The opinion of the court was delivered by: Judge William B. Mitchell Carter
This case arises from a slip and fall which Gracie May Farmer sustained at one of the defendant's stores on September 22, 2004. Mrs. Farmer asserts claims of negligence and negligent misrepresentation against Wal-Mart Stores East, L.P. (Wal-Mart). Mr. Farmer brings a claim for loss of consortium. The matter is now before the Court on Wal-Mart's motion for summary judgment (Doc. 18) on the ground that there is no evidence of what caused Mrs. Farmer to fall and that none of Wal-Mart's communications to plaintiffs or plaintiffs' sons could reasonably be interpreted as promising to pay Mrs. Farmer's medical bills. For the reasons stated herein, Wal-Mart's motion for summary judgment shall be GRANTED as to Mrs. Farmer's claim of negligence and DENIED as to Mrs. Farmer's claim of negligent misrepresentation.
Gracie May Farmer was eighty-one years old on August 7, 2006 when she gave her deposition in this matter. On September 22, 2004, Mrs. Farmer went to the Wal-Mart store in Cleveland, Tennessee to have a prescription filled. (Gracie May Farmer's deposition at 35)*fn1 (GMF 35.) While at the store, she slipped and broke her hip coming out of a stall in the women's restroom. (GMF 31-32). Mrs. Farmer testified she entered the first stall in the women's restroom at the front of the store. (GMF. 37). As she entered the stall, she saw a piece of tissue on the floor of the stall, but she did not step on it. (GMF 37-38, 49). As she exited the stall, she fell right in front of the stall, (GMF 36), hitting her head against the wall. (GMF 43). She could not remember if she lost consciousness or not. (GMF 42). At the time she fell, there was no-one in the bathroom with her; her husband was outside the bathroom waiting for her. (GMF 37). She did not step on the tissue paper as she exited the stall and she does not think the tissue paper caused her to fall. She did not see anything else that might have caused her to fall as she was not looking for anything, and she did not notice after the accident whether her clothes were dirty or wet. (GMF 38, 51). When asked by Wal-Mart's counsel, "Mrs. Farmer, is it fair for me to say that you might have simply lost your balance?" she replied, "I don't know." (GMF 41-2).
After she fell, Mrs. Farmer was unable to get up, and she called for help but no-one heard her. (GMF 53). After about five minutes, another customer came into the bathroom, saw her, and summoned help. (GMF 53-4). She was taken by ambulance to the Bradley Memorial Hospital (the hospital) where she remained for five days. (GMF 59, 61). She then transferred directly to a rehabilitative facility where she remained for 40 days. (GMF 61). She personally had no conversation with a Wal-Mart representative about her medical bills or who would pay them. (GMF 59-60).
William Lincoln Farmer, Mrs. Farmer's husband, was 84 at the time his deposition was taken on August 7, 2006. (William Lincoln farmer deposition at 4-5)*fn2 . On the day his wife fell, someone summoned him and he entered the bathroom and saw her lying on the floor. He asked her what happened and she said she didn't really know. (WLF 7). He did not see anything on the floor because he was too concerned about his wife to look. (WLF 7). He has not had any telephone conversations with anyone from Wal-Mart about the accident. (WLF 8). Instead, because he does not hear well, he has had his son, William Lincoln Farmer, Jr., talk with the Wal-Mart representatives. (WLF 8).
William Lincoln Farmer, Jr., known to his family as "Junior," first talked with a Wal-Mart employee while in the hospital visiting his mother on the evening of the day she fell. (WLF 8, William Lincoln Farmer, Jr.'s deposition at 6)*fn3 . Junior testified in his deposition that a woman from the Wal-Mart store where Mrs. Farmer fell called the hospital and "asked how they were doing and said to tell them not to worry about any-- the last thing she said was tell them not to worry about anything." (WLFJ 7). Junior understood this statement to mean Wal-Mart was going to pay his mother's medical bills. (WLFJ 7). One of the mornings Mrs. Farmer was still in the hospital, the same woman called the hospital again and spoke to Junior to ask how his parents were doing. (WLFJ 8-9). During this conversation, the woman did not say anything about not worrying. (WLFJ 10). On the second or third night his mother was in the hospital and while Junior was there visiting her, a Wal-Mart representative called the hospital room from Arkansas, and Junior talked to her. The Wal-Mart representative gave Junior a claim number, asked how his mother was doing, and told him, "tell them not to worry about anything." (WLFJ 12). There was no specific mention of paying medical bills during this conversation. (WLFJ 12). In the Spring of 2005, after his parents had not received a hospital bill, Junior went to the billing department for the hospital to ask about the bill. He was told the bill had been sent to Wal-Mart. (WLFJ 14-15).*fn4
Tommy Lynn Farmer is one of Mrs. Farmer's four sons. He spoke over the telephone to a female Wal-Mart representative from Arkansas three or four times about his mother's accident. (Tommy Farmer's deposition at 6). The calls took place one week, then approximately one month, and then approximately three months after his mother's accident. He is sure it was the same woman, but he could not remember her name. (TF 6). In the first conversation, the woman indicated she was continuing to investigate, that Wal-Mart would "check into it and get back with him," and she said, "[d]on't worry about a thing." (TF 10-11). Tommy testified the woman "insinuated" that Wal-Mart would pay the medical bills. (TF 9). In the second conversation about a month later, the woman called Tommy at his office and asked him how his mother was doing. There was no discussion about medical bills. (TF 13). In the third conversation, the woman told Tommy Wal-Mart had completed its investigation and concluded Wal-Mart was not at fault and would not be paying for anything. (TF 13).
In support of its motion for summary judgment, Wal-Mart has submitted copies of three letters to Grace Farmer from Donna Frazier of Claims Management, Inc, the claims handler for Wal-Mart and its insurance company. The first letter is dated September 23, 2004, one day after the accident. The letter provides a 1-800 number to call and makes no mention whatsoever of paying medical bills or other expenses. The second letter, dated February 17, 2005, asks for "the status" of Mrs. Farmer's claim and provides a telephone number where Ms. Frazier can be reached. Again, no mention of medical bills or expenses is made. The third letter, dated February 23, 2005, states the investigation indicates no negligence on the part of Wal-Mart and Wal-Mart is denying the claim.
Plaintiffs allege in their complaint that because of Wal-Mart's representations, they made no claim against their health insurance for the medical bills Mrs. Farmer incurred and, consequently, the period of time to claim coverage expired, and their insurance company now refuses to cover the medical expenses arising from the accident at Wal-Mart. (Plaintiffs' complaint ¶ ¶ 7-8).
Under Fed. R. Civ. P. 56(c), the Court will render summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to show conclusively no genuine issue of material fact exists, Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994); Kentucky Div., Horsemen's Benev. & Prot. Assoc., Inc. v. Turfway Park Racing Assoc., Inc., 20 F.3d 1406, 1411 (6th Cir. 1994), and the Court must view the facts and all inferences drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. ...