KRISTI K. DuBOSE, District Judge.
This matter is before the Court on Defendant's motion for summary judgment (Docs. 16-18, 31), Plaintiff's Response (Doc. 39), and Defendant's Objection and Reply (Docs. 40, 41).
This federal diversity case stems from pro se Plaintiff Brenda Taite (Taite)'s shopping trip to a Monroeville, Alabama Wal-Mart, where she was allegedly bitten by a spider. Specifically, on July 10, 2014, while shopping for frozen strawberries in the frozen food aisle, Taite felt something crawl across her leg and bite her. She looked and saw that something had indeed bitten her right ankle. (Doc. 17-1 (Dep. Taite 50-52)). By the time Taite was checking out, she could "hardly walk," was unable to load her groceries onto the belt, and needed assistance carrying her groceries to her car. (
On August 5, 2014, Taite telephoned an individual named Noel Visor at the Wal-Mart store in question, notifying Visor that she had been bitten by something in the store. (Doc. 17-1 (Dep. Taite at 84)). On August 7, 2014, a Wal-Mart Customer Incident Report was completed and signed by Taite. Therein Taite described the incident as follows: "went through produce then to frozen fruits standing by frozen fruits felt something bite on right ankle took shoe of[] then went get other items but kept taking foot out of shoe left because was in so much pain. Went to emergency room at 2:15." (Doc. 17-2; Doc. 17-1 (Dep. Taite at 57-58)). Taite did not mention a spider in the incident report. (Doc. 17-1 (Dep. Taite at 58-59)). On August 22, 2014, Wal-Mart's claims representative, Claims Management, Inc., notified Taite that its investigation revealed no negligence by Wal-Mart, and it was denying her claim. (Doc. 39-4).
On November 21, 2014, Taite was seen at the University of South Alabama by neurologist Dr. Bassam A. Bassam (Dr. Bassam) for a consultation concerning a right foot drop. (Doc. 39-1). This is the first mention of a spider bite in her medical records, as provided by Taite in her medical history. Dr. Bassam diagnosed her with a "[p]robable residual partial right peroneal neuropathy, subsequent to spider bite and leg swelling on 07/10/2014, as per patient's provided in clinical history." (Doc. 39-1 at 3). On December 8, 2014 a nerve conduction study and EMG were performed By Dr. Bassam at the University of South Alabama and the conclusion was that the study of the right lower extremity was significantly limited due to Taite's overweight and poor tolerance of the procedure but the "findings are consistent with moderately severe chronic common right peroneal neuropathy, most likely at the knee." (Doc. 39-1 at 4-5).
On August 25, 2014, Taite sued Wal-Mart in the Circuit Court for Monroe County, Alabama. (Doc. 1-1). Wal-Mart removed the case to this Court. (Doc. 1). Taite filed an Amended Complaint asserting one (1) count, alleging Wal-Mart was negligent because it failed to: 1) properly supervise the common areas to provide a safe walking area free from hazards; 2) maintain shopping aisles in a safe condition to guard against insect bites; 3) properly inspect the store aisles; and 4) maintain the premises in a good and safe condition. (Doc. 5). Taite denies any contributory negligence on her part. Taite seeks $74,999 in medical expenses, and claims to have continued pain in her right leg with a damaged nerve, and that she suffers from "drop foot" — asserting "[s]he may, and probably will for an indefinite time in the future be deprived of ordinary pleasures of life, loss of well-being, and equanimity[]" and "[h]er overall health, strength, and vitality has been greatly impaired." (Doc. 5 at 2-3; Doc. 39 at 3). Taite also now claims that she was bitten, specifically, by a black widow spider. (Doc. 39 at 3).
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a) (Dec. 2010). The recently amended Rule 56(c) provides as follows:
FED.R.CIV.P. Rule 56(c) (Dec. 2010).
Wal-Mart, as the party seeking summary judgment, bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact."
To establish negligence, Taite must prove that: 1) Wal-Mart owed her a duty of care; 2) Wal-Mart breached that duty; 3) she suffered a loss or injury; and 4) Wal-Mart's negligence was the actual and proximate cause of her injury.
