaning it up herself if it was small enough.
Ms. Lawson additionally worked at Lowe's for approximately one and a half years, which included computer-based learning on safety and monitoring of the floors in the store. She conceded that one of her main job duties as a sales associate at Lowe's was safety of the store, including the monitoring and cleaning of the floors.
Prior to the incident, Ms. Lawson shopped at the Adamsville Wal-Mart store every two weeks. She had shopped at that particular Wal-Mart store many times.
Ms. Lawson went to Wal-Mart on Sunday, August 28, 2016, at approximately 3:45 p.m. to shop for groceries. She has good vision, and the store was well-lit on that day. She admittedly had no problem seeing as she walked around the store in flip flops shopping for groceries. She shopped in the store for around one hour prior to the time she slipped. She did not see any problems in the store while she shopped for that hour. She did not see anything on the floor while shopping.
Her shopping cart was full at the time she walked toward the front checkout aisles. She had several cases of water on the rack under the bottom of the shopping cart. The cases of water were wrapped in plastic, and she did not see any problems with the water and did not see any leaks coming from the water bottles.
When asked whether the store was busy on a Sunday afternoon the week before Labor Day, Ms. Lawson testified it was "so-so." However, she was directed from one checkout aisle to another aisle which was not as busy by Rebecca, a Wal-Mart associate. Ms. Lawson testified that "for the most part," she has only seen Wal-Mart associates directing customers to checkout aisles which are less crowded around the holidays.
The checkout aisles are located across the middle part of the front of the store. Ms. Lawson walked to the main aisle at the front of the store, which is marked as Aisle A on Exhibit 1.
Ms. Lawson walked to the tenth checkout aisle and turned to the right onto that aisle from Aisle A. The checkout aisle is approximately 20 feet long and five feet wide. There was no one in line at that checkout aisle. The checkout aisle looked similar to the photograph attached as Exhibit 2.
Ms. Lawson was six to eight feet on Aisle A from the entrance to the checkout aisle at the time she turned right from Aisle A. The merchandise in her cart was not above the height of her shopping cart itself, and she conceded she was able to see clearly. According to Ms. Lawson, while she was still on Aisle A, she noticed the floor on the checkout aisle she was about to walk down had footprints and it appeared to her "like people tracking the bottom of their shoes."
She walked down that checkout aisle to the area between the credit card reader and the back of the cash register. She then walked to the right side of her cart to place her merchandise on the conveyor belt. She did not slip or slide from the time she entered the checkout aisle to the time she placed her groceries on the belt.
Ms. Lawson told the cashier she had forgotten to get salad dressing and testified that the cashier told her to get it while the cashier finished ringing up her merchandise. She then walked across the same area of the floor she had previously walked over when she had moved her items from her shopping cart onto the belt. She "[does] [not] have an independent memory of looking down at the floor." (Doc. 20 at 30:95).
Ms. Lawson got the salad dressing and some cupcakes and walked over the same area from the grocery section of the store down Aisle A to her checkout aisle. She was in the same location six to eight feet on Aisle A when she once again turned to the right to walk down the checkout aisle. She does not recall looking down at the floor when she turned onto the checkout aisle from Aisle A.
While Ms. Lawson was still on the floor, Wal-Mart employees began to inspect items remaining in her shopping cart and immediately handed her a form to be filled out concerning the slip and fall accident. She attempted to comply with Wal-Mart's request, but she could not complete the form due to her being disoriented. Wal-Mart employees looked inside and underneath her shopping buggy, but they did not discover anything in the cart which was leaking liquid. While lying on the floor, Ms. Lawson did not see the source of the liquid.
After the incident, Ms. Lawson testified that she had a wet substance on her clothes down the leg of her pants up to the right side of her hips and her hands had a substance on them that looked like dirty water. After she stood up, she saw a puddle on the floor that was "maybe two feet" long and one foot wide. She testified the puddle was "dirty," she could see "dirty footprints," and there were shopping cart tracks in the puddle. She does not know how many shopping cart tracks were on the floor and does not know whether some customer's cart had gone through the puddle other than her own shopping cart. She admits that because the checkout aisle is only five feet wide that there is almost no way her shopping cart could have missed traveling through the puddle at the time she pushed her cart down the checkout aisle.
When asked what the substance looked like on Wal-Mart's white floor, she testified:
Ms. Lawson admits that she would have walked through the puddle at the time she pushed her shopping cart down the checkout aisle. She did not see the source of the liquid on the floor. She does not remember the liquid being sticky. She did not see anyone spill anything on the floor and does not know the origin of the liquid. She does not know how the substance came to be on the floor, how long it had been on the floor or how long the checkout aisle had been in the condition it was in at the time she slipped. She has no information or evidence that the liquid had been reported to Wal-Mart prior to the time she slipped. She did not hear anyone say the liquid had been on the floor for hours or hear anyone say something similar about the length of time it was on the floor. She never heard anyone from Wal-Mart say that they determined the source of the liquid.
Based on her job history, Ms. Lawson is aware that customers in stores can spill drinks. She testified that she believes the puddle was on the floor prior to the time she pushed her cart down the aisle and she simply failed to see it.
As stated earlier, the Complaint sets out one count for negligence and one count for wantonness. (See doc. 1-4 at 2-4). Wal-Mart seeks summary judgment on both claims. (See doc. 20 at 75). The Court finds that summary judgment should be denied on the negligence claim and granted on the wantonness claim. The Court will address the claims in turn.
