Morrow v. Wal-Mart Stores E.

LILLIAN MORROW, Plaintiff, v. WAL-MART STORES EAST, LP, Defendant.

Case No. 1:20-cv-162

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

March 25, 2021

Litkovitz, M.J.

ORDER

Plaintiff Lillian Morrow brings this premises liability action alleging that defendant Wal-Mart Stores East, LP ("Wal-Mart") breached its duty of care after she was injured when a water bottle case allegedly fell and hit her in the shoulder and back. (Doc. 2). This matter is before the Court on Wal-Mart's motion for summary judgment (Doc. 24), plaintiff's response in opposition (Doc. 25), and defendant's reply memorandum (Doc. 30).

I. Undisputed Facts

This lawsuit arises out of an incident that occurred at the City of New Boston Wal-Mart on April 30, 2019. (Doc. 2 at PAGEID 23).¹ On that date, plaintiff went to Wal-Mart to shop for groceries. (Doc. 23, Pltf. Depo. at PAGEID 73, 74). Plaintiff was familiar with that particular store as she went to that location "[a]bout three times a week." (Id. at PAGEID 73). After shopping for groceries, plaintiff went to the aisle where the cases of water were stored. (Id.).

The cases of water bottles arrive by truck where employees pull out the cases of water with a pallet jack from the receiving docks and then place them into the aisle. (Doc. 26-2, VanMatre Depo. at PAGEID 159). The cases of water are wrapped in plastic shipping wrap when they initially arrive at the store. (Id.). The employees remove the plastic before taking the cases out into the aisle. (Id. at PAGEID 159-60). The water bottle cases "are usually not messed up when we [Wal-Mart employees] put them out there. When they come in [] the truck, they are solidly stacked. They don't have an issue with falling over or anything like that." (Id. at PAGEID 160). The pallets of water are brought out into the store "[a]s they sell." (Id. at PAGEID 161).

The parties disagree as to how high the cases of water bottles were stacked on April 30, 2019. According to plaintiff, the cases were stacked "very high on the shelves[.]" (Doc. 23, Pltf. Depo. at PAGEID 74). Plaintiff testified that the cases were stacked taller than her—plaintiff is five feet four inches tall. (Id. at PAGEID 76). Defendant, however, disagrees with plaintiff's testimony. Defendant attaches a photograph allegedly depicting the scene of the incident to its motion for summary judgment and argues that "the water bottle cases were not stacked unreasonably high or even in the manner which plaintiff described." (Doc. 24 at PAGEID 88).

Plaintiff bent over to retrieve a case of water when she felt something hit her on the shoulder and back. (Doc. 23, Pltf. Depo. at PAGEID 73-74). Plaintiff explained that the water bottle case fell and hit her on the top part of her back in the middle of her spine. (Id. at PAGEID 71, 77). Plaintiff "tried to holler for help, but [her] voice was too weak[.]" (Id. at PAGEID 73). Plaintiff then "blacked out." (Id. at PAGEID 73, 74). Plaintiff was eventually placed in a chair and taken to the hospital by ambulance. (Id. at PAGEID 73-74, 76-77). Sometime later, plaintiff had surgery for the injuries she sustained in the incident at Wal-Mart. (Id. at PAGEID 77-79).Plaintiff alleges she suffered "severe and permanent injuries, including but not limited to a T12 compression fracture, along with other injuries." (Doc. 2 at PAGEID 23).

II. Summary judgment standard

A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A grant of summary 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 of material fact and the moving party is entitled to judgment as a matter of law." Satterfield v. Tennessee, 295 F.3d 611, 615 (6th Cir. 2002). The Court must evaluate the evidence, and all inferences drawn therefrom, in the light most favorable to the non-moving party. Id.; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Little Caesar Enters., Inc. v. OPPC, LLC, 219 F.3d 547, 551 (6th Cir. 2000).

The trial judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at 249. The trial court need not search the entire record for material issues of fact, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine "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." Anderson, 477 U.S. at 251-52. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587.

