RICHARD W. STORY, District Judge.
This case comes before the Court on Defendants' Motion for Summary Judgment [Dkt. 23]. The Court has reviewed the record, and for the reasons below, the Motion is
In this slip-and-almost-fall case, Plaintiff Deborah Allen claims that Defendant Wal-Mart caused her injury when she slipped on a puddle of clear liquid at its store. Wal-Mart disagrees. It now moves for Summary Judgment, arguing that based on the evidence presented, it cannot be held liable as a matter of law.
The facts—which for the reasons outlined in the discussion below are undisputed—show the following: Ms. Allen was shopping on the cereal aisle at her local Wal-Mart store when she slipped on something wet. She caught herself on the shopping cart she was holding and didn't fall. No store employees were around, so she called the store and had an employee come look at the spot. There was a small puddle of clear, odorless liquid. She was about halfway down the aisle, a distance she later estimated at 30-40 feet from the aisle entrance. The employee took pictures. The liquid—presumably water, though it cannot be said for sure— was invisible in the pictures.
The cereal aisle cannot be seen from Wal-Mart's video, but the intersecting main aisle can. Ms. Allen entered the cereal aisle at around 6:46 P.M. Some twenty-three minutes before, at approximately 6:23 PM, an employee walked by the cereal aisle, conducting a visual inspection as she passed. She later stated that when she inspected the area, there were "no spills or liquids on the floor." Had there been, she would have removed them, in accordance with the store's safety policies and procedures. Another employee had made a similar inspection eight minutes earlier, at approximately 6:15 PM, and he said the same thing.
The standard for summary judgment is well-established. Summary judgment must be granted "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). A fact is material if proof of its existence or nonexistence would affect the outcome of the case under controlling substantive law.
Ordinarily, in conducting its review at summary judgment, the court "consider[s] the record and draw all reasonable inferences in the light most favorable to the non-moving party."
The pertinent requirement of Local Rule 56.1 is that the respondent to a summary judgment motion must file a response to the movant§s statement of undisputed facts which sets forth, as to each numbered undisputed fact that the respondent is contesting, "specific citations to evidence (including page or paragraph number)" that support the respondent's version of the facts. LR 56.1(B)(2)(a)(2). In the absence of such specific citations to evidence, the court "will deem each of the movant's facts as admitted."
The Rule is not a mere formality. Rather, it is considered "both a sanction for the parties and a balm for the district court: the parties are given an incentive to conform to the rule (provided they wish to have their version of the facts considered), and the district court is in any case relieved of the obligation to ferret through the record."
Here, as Wal-Mart correctly notes in its Reply, Ms. Allen failed to cite to any evidence in her Response to the Statement of Material Facts [Dkt. 30]. Instead, she merely replied with a one-word "Admitted" or "Denied." Therefore, per the terms of Local Rule 56.1(B)(2)(a)(2), the Court deems each of the facts set out by Wal-Mart as admitted.
In any event, the discrepancy is not so great. Ms. Allen admitted to all of the facts set out by Wal-Mart except those related to the inspections. And concerning those inspections, still the distinctions are narrow. Wal-Mart does not contend that either employee entered the cereal aisle where Ms. Allen fell. Instead, it claims that the employees "inspected" the area from the intersecting aisle. This claim is supported by affidavits from the employees. [Dkts. 23-6, 23-7]. Ms. Allen argues in her Response that it is not clear from the video that the employees actually turned to look down the aisle they claimed to inspect. [Dkt. 29 at 6-7]. Because she admitted to Wal-Mart's facts, however, the Court credits the affidavits and finds that the employees did "inspect" the aisle from their vantage point.
Still, even when the facts are deemed admitted, summary judgment does not automatically follow. Instead, "[t]he movant . . . continues to shoulder the initial burden of production in demonstrating the absence of any genuine issue of material fact, and the court must satisfy itself that the burden has been satisfactorily discharged."
That burden is particularly relevant here, because the remaining issues concern the inferences to be drawn from the facts, rather than the facts as stated (which, again, are not in dispute). In particular, Wal-Mart asks the Court to draw two inferences as a matter of law: first, it contends that, because the liquid was clear, the liquid could not have been discovered by a reasonable inspection. Second, it contends that the inspections, which were carried out 31 and 23 minutes before Ms. Allen slipped, were in fact reasonable.
Ms. Allen does not respond to the former contention; and her dispute about the latter centers more on the fact of whether the employees looked rather than the reasonableness of the inspection. Essentially, having admitted to the underlying facts, she does not respond at all to these arguments. So it is particularly appropriate here for the Court to treat the Motion as unopposed, as
"To prevail on a slip-and-fall claim, the plaintiff must show: (1) that the premises owner had actual or constructive knowledge of the hazard, and (2) that the plaintiff lacked knowledge of the hazard, despite an exercise of ordinary care, because of actions or conditions within the owner's control."
As to that element, there is no evidence, nor does Ms. Allen contend, that Wal-Mart had actual knowledge of the hazard. So the Court turns to constructive knowledge, which can be shown in one of two ways:
In that regard, Wal-Mart raises two reasons for which it contends summary judgment is warranted: the invisible nature of the hazard, and the reasonableness of the inspection. These are addressed in turn below. In considering them, the Court is guided by the practical consideration that the "`routine' issues of premises liability, i.e., the negligence of the defendant and the plaintiff . . . are generally not susceptible of summary adjudication."
Wal-Mart's first argument focuses not so much on the time the hazard was present—despite the temporal language evident in the second prong—as with the nature of the hazard itself. It argues that because the liquid was clear and effectively invisible (it was presumably water, but the evidence does not say for sure), no reasonable inspection could have discovered it, regardless of the amount of time. In so doing, Wal-Mart draws on a line of cases tracing to
In
As the Georgia Court of Appeals recently illustrated, the
The margins between
In a recent case in this district, Judge Cohen addressed essentially the same issue—a puddle of water in a Wal-Mart store.
For its second argument, Wal-Mart says it did not have constructive knowledge because its employees carried out reasonable inspections. A defendant's constructive knowledge can be inferred if "there is evidence that the owner lacked a reasonable inspection procedure."
"The reasonableness of an inspection procedure depends on the nature of the business, the size of the store, and the number of customers."
The Court holds that the procedures here—essentially, looking down the aisle from a cross-aisle—are reasonable for Wal-Mart under the circumstances.
Because the Court cannot infer constructive knowledge, for Ms. Allen to prevail, she would need to affirmatively show that the hazard existed for an unreasonably long time. However, she cannot prove how long it was present. Indeed, she admits as much—she does not know who spilled the liquid or when they did so. And based on the evidence of the inspections, the liquid was there for 23 minutes at most. That is within a range typically held to be reasonable.
Ms. Allen has failed to raise a genuine dispute concerning Wal-Mart's knowledge of the hazard. Accordingly, her claim fails as a matter of law.
For the foregoing reasons, Defendant Wal-Mart's Motion for Summary Judgment [Dkt. 23] is