In the Motion, Wal-Mart presents only one argument why it should be granted summary judgment on Ms. Lawson's negligence claim: that the liquid puddle was "open and obvious." (Doc. 20 at 75, 87-95). More specifically, Wal-Mart argues as follows: "the open and obvious nature of a `brownish' dirty puddle on a white floor that is two feet long and one foot wide, contains footprints and shopping cart tracks[,] and can be seen from a distance of 10 feet negates any duty which otherwise may have been owed by Wal-Mart." (Id. at 75).
To address this argument, the Court will first discuss the premises-liability standard on which its analysis relies. The Court will then explain why the liquid puddle was not "open and obvious" and, thus, why Wal-Mart's argument fails.
"In [a] premises-liability case, the elements of negligence are the same as those in any tort litigation: duty, breach of duty, cause in fact, proximate or legal cause, and damages." Johnson v. Logan's Roadhouse, Inc., No. 14-2037, 2016 WL 4585927, at *3 (N.D. Ala. Sept. 2, 2016) (alteration in original) (quoting Sessions v. Nonnenmann, 842 So.2d 649, 651 (Ala. 2002)). "The duty of a premises owner to an injured person depends on the status of the injured person in relation to the owner's property." Id. (citing Galaxy Cable, Inc. v. Davis, 58 So.3d 93, 98 (Ala. 2010)). In this case, "[t]he parties agree that [Ms.] Lawson was an invitee of Wal-Mart." (Doc. 25 at 13) (see also doc. 20 at 88).
"[A] landowner owes an invitee the duty to keep the premises in a reasonably safe condition and, if the premises are unsafe, to warn of hidden defects and dangers that are known to the landowner but that are hidden or unknown to the invitee." Johnson, 2016 WL 4585927, at *3 (alteration in original) (citing Galaxy Cable, Inc., 58 So. 3d at 98). "The entire basis of an invitor's liability rests upon [its] superior knowledge of the danger that causes the invitee's injuries. If that superior knowledge is lacking, as when the danger is obvious, the invitor cannot be held liable." Id. (citing Sessions, 842 So. 2d at 652).
"It is well-settled that a wet floor inside a place of business . . . constitutes an unsafe condition for the business's customers." Id. at *4 (citing Terrell v. Warehouse Groceries, 364 So.2d 675, 676 (Ala. 1978)). Accordingly, the owner of the premises normally would have a duty to warn invitees of the wet floor. However, "[t]he owner of [the] premises has no duty to warn an invitee of open and obvious defects in the premises which the invitee is aware of, or should be aware of, in the exercise of reasonable care on the invitee's part." Id. (citing Dolgencorp, Inc. v. Taylor, 28 So.3d 737, 742 (Ala. 2009)). "In other words, proof of an open and obvious hazard negates an invitor's duty to warn an invitee of the hazard." Id. (citing Sessions, 842 So. 2d at 652). However, even though proof of an "open and obvious" hazard negates an invitor's duty, the invitee does not bear the burden of proof of proving that the hazard was not "open and obvious" and, thus, that the invitor owed her a duty of care; instead, "[the] argument that the [hazard] . . . was open and obvious is an affirmative defense, for which [the invitor] bears the ultimate burden of proof." Dolgencorp, Inc., 28 So. 3d at 742 (explaining that there is no duty to warn of an open and obvious hazard but then clearly stating that "[the] argument that the [hazard] . . . was open and obvious is an affirmative defense" (citing Horne v. Gregerson's Foods, Inc., 849 So.2d 173, 176 (Ala. Civ. App. 2002); Furgerson v. Dresser Indus., Inc., 438 So.2d 732, 734 (Ala. 1983))).
"Courts use an objective standard to assess whether a hazard is open and obvious." Johnson, 2016 WL 4585927, at *4 (citing Dolgencorp, Inc., 28 So. 3d at 741-42). This is because "the question is whether the invitee should have observed the hazard, not whether the invitee actually appreciated it." Id. (citing Dolgencorp, Inc., 28 So. 3d at 741-42). Further, "[e]ach case must be examined in light of its particular circumstances." Id. (quoting Gray v. Mobile Greyhound Park, Ltd., 370 So.2d 1384, 1389 (Ala. 1979)); see also Blizzard v. Food Giant Supermarkets, Inc., 196 F.Supp.2d 1202, 1207 (M.D. Ala. 2002) (stating that "the analysis of `slip and fall' cases under Alabama law is fact intensive"). Accordingly, "[a] condition is `obvious' if the risk is apparent to, and of the type that would be recognized by, a reasonable person in the position of the invitee." Harris v. Target Stores, Inc., No. 17-569, 2019 WL 650436, at *3 (S.D. Ala. Jan. 2, 2019) (citing Hartzog v. Compass Bank, 686 So.2d 325, 327 (Ala. Civ. App. 1996); Hines v. Hardy, 567 So.2d 1283, 1284 (Ala. 1990)). "Thus, the Court must determine whether an objectively reasonable person in Ms. [Lawson]'s circumstances would have noticed and appreciated the dangerousness of the [liquid puddle] on [Wal-Mart's] [checkout aisle] floor." Johnson, 2016 WL 4585927, at *4.
In support of its argument that the liquid puddle was "open and obvious," Wal-Mart does the following in the Motion. First, Wal-Mart lists facts that purportedly show that the liquid puddle was "open and obvious," but it does not make any argument based on these facts or cite any legal authority. (See doc. 20 at 92-93). Second, Wal-Mart cites two cases—(1) Cummings v. Target Stores, Inc., No. 12-2798, 2014 WL 3889953 (N.D. Ala. Aug. 5, 2014), and (2) Ex parte Neese, 819 So.2d 584 (Ala. 2001)—in which the hazard was found to be "open and obvious" and analogizes this case to those two cases. (See doc. 20 at 93-95).
