Kreig v. Wal-Mart Stores, Inc.

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KARL KREIG, Plaintiff, v. WAL-MART STORES, INC., Defendant.

Civil Action No. 3:21-CV-00074

United States District Court, M.D. Pennsylvania

January 3, 2023

MEMORANDUM

KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE

Plaintiff Karl Kreig (“Kreig”) initiated this action by filing a complaint in the Court of Common Pleas for Lackawanna County, Pennsylvania, on December 4, 2020, seeking damages against Defendant Wal-Mart Stores, Inc. (correctly “Wal-Mart Stores East, L.P.,” herein “Wal-Mart”) arising out of an alleged slip and fall incident on June 18, 2022. (Doc. 11). On January 12 2021, Wal-Mart removed this action to the United States District Court for the Middle District of Pennsylvania. (Doc. 1). In the complaint, Kreig alleges that WalMart was negligent by failing to properly maintain the men's restroom in a reasonably safe condition, resulting in Kreig's alleged slip and fall as a result of a wet floor. (Doc. 1-1, at 4). On February 23, 2021, the parties having informed the Court in their case management plan filed on February 23, 2021, of their consent to jurisdiction by a United States Magistrate Judge, the Court reassigned this action to the undersigned for all pretrial and trial proceedings in this case. (Doc. 5; Doc. 6). On April 6, 2021, the Court referred this case to medication. (Doc. 9). On September 1, 2021, the mediator filed a report with the Court indicating that settlement was not reached. (Doc. 12).

Pending before the Court is a motion for summary judgment filed by Wal-Mart on March 10, 2022. (Doc. 13). Wal-Mart asserts that Kreig fails to establish that Wal-Mart had notice of the alleged dangerous condition which caused Kreig to allegedly slip and fall. (Doc. 14, at 11). For the reasons stated herein, Wal-Mart's motion for summary judgment will be DENIED. (Doc. 13).

I. Background and Procedural History

This factual background is taken from the parties' statements and counterstatements of material facts and accompanying exhibits. (Doc. 15; Doc. 19). Pursuant to Local Rule 56.1, Kreig has provided his response to Wal-Mart's statement of facts and has provided accompanying exhibits. (Doc. 19; Doc. 19-1; Doc. 19-2; Doc. 19-3; Doc. 19-4). Where Kreig disputes facts and supports those disputes in the record, as required by Local Rule 56.1, those disputes are noted. Pursuant to Local Rule 56.1, the Court accepts as true all undisputed material facts supported by the record. Where the record evinces a disputed fact, the Court will take notice. In addition, the facts have been taken in the light most favorable to Kreig as the non-moving party, with all reasonable inferences drawn in his favor.

On June 18, 2020, Kreig was shopping at the Wal-Mart store in Dickson City, Pennsylvania when he went to use the restroom. (Doc. 15, ¶ 1). When he entered, Kreig turned to the right to walk toward the urinals and fell to the ground after his left foot slipped out in front of him and his right foot slid to the side of him. (Doc. 15, ¶ 1; Doc. 13-2, Kreig Depo. Tr. 21:23-23:1, Oct. 11, 2021). Kreig alleged that his slip and fall was caused by water on the floor. (Doc. 15, ¶ 2; Doc. 13-2, Kreig Depo. Tr. 22:18-23, Oct. 11, 2021). Kreig testified that did not see any water before his fall and his clothes were merely damp after he fell.^[1] (Doc. 15, ¶ 2; Doc. 13-2, Kreig Depo. Tr. 22:1-23:1, Oct. 11, 2021; Doc. 18, ¶ 2). Kreig did not see anyone else in the restroom prior to his fall. (Doc. 15, ¶ 2; Doc. 13-2, Kreig Depo. Tr. 21:1617, Oct. 11, 2021). Kreig was shown pictures taken of the restroom on the date of the incident and agreed that the pictures represented the condition of the floor when he fell. (Doc. 15, ¶ 3; Doc. 13-2, Kreig Depo. Tr. 26:19-30:9, Oct. 11, 2021; Doc. 13-2, at 65-70).

On October 11, 2021, the parties took the deposition of Martin Anstett (“Anstett”). (Doc. 13-3). Anstett testified that he was the CAP 2 Coach or Stocking 2 Coach with the WalMart store in Pittston, Pennsylvania on the date of his deposition, October 11, 2021. Doc. 15, ¶ 4; Doc. 13-3, Anstett Depo. Tr. 7:3-12, Oct. 11, 2021). Prior to the Pittston store, Anstett was a Store Manager at the Tunkhannock, Pennsylvania Wal-Mart store and Developmental Manager at the Dickson City, Pennsylvania Wal-Mart store. (Doc. 15, ¶ 4; Doc. 13-3, Anstett Depo. Tr. 7:19-8:11, Oct. 11, 2021). Anstett was working at the Dickson City Wal-Mart store on the date of the underlying incident, June 18, 2022. (Doc. 15, ¶ 4; Doc. 13-3, Anstett Depo. Tr. 12:14-24, Oct. 11, 2021). Anstett testified that the maintenance department was responsible for the maintenance of the restroom where Kreig allegedly fell. (Doc. 15, ¶ 5; Doc. 13-3, Anstett Depo. Tr. 13:2-5, Oct. 11, 2021). Anstett became aware of Kreig's incident when a “Code White” was called over the walkie-talkie system, which indicates that there was a customer incident. (Doc. 15, ¶ 6; Doc. 13-3, Anstett Depo. Tr. 13:15-20, Oct. 11, 2021). Anstett was with Assistant manager Kyle Manikowski (“Manikowski”) when he received the Code White. (Doc. 15, ¶ 6; Doc. 13-3, Anstett Depo. Tr. 14:2-9, Oct. 11, 2021). Anstett responded to the Code White with Manikowski. (Doc. 15, ¶ 7; Doc. 13-3, Anstett Depo. Tr. 16:9-12, Oct. 11, 2021). When they arrived at the restroom, Manikowski entered the restroom and began taking Kreig's statement, but Anstett did not initially enter the restroom. (Doc. 15, ¶ 7; Doc. 13-3, Anstett Depo. Tr. 16:21-17:2, Oct. 11, 2021). Anstett testified that other WalMart employees, Katie Simmons and Ljuba Konstantin, had also responded to the Code White. (Doc. 15, ¶ 7-8; Doc. 13-3, Anstett Depo. Tr. 17:5-20:21, Oct. 11, 2021). After entering the restroom, Anstett spoke with Kreig and asked whether he wanted a chair. (Doc. 15, ¶ 8; Doc. 13-3, Anstett Depo. Tr. 21:25-23:4, Oct. 11, 2021). Anstett testified that he looked at the restroom floor but did not observe any wetness or moisture on the floor. (Doc. 15, ¶ 9; Doc. 13-3, Anstett Depo. Tr. 24:19-26:23, Oct. 11, 2021).