A fact is "material" if its resolution will affect the outcome of the lawsuit. Beans v. City of Massillon, No. 5:15-cv-1475, 2016 WL 7492503, at *5 (N.D. Ohio Dec. 30, 2016), aff'd, No. 17-3088, 2017 WL 3726755 (6th Cir. 2017) (citing Anderson, 477 U.S. at 248). The party who seeks summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 322. To make its determination, the court "need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3). The party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288 (1968).

III. Resolution

A. Law governing negligence causes of action

Plaintiff asserts a single negligence claim against Wal-Mart. (Doc. 2). To establish a negligence claim under Ohio law, the plaintiff must establish that: (1) the defendant owed a duty of care to plaintiff; (2) the defendant breached that duty; and (3) the defendant's breach was both a but-for and proximate cause of the plaintiff's injuries. Hernandez-Butler v. Ikea U.S. East, LLC, 435 F. Supp. 3d 816, 822 (S.D. Ohio 2020) (citing Lang v. Holly Hill Motel, Inc., 909 N.E.2d 120, 122 (Ohio 2009)). See also Weber v. Menard, Inc., No. 3:13-cv-229, 2014 WL 4965940, at *2 (S.D. Ohio Oct. 3, 2014). "Premises liability is a specific type of negligence claim based on an injury that arises out of a condition on the property as opposed to an injury arising out of the activity or conduct that created the condition." DeBusscher v. Sam's East, Inc., 505 F.3d 475, 479 (6th Cir. 2007).

When the negligence occurs in the premises liability context, "the duty that a premises owner owes under Ohio law turns on whether the injured person is an invitee, licensee, or trespasser." Hernandez-Butler, 435 F. Supp. 3d at 822. See Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 723 (6th Cir. 2012); Lang, 909 N.E.2d at 122-23. "[A] business invitee is a person who is on the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner." Mosholder v. Lowe's Home Ctr., LLC, 444 F. Supp. 3d 823, 827 (N.D. Ohio 2020). See also Mota v. Gruszczynski, 968 N.E.2d 631, 636 (Ohio Ct. App. 2012) (internal citation and quotation marks omitted) ("Invitees are persons who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner."). It is undisputed that plaintiff was a business invitee of Wal-Mart. (See Doc. 2 at PAGEID 23; Doc. 24 at PAGEID 85; Doc. 25 at PAGEID 103-04). Wal-Mart, therefore, owed plaintiff a duty to exercise ordinary care and to maintain the premises in a safe condition. Mosholder, 444 F. Supp. 3d at 823; Andler, 670 F.3d at 723; Lang, 909 N.E.2d at 123.

B. Analysis

Defendant puts forth four bases in support of their motion for summary judgment: (1) plaintiff's testimony is contradicted by a photograph and therefore cannot be considered under the "physical facts rule"; (2) plaintiff fails to identify how or why the water bottle case fell; (3) Wal-Mart owed plaintiff no duty of care because any danger was "open and obvious"; and (4) Wal-Mart did not breach any duty of care because Wal-Mart neither created the alleged hazard, had actual knowledge of the hazard, nor had knowledge that the hazard existed for a sufficient length of time. (Doc. 24 at PAGEID 84-85).

1. Physical evidence

Defendant first argues that the physical evidence, a photograph, renders plaintiff's testimony inadmissible under the "physical facts" rule. (Id. at PAGEID 87-89). Defendant specifically argues that plaintiff's testimony that the water bottle cases were "stacked too high—five feet four inches" is "impossible based on the display" as exhibited in the attached photograph. (Id. at PAGEID 88). Defendant therefore contends that because "the physical evidence is clear" that the "water bottle cases were not stacked unreasonably high or even in the manner which plaintiff described[,]" "[s]ummary judgment is appropriate because [plaintiff's] speculation of what occurred is inadmissible under the physical evidence rule." (Id. at PAGEID 88-89).

In response, plaintiff argues that the "physical facts" rule in inapplicable because "the photo in question fails to encompass the entire scene of the incident." (Doc. 2 at PAGEID 100). Plaintiff contends that the photograph "only encompasses a small area of the floor" and therefore, "does not prove [plaintiff's] testimony that the cases of water...