Accordingly, the Court will first address Wal-Mart's argument based on Cummings and Ex parte Neese since this is the only explicit argument that Wal-Mart makes and also is the only argument that is supported with legal authority. Then, the Court will review Wal-Mart's list of facts and address its implicit argument that summary judgment is proper based on these facts.
Ultimately, the Court rejects Wal-Mart's arguments and finds that, viewing the facts in the light most favorable to Ms. Lawson, the liquid puddle was not "open and obvious" because "an objectively reasonable person in [her] circumstances would [not] have noticed and appreciated the dangerousness of [it]." See Johnson, 2016 WL 4585927, at *4. Accordingly, summary judgment will be denied on the negligence claim.
Wal-Mart cites Cummings and Ex parte Neese as cases in which a hazard was found to be "open and obvious" when a plaintiff "walked over [a] hazard 2-3 times" before slipping and falling and she should have seen the hazard, appreciated the danger, and avoided it if she had been "exercis[ing] reasonable care." (Doc. 20 at 94) (citing Cummings, 2014 WL 3889953, at *6; Ex parte Neese, 819 So. 2d at 590). More specifically, Wal-Mart quotes the following analysis from Cummings:
(Id.) (quoting Cummings, 2014 WL 3889953, at *6). Wal-Mart then summarizes the analysis from Ex parte Neese as granting summary judgment "based on the open and obvious nature of the element, where [the] plaintiff walked over the hazard 2-3 times, failing to exercise reasonable care to appreciate the hazard." (Id.) (citing Ex parte Neese, 819 So. 2d at 590).
However, the Court finds that Cummings and Ex parte Neese are distinguishable, and it rejects Wal-Mart's argument based on them. First, the Court will distinguish Cummings. Second, the Court will distinguish Ex parte Neese. Third, the Court will analyze the paragraph in which Wal-Mart analogizes this case to Cummings and Ex parte Neese and explain why Wal-Mart fails to show that summary judgment is proper.
As stated above, Wal-Mart quotes the following analysis from Cummings:
(Id.) (emphases added) (quoting Cummings, 2014 WL 3889953, at *6). The Court notes that this analysis could be read in two different ways since the last sentence is phrased in a way in which it could be read as standing on its own. If the last sentence is read on its own so that the rest of the paragraph is irrelevant to the Cummings court's finding that the hazard was open and obvious, then its analysis could be interpreted as stating the following: if "cashiers working some distance away should have been able to notice the . . . liquid on the floor," and if the liquid is "readily visible," then the plaintiff has failed to exercise reasonable care if she fails to see the liquid. However, the Court rejects this reading and finds that the last sentence cannot be read alone but must instead be read in the context of the entire paragraph. This is because the test—which is whether "an objectively reasonable person in [Ms. Lawson's] circumstances would have noticed and appreciated the dangerousness of [the liquid puddle]," see Johnson, 2016 WL 4585927, at *4, or, as the Cummings court phrased it, whether the plaintiff exercised reasonable care—is "fact intensive." Blizzard, 196 F. Supp. 2d at 1207; see also Emps.' Benefit Ass'n v. Grissett, 732 So.2d 968, 983 (Ala. 1998) (stating that "tort cases are . . . fact-intensive" and acknowledging that "reasonable care" is a "standard[]" and not a "concrete rule[]" that "cover[s] each fact situation specifically as it arises"). Accordingly, a broad statement that a hazard is "open and obvious" just because individuals should have been able to see it and because it was "readily visible" is inappropriate and fails to account for the fact-intensive analysis of whether "an objectively reasonable person in [the plaintiff's] circumstances would have noticed and appreciated the dangerousness of [the hazard]." See Johnson, 2016 WL 4585927, at *4. In fact, there are Alabama cases in which individuals should have been able to see the hazard and the hazard was "readily visible," but the hazard was still found not to be "open and obvious" because a "fact-intensive" analysis showed otherwise. See Kilic v. HVM, L.L.C., No. 12-801, 2013 WL 5347446, at *6 (M.D. Ala. Sept. 23, 2013) ("[T]he fact that the condition was in plain view does not automatically establish that it was open and obvious as a matter of law." (citing Blizzard, 196 F. Supp. 2d at 1208)); see also, e.g., Ryles v. Wal-Mart Stores East L.P., No. 04-334, 2004 WL 3711972, at *1, *5 (M.D. Ala. Dec. 16, 2004) (finding that a "brown box[]" that was "slightly larger than a shoe box" and was "resting on the white floor" was not "open and obvious"); Blizzard, 196 F. Supp. 2d at 1208 (finding that the hazard was not "open and obvious" even though the plaintiff "testified that[,] had she been watching where she was walking, the [hazard] would have been open and obvious"). Accordingly, to the extent that Wal-Mart's argument relies solely on the last sentence of the quoted paragraph from Cummings, the Court rejects the argument because it is inconsistent with Alabama law.
