S. THOMAS ANDERSON, District Judge.
Before the Court is Defendant Kroger Limited Partnership I's Motion for Summary Judgment (D.E. # 27) filed on September 16, 2014. Plaintiff Tyania Jackson filed a response in opposition to Defendant's Motion on October 10, 2014. For the reasons set forth below, Defendant's Motion for Summary Judgment is
The following facts are not in dispute for purposes of this Motion unless otherwise noted. On November 20, 2012, Plaintiff Tyania Jackson and her mother, Patricia Monger ("Ms. Monger"), were customers at Defendant's grocery store, located at 2632 Frayser Boulevard, Memphis, Tennessee 38127. (Def.'s Statement of Undisputed Facts ¶ 1; Pl.'s Statement of Add'l Facts ¶ 1-2.) While shopping in the juice aisle of the store, Plaintiff slipped and fell on a clear liquid. (Pl.'s Statement of Add'l Facts ¶ 5.) The parties dispute whether Defendant had notice of the clear liquid's presence on the floor. Plaintiff asserts that, upon witnessing her fall, a security guard at Defendant's store, who was an off-duty police officer, came to the scene of the incident and helped Plaintiff from the floor. (Id. at ¶ 6.)
In its Motion for Summary Judgment, Defendant argues that Plaintiff cannot establish all of the elements of her premises liability claim. Defendant contends that Plaintiff cannot prove that Defendant had actual notice or constructive notice of the existence of a dangerous condition on the premises before Plaintiff's fall. Specifically, Defendant states that there is no evidence of Defendant's knowledge of the existence of a clear liquid on the floor of the juice aisle on November 20, 2012. Plaintiff testified in her deposition that she has no knowledge regarding whether Defendant had knowledge of the liquid's presence on the floor. For this reason, Plaintiff has failed to adduce evidence of Defendant's knowledge of a dangerous condition on the premises.
In her response in opposition, Plaintiff argues that questions of fact remain that should preclude summary judgment in this case. Plaintiff cites the affidavit of Ms. Monger, asserting that Defendant had actual notice of the liquid's presence on the floor because its security guard, an off-duty police officer who helped Plaintiff from the floor after her fall, told Ms. Monger that he notified another employee of Defendant of the liquid's presence on the floor and told that employee to clean up the liquid. Plaintiff also argues that Defendant had constructive notice of the liquid's presence because numerous slip and falls have occurred in Defendant's store. According to Plaintiff, nineteen slip and falls have occurred in Defendant's store in the past two and a half years—two of which occurred in the juice aisle. This number of incidents is enough to establish a recurring incident and proves constructive notice. For these reasons, Plaintiff argues that she has produced sufficient evidence to create issues of fact about this element of her premises liability claim.
Federal Rule of Civil Procedure 56(a) provides that a party is entitled to summary judgment if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
When determining if summary judgment is appropriate, the Court should ask "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
Under Tennessee law, Plaintiff must prove the following elements in order to make out a prima facie case of negligence: (1) Defendant owed her a duty of care; (2) Defendant's conduct fell below the applicable standard of care; (3) Plaintiff suffered an injury; (4) Defendant's conduct was the cause-in-fact of Plaintiff's injury; and (5) Defendant's conduct was the proximate or legal cause of Plaintiff's injury.
The Court holds that a triable issue exists in this case concerning Defendant's actual notice of a dangerous condition. Plaintiff has adduced evidence that the presence of a clear liquid on the floor created a dangerous condition on Defendant's business premises. Plaintiff has further shown that Defendant had notice of this dangerous condition because its security guard told another employee to clean up the liquid prior to Plaintiff's fall.
It is true that Plaintiff must support her claim with relevant, admissible evidence. Ms. Monger's testimony regarding the security guard's statements is arguably inadmissible hearsay. Federal Rule of Evidence 801(c) defines hearsay as "a statement that the declarant does not make while testifying at the current trial or hearing, and a party offers in evidence to prove the truth of the matter asserted in the statement."
For the purpose of summary judgment, however, the Court holds that questions of fact remain on this issue. Therefore, Defendant's Motion for Summary Judgment must be denied.
Plaintiff also alleges that Defendant is liable pursuant to a constructive notice theory. In Tennessee, "plaintiffs may prove that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence."
Having held that an issue of fact remains about whether Defendant had notice of a dangerous condition on the premises, Defendant is not entitled to judgment as a matter of law. Therefore, Defendant's Motion for Summary Judgment is