Wal-Mart is the premises owner. Taite, a shopper at Wal-Mart, was a business invitee of Wal-Mart.
Additionally, "[t]here is no presumption of negligence which arises from the mere fact of an injury to an invitee[,]"and a premises owner is not an insurer of the safety of its invitees.
However, even where there is no admissible evidence indicating that a premises owner had actual or constructive knowledge of a defective condition, such knowledge is not required in all circumstances.
Concerning the first element, a duty existed as Wal-Mart owed to Taite the duty of care of that of premises liability owner (here a private business/store owner) to a business invitee.
As to the second element, Taite alleges only a subjective belief that Wal-Mart breached its duty of care. Specifically, a factfinder would have to adopt Taite's speculation that a spider bit her and that the spider was present in the store and not brought in on Taite's clothing or person. However, a plaintiff's speculation about the cause of an injury is insufficient to overcome summary judgment.
Next, a factfinder would have to find that Wal-Mart failed to perform reasonable inspections for or maintenance against pests. Taite has presented no evidence of such failure by Wal-Mart. Moreover, the only evidence before the court is that this store was serviced by a pest control company approximately 10 days before the incident. (Doc. 17, Exhibit C and D). Taite again merely speculates that the spider was from the fresh produce or perhaps crawled out from between the freezers. Taite simply roots her claim that Wal-Mart breached its duty on "[t]he [mere] fact that I was bitten." (Doc. 17-1 (Dep. Taite at 107)). Holding defendants liable in cases of mere speculation "would render premises owners virtual insurers of others' safety and would impose liability that is nearly absolute."
In contrast to Taite's speculation, the evidence submitted by Wal-Mart supports a finding that there are no issues of material fact with regard to breach of its duty. As explained by Wal-Mart (Doc. 17 at 7):
(
The Ecolab Pest Control report shows that Wal-Mart received a pest control service on June 20, 2014 — i.e., that the store had been serviced/exterminated less than one (1) month prior to the incident. The Interrogatory Responses include a "verification" from Haynes (Store Manager and the corporate representative) (Doc. 17-3 at 12), and Interrogatory Responses #3 and #5 state that "Wal-Mart has received no other complaints about spiders" prior to Taite's alleged incident. (Doc. 17-3 at 4). In sum, there is no evidence that Wal-Mart breached its duty, such that Taite's claim fails on this second element.
Nevertheless, even assuming arguendo that Taite established Wal-Mart's breach of duty of care, her claim also fails for lack of causation because she has not established that Wal-Mart's negligence was the actual and proximate cause of her injury.
Specifically, Taite has submitted medical records, which she asserts show her treatment for the alleged spider bite and her continued medical issues stemming from same. At the outset, the medical records are sparse — showing only a few occasions of treatment since the July 2014 alleged spider bite and with treatment concluding on December 8, 2014 (i.e., it is unclear how she is continuing to suffer pain/injuries when there is no evidence that she has been treated in over 10 months). Additionally, the records show that Taite sought treatment not for a spider bite on her right ankle but for "leg pain" at the Emergency Room the day of the incident. And thereafter, there is no mention in the medical records of any bite, spider or otherwise, until November 21, 2014, when she self-reported a spider bite as part of her history. Moreover, the medical records do not support treatment for a spider bite as injuring her right foot/ankle (the location of the alleged bite). Rather, the records indicate that Taite has undergone medical treatment related to issues stemming from her total knee replacement and surgical removal of part of her femur, with a conclusion in December of 2014 that she has "moderately severe chronic common right peroneal neuropathy, most likely at the knee." As alleged, Taite was not bitten on the knee or leg, but on the right ankle. Taite has thus provided insufficient evidence linking her medical treatment to the alleged spider bite on July 10, 2014, to support causation. Thus, Taite has not provided substantial evidence relating any of her claimed injuries to the alleged spider bite at Wal-Mart. As such, because Taite cannot establish causation, Wal-Mart's motion for summary judgment is due to be granted.
Based on the foregoing, it is
A Final Judgment shall issue in conjunction with this Order.