Alternatively, if the Cummings court's analysis is based on all the facts in the quoted paragraph—and, thus, if Wal-Mart's argument is based on the entire quoted paragraph—the Court still rejects the argument because it finds that Cummings is unpersuasive. Importantly, under Alabama law, there is a distinction between a plaintiff not "looking where she [is] walking"—in which case a court will very likely grant summary judgment based on the hazard being "open and obvious"—versus a plaintiff looking where she is walking but just "not looking down"—in which case a court will very likely not grant summary judgment based on the hazard being "open and obvious." Compare Harris, 2019 WL 650436, at *3, *5 (finding that the hazard was "open and obvious" when the plaintiff "was not looking where she was walking because she was trying to put on her sunglasses" and stating that the case was distinguishable from other cases in which the hazard was not found to be open and obvious when the plaintiff just "was not looking down" but was looking "forward"), and Browder v. Food Giant, Inc., 854 So.2d 594, 596, 598 (Ala. Civ. App. 2002) (finding that the hazard was "open and obvious" when the plaintiff stated that she "wasn't paying attention" and that "she does not normally look in front of her while walking"), and Bud's Outlet v. Smith, 781 So.2d 219, 223 (Ala. Civ. App. 2000) (finding that the hazard was "open and obvious" when the plaintiff "was distracted either by her grandson or by her daughter at the time of her fall"), with Arnold v. Wal-Mart Stores, Inc., No. 08-1021, 2009 WL 4827389, at *5 (M.D. Ala. Dec. 10, 2009) (failing to find that a liquid puddle was "open and obvious" because the plaintiff "testified that she was not looking at the floor because she was looking at the shelves, searching for a roasting pan[,]" and, thus, the plaintiff "could have been watching where she was going, but simply was not looking at the floor" (quoting Blizzard, 196 F. Supp. 2d at 1208; Ryles, 2004 WL 3711972)), and Ryles, 2004 WL 3711972, at *4-5 (failing to find that a hazard was "open and obvious" because the plaintiff was "browsing the produce in a grocery aisle" and "watching . . . the shelves" instead of the floor and, thus, "could have been watching where she was going, but simply [was] not looking at the floor" (quoting Blizzard, 196 F. Supp. 2d at 1208)), and Blizzard, 196 F. Supp. 2d at 1208 (failing to find that the hazard was open and obvious—even when the plaintiff "testified that[,] had she been watching where she was walking, the [hazard] would have been open and obvious" because "she could have been watching where she was going, but simply [was] not looking at the floor"), and Williams v. Bruno's Inc., 632 So.2d 19, 22 (Ala. 1993) (failing to find that the hazard was "open and obvious" when the plaintiff testified that he "was looking where [he] was going" but "wasn't looking [at] the floor" because he was "there to shop," and, thus, "[o]ne could reasonably infer from that testimony that [the plaintiff] was focusing his attention on the shelves, not that he was not looking where he was going").
In Cummings, the facts indicated that the plaintiff "was not watching her feet but was focused on eating her popcorn," 2014 WL 3889953, at *2, but the Cummings court never explicitly stated that it concluded that the plaintiff was not watching where she was going. However, as stated earlier, the Court finds that Cummings is unpersuasive for two alternative reasons. First, although the first part of the above-quoted fact only indicates that the plaintiff was not looking at the floor, the Court notes that the second part—that the plaintiff "was focused on eating her popcorn"—may have led the Cummings court to conclude that she was not watching where she was going. If this is true, then Cummings is factually distinguishable from this case, in which there is no evidence that Ms. Lawson was not watching where she was going, but, instead, only evidence that she was not looking down at the floor.
As stated above, Wal-Mart cites Ex parte Neese for the proposition that summary judgment should be granted "based on the open and obvious nature of the element, where [the] plaintiff walk[s] over the hazard 2-3 times, failing to exercise reasonable care to appreciate the hazard." (Doc. 20 at 94) (citing Ex parte Neese, 819 So. 2d at 590). However, the Court does not find Ex parte Neese persuasive for two alternative reasons: (1) it is factually distinguishable, and (2) alternatively, it answers a different question than the one relevant to this case.
First, Wal-Mart's characterization of Ex parte Neese and the facts material to its outcome is misleading because, as stated earlier, "the analysis of `slip and fall' cases under Alabama law is fact intensive," Blizzard, 196 F. Supp. 2d at 1207, and there were other facts relevant to the Ex parte Neese court's analysis besides those that Wal-Mart highlights. Most importantly, in Ex parte Neese, the plaintiff "had been visiting [the defendant's] house a few times a year for 18 years before the accident," and "the doormat [on which she fell] had been on the premises for 8 to 10 years." 819 So. 2d at 590. Further, during the time that the plaintiff fell, she described the weather "as a `monsoon.'" Id. Accordingly, the hazard in Ex parte Neese—which was an upside-down door mat that the plaintiff knew was on the premises and that was wet because of weather conditions known to the plaintiff—is different than the hazard in this case—which is a liquid puddle that was not usually on the checkout aisle and that was not caused by conditions known to Ms. Lawson. Accordingly, because of these differences, Ex parte Neese does little to help answer the question in this case: whether "an objectively reasonable person in [Ms. Lawson's] circumstances would have noticed and appreciated the dangerousness of [the liquid puddle]." See Johnson, 2016 WL 4585927, at *4. Further, even though the Ex parte Neese court did not discuss this fact in detail, it did note that the plaintiff "attribute[d] her fall to a `combination of the wet upside-down mat and turning to see what was going on.'" 819 So. 2d at 590 (emphasis added). Accordingly, because the plaintiff was "turning to see what was going on" when she slipped and fell, she was not looking where she was going when she fell. This further distinguishes Ex parte Neese from this case, in which, as stated above, there is evidence only that Ms. Lawson was not looking down at the floor, and there is no evidence that she was not watching where she was going.