On October 14, 2021, the parties took the deposition of Katie Simmons (“Simmons”). (Doc. 13-4). At the time of her deposition, Simmons worked at the Taylor, Pennsylvania WalMart store as a Front End Coach, and at the time of the underlying incident, Simmons worked at the Dickson City, Pennsylvania Wal-Mart store as the Asset Protection Manager. (Doc. 15, ¶ 10; Doc. 13-4, Simmons Depo. Tr. 10:2-11:24, Oct. 14, 2021). As the Asset Protection Manager, one of Simmons' job responsibilities included investigating customer incidents and alleged injuries. (Doc. 15, ¶ 11; Doc. 13-4, Simmons Depo. Tr. 12:17-23, Oct. 14, 2021). In that role, Simmons' primary responsibility was evidence collection and preserving surveillance video of any incidents, as well as photos. (Doc. 15, ¶ 11; Doc. 13-4, Simmons Depo. Tr. 16:7-18:1, Oct. 14, 2021). As the Asset Protection Manager, Simmons did not have supervisory authority over anyone in the maintenance department. (Doc. 15, ¶ 12; Doc. 134, Simmons Depo. Tr. 14:11-14, Oct. 14, 2021). Simmons testified that she first heard of Kreig's alleged incident when a Code White in the men's restroom was called over the walkie-talkie system, and that she was required to respond as she was a member of management. (Doc. 15, ¶ 13; Doc. 13-4, Simmons Depo. Tr. 23:22-24:14, Oct. 14, 2021). When Simmons responded to the incident, she brought an iPad to take statements and complete the incident investigation and entered the restroom after it was cleared of other customers by Store Lead Kyle Manikowski. (Doc. 15, ¶ 14; Doc. 13-4, Simmons Depo. Tr. 24:12-26:7, Oct. 14, 2021). Simmons testified that when she entered the restroom, Kreig was on the ground before Manikowski retrieved a chair for him to sit in and observed Kreig's footwear, which she described as “rough.”^[2] (Doc. 15, ¶ 15; Doc. 13-4, Simmons Depo. Tr. 27:21-29:3, Oct. 14, 2021). Simmons testified that she observed the area where Kreig allegedly fell and stated that there were water droplets on the ground and a “skid mark” where Kreig's foot slid. (Doc. 15, ¶ 16; Doc. 13-4, Simmons Depo. Tr. 32:2-33:15, Oct. 14, 2021). Simmons took photos of the restroom and its floor at the time of the alleged incident, which she authenticated at the deposition, and testified that she was unsure as to whether the photos depicted any water droplets. (Doc. 15, ¶ 16; Doc. 13-4, Simmons Depo. Tr. 33:16-36:3, Oct. 14, 2021).

On October 14, 2021, the parties took the deposition of Mark Sauers (“Sauers”). (Doc. 13-5). Sauers is currently employed at the Dickson City, Pennsylvania Wal-Mart store as a Stockers and was in the same position at the Dickson City store on the date of the underlying incident. (Doc. 15, ¶ 17; Doc. 13-5, Sauers Depo. Tr. 7:18-9:6, Oct. 14, 2021). Sauers testified that it was his understanding that he was the last person to use the restroom before the underlying incident occurred. (Doc. 15, ¶ 18; Doc. 13-5, Sauers Depo. Tr. 16:1-6, Oct. 14, 2021). Per his witness statement, Sauers did not notice any unusual amount of water on the floor when he used the restroom. (Doc. 15, ¶ 18; Doc. 13-5, Sauers Depo. Tr. 15:7-11, 17:2322:24, Oct. 14, 2021).

On October 14, 2021, the parties took the deposition of Ljuba De La Cruz (“De La Cruz”), known as Ljuba Konstantin at the time of the incident. (Doc. 13-6). De La Cruz is currently employed at the Dickson City, Pennsylvania Wal-Mart store as an Academy Lead and was in the same position at the Dickson City store on the date of the underlying incident. (Doc. 15, ¶ 19; Doc. 13-6, De La Cruz Depo. Tr. 9:19-11:11, Oct. 14, 2021). As an Academy Lead, De La Cruz has the same responsibilities as a Store Lead, although most of her job duties pertain to the training of assistant managers and hourly supervisors. (Doc. 15, ¶ 19; ...