United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE
the Court is Defendant ALDI, Inc.'s February 9, 2017
Motion for Summary Judgment (the “Motion”). (ECF
No. 18 at 64.) Plaintiff Linda McDavid responded on June
2, 2017. (ECF No. 40 at 147.) ALDI replied on June 13, 2017.
(ECF No. 41 at 165.)
following reasons, the Motion is DENIED.
brings this premises liability action against ALDI for
injuries she alleges she sustained from a fall while shopping
in one of ALDI's stores on July 14, 2015. At the time of
the fall, McDavid was shopping on the left-hand side of the
frozen-foods aisle, where grocery items were displayed behind
large glass doors. The aisle was 102.5 inches wide (about 8.5
feet), but there was a center-aisle display in the part of
the aisle where McDavid was shopping. (ECF No. 18-1 ¶ 4
at 68.) ALDI had arranged several 40-by-45-inch wooden
pallets and boxes end-to-end down a portion of the center of
the aisle, with the 45-inch sides of the pallets running
parallel with the aisle. (Id. ¶ 5 at 68.) On
the pallet nearest McDavid at the time of her fall, ALDI had
stacked five or six boxes horizontally on top of one another,
each measuring about 3-feet-by-3-feet and several inches
pushed her shopping cart forward so that she could open one
of the glass doors to remove some frozen chicken. (ECF No.
40-3 at 160, 163.) The space between the side of the aisle
and the edge of the center-aisle display was approximately 3
feet. (See ECF No. 18-1 ¶¶ 4-7.) McDavid opened the
door, which extended approximately 2 feet into the aisle.
(Id.) While holding the door open with her body,
McDavid bent forward, removed one bag of chicken, stood erect
for several seconds, and reached back into the unit to remove
a second bag. (ECF No. 40-3 at 161.)
straightened up a second time, McDavid stepped backward,
allowing the door to close. (Id. at 160.) When she
did so, her foot hit part of the center-aisle display, and
she fell backward into the display, causing several of the
boxes to topple over. (ECF No. 18-2 at 77; ECF No. 40-3 at
160.) McDavid landed on her buttocks atop two of the boxes,
which remained on the pallet. (ECF No. 40-3 at 162.)
testified at her deposition that, when she tried to get up,
her foot got caught in an exposed part of the pallet, her
foot twisted, and she fell a second time. (ECF No. 18-2 at
76, 79; ECF No. 40-3 at 160-63.) She testified that she fell
stomach- or face-down onto the floor. (Id.)
asked whether she knew that the boxes “were there
before the accident, ” McDavid testified that she did
and that she had to push her shopping cart forward to open
the freezer door because the “aisle was very
narrow.” (ECF No. 40-3 at 163.) Her deposition
testimony reflects the following exchange:
Attorney: You knew that before you fell?
McDavid: Yeah, I did. So when I came out of the freezer, not
paying attention I guess, whatever, I don't know, and I
Attorney: Was it a case of just misjudging and backing into
the boxes in the first place?
McDavid: I don't know if that is a good answer. I just
didn't pay attention. I don't know. I don't know
how to explain that part of the fall. I don't know if I
misjudged it or measured or I just said I can't go this
far, I didn't do that. I am shopping.
represents that “there have been no personal injury
lawsuits filed against the store involved in this case, or
arising out of accidents at that store, within the five years
preceding the accident that is the subject of this
case.” (ECF No. 18-3 at 81.) ALDI represents that, with
the exception of a 2013 incident where “a customer
bumped into a pallet in the checklane area and knocked it
onto another customer's left foot, ” “there
were no accidents at the subject store that involved persons
backing into center-aisle displays or that were otherwise
similar to the accident in this case” within the five
years preceding the incident in this case. (Id. at
82.) The record does not show how long the center-aisle
display into which McDavid fell, or one like it, had been set
up in the ALDI store before the incident.
Jurisdiction and Choice of Law
28 U.S.C. § 1332(a), this Court has original
jurisdiction of all civil actions between citizens of
different states “where the matter in controversy
exceeds the sum or value of $75, 000, exclusive of interest
and costs.” 28 U.S.C. § 1332(a)(1). McDavid is a
citizen of Tennessee. (ECF No. 1 at 1.) ALDI is an Illinois
corporation with its principal place of business in Illinois.
(Id.) McDavid seeks damages in excess of $75, 000.
(Id.) The parties are completely diverse, and the
amount-in-controversy requirement is satisfied.
diversity action, state substantive law governs. See
Brocklehurst v. PPG Indus., Inc., 123 F.3d 890, 894 (6th Cir.
1997) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938)). Where, as here, there is no dispute that a certain
state's substantive law applies, the court will not
conduct a “choice of law” analysis sua
sponte. See GBJ Corp. v. E. Ohio Paving Co., 139 F.3d
1080, 1085 (6th Cir. 1998). Tennessee substantive law