Alternatively, based on the Ex parte Neese court's analysis, it appears that that court was trying to answer a slightly different question. To support its conclusion, the Ex parte Neese court cited Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158 (Ala. 1997), and stated that, in that case, the danger was open and obvious because "the plaintiff was aware of the presence of loose rocks on the defendant's property and should have recognized the danger they posed." Ex parte Neese, 819 So. 2d at 590 (citing Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158). Accordingly, because the Ex parte Neese court cited to a case in which the plaintiff was actually aware of the hazard and the question was whether she should have recognized the danger that the hazard posed, it appears that the Ex parte Neese court determined that the plaintiff in its case similarly was aware of the hazard and, thus, the issue it had to decide was whether she should have recognized the danger that the hazard posed. This is a slightly different question than the question in this case, in which it is undisputed that Ms. Lawson—or, an objectively reasonable person in her circumstances—would have recognized the danger of the liquid puddle. Instead, the question here is whether Ms. Lawson—or, an objectively reasonable person in her circumstances—should have noticed the liquid puddle. Cf. Johnson, 2016 WL 4585927, at *4 (stating that the inquiry is whether "an objectively reasonable person in [the plaintiff's] circumstances would have [1] noticed and [2] appreciated the dangerousness of [the hazard]" (emphasis added)). Accordingly, Ex parte Neese is unhelpful in answering the question at issue here.
Lastly, the Court will address the paragraph in which Wal-Mart analogizes this case to Cummings and Ex parte Neese. The Court notes that the reason it is addressing this paragraph separately even though it has already found that Cummings and Ex parte Neese are unpersuasive is because Wal-Mart refers to more facts than just those that are similar to the facts of Cummings and Ex parte Neese. Specifically, Wal-Mart argues as follows:
(Doc. 20 at 95) (first alteration in original) (emphasis added) (citation omitted) (citing Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1194 (Ala. 2002)).
The first two facts in the above-quoted paragraph convey that, similar to the facts of Cummings and Ex parte Neese, Ms. Lawson walked around the hazard multiple times and the hazard was readily visible to anyone who looked down. As discussed above, however, these facts and these similarities to Cummings and Ex parte Neese are not sufficient to grant Wal-Mart summary judgment because Cummings and Ex parte Neese do not stand for the proposition that those facts are sufficient. Instead, both Cummings and Ex parte Neese either had other facts that are not present here that were material (i.e., that the plaintiff in Cummings might not have been watching where she was going because she was focused on eating her popcorn and that the plaintiff in Ex parte Neese was aware of the presence of the mat and the conditions that made it wet and that she also might not have been watching where she was going because she was turning around) or are unpersuasive for other reasons that make any factual similarity moot (i.e., that, alternatively, Cummings is inconsistent with Alabama law and that, alternatively, Ex parte Neese, is answering a different part of the "open and obvious" inquiry). However, in the above-quoted paragraph, Wal-Mart also mentions other facts—namely, Ms. Lawson's "years of job training and experience of monitoring the floors of businesses for safety reasons" that were not present in Cummings and Ex parte Neese. (See id.) Accordingly, the Court will construe Wal-Mart's argument in this paragraph to be that the two facts that are similar to those of Cummings and Ex parte Neese—which, again, the Court has found are insufficient to grant Wal-Mart summary judgment—plus the additional fact of Ms. Lawson's "years of job training and experience of monitoring the floors of businesses for safety reasons" are sufficient to entitle Wal-Mart to summary judgment. However, the Court rejects this argument because Ms. Lawson's "years of job training and experience of monitoring the floors of businesses for safety reasons" are irrelevant, and, thus, this additional fact does not change the Court's finding that summary judgment is inappropriate.
More specifically, Ms. Lawson's job training and experience is irrelevant because the "open and obvious" inquiry is based on an
This can be seen more clearly in Ryles, 2004 WL 3711972. In Ryles, the plaintiff—Ms. Ryles—"tripped over a brown box" in a Wal-Mart grocery aisle. Id. at *1. The box that she tripped over was one of the "[b]oxes of merchandise [that] were arranged down the center of the aisle, waiting to be stocked." Id. Notably, Ms. Ryles had been "working at Wal-Mart [since] 1987, and, at the time of [the] incident [in 2002] which gave [rise] to [the] cause of action, was working as a sales associate" in the store. Id. In fact, the night the incident occurred, she had been working "until 10:30 or 11:00 p.m." and then, "[a]fter clocking out," walked over to the grocery aisle to shop for items. See id. "Wal-Mart's primary argument for dismissing the negligence claim [was] that the brown box constituted an [open and] obvious danger of which [Ms.] Ryles should have been aware had she been exercising ordinary care." Id. at *3. However, the Ryles court found that the "brown box did not, as a matter of law, constitute an open and obvious danger of which [Ms.] Ryles should have been aware." Id. at *5. Notably, despite the fact that she had been working for Wal-Mart for fifteen years before the incident—and, indeed had been working in the exact store in which the incident occurred right before it happened—the court never discussed Ms. Ryles's position with Wal-Mart when discussing whether the brown box was "open and obvious." See id. at *3-5. Instead, it treated Ms. Ryles purely as an objectively reasonable "customer." See id. at *4 ("[Ms.] Ryles was doing exactly what Wal-Mart would expect and hope its
Lastly, Wal-Mart does not cite any authority stating that Ms. Lawson's employment history, experience, knowledge, or training regarding monitoring floors for safety hazards is relevant to whether the liquid puddle was "open and obvious." Accordingly, the Court finds that Ms. Lawson's employment history, experience, knowledge, and training is irrelevant to the inquiry of whether the liquid puddle was "open and obvious." Thus, the Court continues to find that summary judgment is inappropriate.
Now that the Court has addressed Wal-Mart's argument based on Cummings and Ex parte Neese—which, again, is Wal-Mart's only explicit argument and the only argument supported with legal citations—it will now review Wal-Mart's list of material facts that it includes in its analysis section and address Wal-Mart's implicit argument that summary judgment should be granted on these facts. However, once again, the Court rejects Wal-Mart's argument.
More specifically, in the analysis section of the Motion, Wal-Mart argues that the following material facts show that the puddle was "open and obvious"
(Doc. 20 at 92-93). However, before addressing Wal-Mart's implicit argument based on these facts, the Court notes that these facts are not stated in the light most favorable to Ms. Lawson, and, thus, are inconsistent with the facts that are included in the Court's "Statement of Facts." Accordingly, the Court will revise Wal-Mart's list of material facts so that they are in the light most favorable to Ms. Lawson. More specifically, the Court must revise facts #1, 6, 7, 9, 11, and 13.
First, the Court notes that fact #1 and the first half of fact #11, which both deal with Ms. Lawson's past employment experience, knowledge, and training regarding monitoring the floor for hazards to customers, are irrelevant for the reasons explained previously.
Second, facts #6 and 9 are not stated in the light most favorable to Ms. Lawson. More specifically, fact #6 states as follows: "[Ms. Lawson] admits that she walked over the puddle on the floor twice before she slipped." (Id. at 92). Fact #9 states as follows: "Because the aisle is five feet wide, she necessarily had to be walking through it in flip flops as she pushed her cart toward the cash register, walked around the cart moving groceries from the cart onto the conveyor belt[,] and then exited the aisle to get salad dressing." (Id. at 93). However, these facts are not stated as they were proffered by Wal-Mart in its "Statement of Undisputed Relevant Material Facts" section in the Motion. Accordingly, the Court will replace them with facts #53 and 55 from Wal-Mart's "Statement of Undisputed Relevant Material Facts" (which are included in the Court's "Statement of Facts"):
See supra Part III; (doc. 20 at 82, ¶ 53; 83, ¶ 55); (see also id. at 77, ¶ 12) (stating that Ms. Lawson was wearing "flip flops").
Third, fact #7 also is not stated in the light most favorable to Ms. Lawson. Fact #7 states as follows: "[Ms. Lawson] walked from Aisle A to the checkout aisle on two different occasions and had a
Lastly, fact #13 is also not stated in the light most favorable to Ms. Lawson. Fact #13 states as follows: "On all three occasions she walked over the area, nothing was blocking her view." (Doc. 20 at 93). However, Ms. Lawson testified that "when [she] initially went up to the register, it's very possible that [her] [shopping] cart could have been over [the puddle] or the handle [of the cart] could have been over it." See supra Part III; (doc. 20 at 37:123). Further, there is no evidence that the shopping cart moved while Ms. Lawson was unloading groceries before she went to get the salad dressing. Instead, the only evidence regarding the shopping cart being moved is Ms. Lawson's testimony that, "as well as [she] can remember," "[w]hen [she] got back to aisle ten, . . . [her] [shopping] cart . . . [had been] pushed up . . . [m]aybe five additional feet." See supra Part III; (doc. 20 at 31:99). Accordingly, viewing the facts in the light most favorable to Ms. Lawson, her shopping cart may have been blocking her view of the puddle during the first two occasions that she walked over the area.
Accordingly, the material facts highlighted by Wal-Mart in the Motion—as they were just revised—are as follows:
(Doc. 20 at 92-93) (revised as stated above).
Upon considering all the facts included in the its "Statement of Facts," including the material facts highlighted by Wal-Mart in the Motion and which are quoted as revised above, the Court—viewing the facts in the light most favorable Ms. Lawson—rejects Wal-Mart's implicit and unsupported argument that, based on these facts, the liquid puddle was "open and obvious" as a matter of law.
Second, the Court is persuaded by the factual similarity of this case to Humphrey and the Humphrey court's decision to reject the defendant's "open and obvious" argument and, thus, to deny summary judgment. More specifically, the facts in Humphrey were as follows:
Id. at *1 (citations and footnote omitted).
Accordingly, the facts of Humphrey are very similar to the facts here, with the exception that Ms. Lawson—unlike the plaintiff in Humphrey—walked through the area containing the liquid puddle multiple times. However, the Court is not persuaded that this difference changes the outcome of this case for two reasons. First, Wal-Mart cites no case saying that this fact—that the plaintiff walked over the area and the puddle multiple times—is sufficient to grant summary judgment when, in its absence, the other facts would be insufficient to grant summary judgment. This is because, as stated earlier, the two cases that Wal-Mart cites where the plaintiff walked around the hazard multiple times before falling—Cummings and Ex parte Neese—had other key facts that made summary judgment appropriate.
Second, here, although Ms. Lawson walked around the area of the puddle twice before she fell, the facts indicate that, on both times, she "did not slip or slide." See supra Part III; (doc. 20 at 79, ¶ 37; 80, ¶ 40). Further, Wal-Mart has not proffered any facts showing that anything happened during those two occasions to make Ms. Lawson aware of the puddle, such as, for example, there being a splashing sound or Ms. Lawson's feet becoming wet. Accordingly, the only way that Ms. Lawson—or, "an objectively reasonable person in [her] circumstances," see Johnson, 2016 WL 4585927, at *4—would have noticed the puddle on those two occasions is if she had looked down. However, as the Court stated earlier, there is a distinction between a plaintiff not "looking where she [is] walking"—in which case a court will very likely grant summary judgment based on the hazard being "open and obvious"—versus a plaintiff looking where she is walking but just "not looking down"—in which case a court will very likely not grant summary judgment based on the hazard being "open and obvious." Here, because the facts indicate that Ms. Lawson was just not looking down at the floor—and do not indicate that she was not watching where she was going—the Court cannot find that the puddle was "open and obvious" as a matter of law. Thus, summary judgment is inappropriate. See, e.g., Ryles, 2004 WL 3711972, at *4 (denying summary judgment in part because the plaintiff "could have been watching where she was going, but simply [was] not looking at the floor" (emphasis added) (quoting Blizzard, 196 F. Supp. 2d at 1208)); Blizzard, 196 F. Supp. 2d at 1208 (same).
In the Motion, Wal-Mart argues that it should be granted summary judgment on Ms. Lawson's wantonness claim. The Court will first discuss the "wantonness" standard on which its analysis relies. Then, the Court will address Wal-Mart's arguments and Ms. Lawson's response to them.
"Under Alabama law[,] `wantonness' is defined as the `doing of some act or something with reckless indifference to the consequences' or `a failure or omission to do something, with reckless indifference to the consequences.'" Blankenship v. Baker Foods, Inc., No. 17-345, 2018 WL 6725326, at *4 (N.D. Ala. Dec. 21, 2018) (quoting Weatherly v. Hunter, 510 So.2d 151, 152 (Ala. 1987)).
Here, Wal-Mart argues, inter alia, that it should be granted summary judgment on the wantonness claim because "[t]here is no evidence [that] Wal-Mart possessed the requisite level of consciousness to establish wantonness as a matter of Alabama law." (Doc. 20 at 98). More specifically, Wal-Mart argues as follows:
(Id. at 97-98).
In response, Ms. Lawson does not dispute Wal-Mart's argument but, instead, only states that "she is in need of additional discovery with respect to the elements of her claim for wantonness" and that she "incorporates by reference her [Motion To Reopen Discovery]." (Doc. 25 at 18). However, the Court notes that it has already denied her Motion To Reopen Discovery and incorporates by reference its Order of denial. (See doc. 26). Further, upon its review of the facts, the Court notes that there is no evidence of wantonness on the part of Wal-Mart. More specifically, "[n]othing in the record points to a conscious disregard of a known danger." Blankenship, 2018 WL 6725326, at *4. "In fact, [as Wal-Mart points out, Ms. Lawson] testified during her deposition that she did not believe the store employees intended to cause her injuries." Id. Accordingly, the wantonness claim "fails as a matter of law," id., and summary judgment will be granted on this claim.
For the reasons stated above, it is hereby
The Court notes that Wal-Mart's argument in its reply brief—which is that Ms. Lawson fails to dispute the fact that she "looked down at the floor once she entered the checkout aisle" (id.)—is problematic. This is because it contradicts Wal-Mart's proffered fact that Ms. Lawson "did not look down at the floor once she entered the checkout aisle" (doc. 20 at 79, ¶ 34) (citing id. at 29:90, 92), and, thus, Wal-Mart is taking inconsistent positions on whether Ms. Lawson looked down at the floor once she entered the checkout aisle. While the Court believes that Wal-Mart may have made a typographical error in its reply brief, the Court need not consider this possibility because the evidence, viewed in the light most favorable to Ms. Lawson, supports Wal-Mart's proffered fact and does not support Ms. Lawson's response in her opposition. Accordingly, the Court has included Wal-Mart's proffered fact as it is stated in the Motion.
More specifically, the relevant lines from Ms. Lawson's deposition are as follows:
(Id. at 29:90, 92) (emphases added). Accordingly, the deposition—when read in the light most favorable to Ms. Lawson—establishes two facts: (1) Ms. Lawson looked down at the floor on aisle 10 when she first turned to enter that aisle, and (2) Ms. Lawson did not look at the floor again when she was on aisle 10. Thus, the deposition supports Wal-Mart's proffered fact that "[Ms. Lawson] did not look down at the floor once she entered the checkout aisle" (id. at 79, ¶ 34) (citing id. at 29:90, 92), and it contradicts Ms. Lawson's response in her opposition to the Motion that she did "look[] down at the floor when on `aisle 10[.][`]" (Doc. 25 at 4, ¶ 34) (citing doc. 20 at 29:92). Further, the Court notes that the other part of Ms. Lawson's response—that, "[a]s [she] entered `aisle [10][,]' she looked down at the floor" (id. at 4, ¶ 34) (citing doc. 20 at 29:90)—is supported by the deposition, but it does not need to be included here as an additional fact because this information is already conveyed by the facts included earlier in this paragraph. Accordingly, as stated earlier, the Court will include Wal-Mart's proffered fact as it is stated in the Motion and will not include any additional facts regarding Ms. Lawson's failure to look down at the floor once she entered the checkout aisle.
First, Wal-Mart argues that "[Ms. Lawson] provides nothing by way of evidence to controvert the statement that [she] did not look down at the floor when she walked back over the same area to leave the checkout aisle." (Doc. 27 at 2, ¶ 40). The Court rejects this argument because Wal-Mart fails to understand that, as the moving party, it must first support its version of this fact with
Second, Wal-Mart argues that "[Ms. Lawson]'s testimony that she has no independent memory of looking down at the floor is the equivalent of saying she did not look down at the floor for purposes of considering [the Motion]."(Doc. 27 at 2, ¶ 40). However, Wal-Mart cites no legal authority in support of its argument. Accordingly, this issue is waived. Patrick v. City of Birmingham, No. 09-1825, 2010 WL 11468979, at *2 (N.D. Ala. Oct. 28, 2010) ("[T]he failure to reference any legal authority constitutes an undeveloped argument and waives the issue." (citing Flanigan's Enters., Inc. v. Fulton Cty., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (holding that a party waives an argument if the party "fail[s] to elaborate or provide any citation of authority in support" of the argument); Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument made without citation to authority is insufficient to raise an issue before the court))). Further, the Court notes that Wal-Mart's position is contrary to the standard that the Court must "view[] the facts and inferences in the light most favorable to the non-moving party." Johnson v. Cty. of Paulding, No. 18-14994, 2019 WL 3064877, at *1 (11th Cir. July 12, 2019) (citing United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004)).
Third, Wal-Mart argues that "[Ms. Lawson] offers no testimony that she, in fact, looked down at the floor when she entered the checkout aisle the second time."(Doc. 27 at 2, ¶ 40). The Court rejects this argument because it is irrelevant. The factual issue here is not whether Ms. Lawson "looked down at the floor when she entered the checkout aisle the second time." Instead, the factual issue is whether Ms. Lawson looked down at the floor when she left the checkout aisle to go get salad dressing. While the Court notes that Ms. Lawson's response in her opposition to the Motion may have contributed to Wal-Mart's confusion—since Ms. Lawson cited evidence stating that she "[does] [not] have an independent memory of looking down at the floor" on either occasion (see doc. 25 at 4, ¶ 40) (citing doc. 20 at 30: 95, 31: 98)—this does not change the fact that Wal-Mart's third argument—along with Ms. Lawson's cited evidence regarding the second factual question of whether she looked down when she entered the checkout aisle for the second time—is irrelevant to the first factual question of whether she looked down when she left the checkout aisle to go get the salad dressing.
Accordingly, the Court rejects all three of Wal-Mart's arguments. Thus, the Court will use the version of this fact as stated in the deposition and not as proffered by Wal-Mart. Further, the Court wishes to make two observations of its own. First, on a related factual issue that was discussed in the previous paragraph—the question of whether Ms. Lawson looked down when she entered the checkout aisle for the second time—she similarly testified during her deposition that she "[does] [not] have an independent memory of looking down at the floor." (Doc. 20 at 31:98). However, Wal-Mart accurately proffers this fact as stated in Ms. Lawson's deposition (see id. at 80, ¶ 43) ("She does not recall looking down at the floor when she turned onto the checkout aisle from Aisle A." (citing id. at 31:98, 33:105-06)) instead of trying to use this evidence to state that Ms. Lawson definitely "did not look down at the floor." Accordingly, Wal-Mart's three arguments that the Court addressed above are less persuasive because of Wal-Mart's internal inconsistency in the Motion: if Ms. Lawson's deposition testimony that she "[does] [not] have an independent memory of looking down at the floor" really should be treated as "the equivalent of saying [that] she did not look down at the floor for purposes of considering [the Motion]" (see doc. 27 at 2, ¶ 40), then it is confusing that Wal-Mart only treated this testimony in this manner for the first factual issue of whether Ms. Lawson looked down when she left the checkout aisle to go get salad dressing and not for the second factual issue of whether Ms. Lawson looked down when she entered the checkout aisle for the second time. Second, the Court notes that its decision to use the version of this fact as cited in the deposition—that Ms. Lawson "[does] [not] have an independent memory of looking down at the floor" (doc. 20 at 30:95)—instead of the version of this fact as proffered by Wal-Mart—that "[s]he did not look down at the floor when she walked back over that same area to leave the checkout aisle[]" (id. at 80, ¶ 40)—does not affect its analysis.
Further, the Court notes that, later in her deposition, Ms. Lawson testified that she was actually "not sure" how far her cart had been moved up. (Doc. 20 at 33:105). However, because Wal-Mart never disputed the underlying fact that Ms. Lawson's shopping cart was pushed forward by approximately five feet—and, instead, only disputed whether this was Ms. Lawson's actual observation or whether it was only a recollection—this is deemed to be admitted per the Court's Uniform Initial Order (doc. 2). (See id. at 18) ("All facts set forth in the statements required of the opposing parties will be deemed to be admitted for summary judgment purposes unless controverted in the manner required herein by the statement of the opposing party." (italics omitted)). However, the Court notes that this difference—whether Ms. Lawson's cart was pushed forward by five feet or by some undetermined distance—does not affect its analysis.
The Court notes that the relevant part of Ms. Lawson's deposition is as follows:
(Doc. 20 at 37:122-23) (emphases added). Accordingly, Wal-Mart is correct that Ms. Lawson testified that "[she] just didn't see [the puddle]." (Id. at 37:122). Further, Ms. Lawson's testimony that her shopping "cart could have been over" the puddle when she "
Accordingly, the Court has included Wal-Mart's proffered fact exactly as it is stated in the Motion. However, because Ms. Lawson's additional facts are relevant, the Court has also included the relevant part of her deposition in the next sentence.
Further, for the following three reasons, the Court is not persuaded that any of the cases that Wal-Mart cites overcomes the clear language of the Supreme Court of Alabama in Dolgencorp, Inc. First, the Court is not persuaded by Lamson & Sessions Bolt Co., Jones Food Co., Sessions, or Blalock because these four cases were decided before Dolgencorp, Inc. Second, the Court is not persuaded by Waters because it relies solely on pre-Dolgencorp, Inc., cases for its discussion of the "open and obvious" defense as the negation of a duty. See Waters, 130 So. 3d at 1222-23. Third, the Court is not persuaded by Hooks for the following two reasons: (1) it relies solely on Blalock—which is a pre-Dolgencorp, Inc., decision—for the proposition that recent cases suggest that the "open and obvious" defense is the negation of a duty, and (2) even though it hinted that the "open and obvious" defense is the negation of a duty instead of an affirmative defense, it never actually "decide[d] the issue." Hooks, 2015 WL 6964289, at *5 n.7.
Lastly, the Court notes that recent cases have referred to the "open and obvious" defense as an affirmative defense. See, e.g., Gray v. L.B. Foster Co. Inc., 761 F. App'x 871, 873 (11th Cir. 2019) ("An argument that a danger was open and obvious is an
See supra Part III; (doc. 20 at 82, ¶ 53; 83, ¶ 55). However, these two sets of facts are not inconsistent because it is possible that Ms. Lawson walked through part of the puddle and that the front part of her shopping cart was also covering part of the puddle.
