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Dixon v. Wal-Mart Stores East, LP

United States District Court, M.D. Tennessee, Northeastern Division

October 30, 2019

ESSLONIA DIXON
v.
WAL-MART STORES EAST, LP

          MEMORANDUM OPINION

          BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE

         This case is before the Magistrate Judge for all purposes, including entry of a final judgment, by consent of the parties. See Docket Entry (“DE”) 14, 21. On August 28, 2019, the Court entered an order requiring Plaintiff Essolonia Dixon to file a brief in opposition to summary judgment in light of outstanding questions regarding the duty of care owed by Defendant Wal-Mart Stores East, LP (“Wal-Mart”) in the instant matter. See DE 59.0F[1] Plaintiff has since filed both a brief (see DE 65) and an accompanying statement of undisputed facts. See DE 66. Defendant has filed a responsive brief (see DE 67) and a response to Plaintiff's statement of undisputed facts. See DE 68.

         Upon review of the parties' respective filings, the Court finds that summary judgment is appropriate and therefore DISMISSES this case WITH PREJUDICE.

         I. BACKGROUND

         This matter involves a slip and fall accident that occurred in a Wal-Mart store in Crossville, Tennessee. While walking next to the shampoo or hair care aisle of the Wal-Mart on December 27, 2016, Plaintiff stepped on a clear, liquid substance located on the floor and fell to the ground, which caused her to suffer multiple injuries. DE 68 at ¶¶ 5, 6, 9. A subsequent investigation revealed that the substance in question was hair gel that had been spilled onto the floor by another customer, Jennifer Messersmith, and was present on the floor for two minutes and 18 seconds before Plaintiff stepped in it. Id. at ¶ 7, 8.

         Plaintiff claims that Ms. Messersmith's statement that the lid “came off the hair gel” when she dropped it onto the floor, thus causing the spill, demonstrates that the lid on the hair gel container “was likely already loose when placed by a stocker[.]” DE 65 at 2. Because the stocker was an employee of Wal-Mart, Plaintiff argues, Defendant violated its duty to ensure that the products placed on its store shelves were “in a fit condition to be displayed for consumers.” Id. Plaintiff alternatively argues that Wal-Mart had constructive notice of the substance in question and that a jury could find that two minutes and 18 seconds was a sufficient amount of time to alert Defendant to the existence of the hazardous condition on its floor. Id. at 3.

         Defendant responds to Plaintiff's claim that the lid on the hair gel container was “likely already loose” by noting that argument requires exactly the type of jury speculation that is meant to be excluded from trial. DE 67 at 1. Defendant asserts that Plaintiff's failure to introduce any evidence suggesting that the lid was loose prior to Ms. Messersmith dropping the container on the floor requires dismissal of this action. Id. at 2. Defendant also responds to Plaintiff's alternative claim by arguing that no reasonable juror could conclude that Wal-Mart had constructive notice of the hazardous condition as the substance was impossible to see unless one was “standing over it looking for it[.]” Id. at 4.

         II. ANALYSIS

         Rule 56 permits a district court to grant summary judgment in favor of a non-moving party “[a]fter giving notice and a reasonable time to respond.” Fed.R.Civ.P. 56(f). District courts are “widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). When considering whether summary judgment is appropriate, the court must “look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial.” Sowards v. Loudon County., 203 F.3d 426, 431 (6th Cir. 2000). Furthermore, the Court must view the evidence and all inferences drawn from the underlying facts “in the light most favorable to the party opposing” summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587 (1986) (internal citation omitted). However, conclusory allegations, speculation, and unsubstantiated assertions are not evidence and are insufficient to overcome summary judgment. Gooden v. City of Memphis Police Dep't, 67 Fed.Appx. 893, 895 (6th Cir. 2003) (citing Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990)). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (holding that plaintiff “could not rest” on allegations of conspiracy to get to a jury without setting forth “any significant probative evidence tending to support the complaint”) (citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

         Because this is a diversity case, the Court must apply Tennessee's substantive law of negligence. Morales v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998). To succeed on a claim of negligence, a plaintiff must demonstrate the following: (1) that the defendant owed the plaintiff a duty of care; (2) that the defendant breached that duty of care; (3) that the plaintiff suffered some injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn. 1996). Additionally, to hold an owner of a business liable in negligence for a dangerous condition on its premises, the plaintiff must show either (1) that the premises owner caused the condition, or (2) if not, “that the owner ... had actual or constructive notice that the condition existed prior to the accident.” Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004) (internal citations omitted). If liability is predicated on constructive knowledge by the defendant, there must be proof indicating that the dangerous condition at issue “existed for such a length of time that the defendant knew, or in the exercise of ordinary care should have known, of its existence.” Jones v. Zayre, Inc., 600 S.W.2d 730, 732 (Tenn. Ct. App. 1980) (internal citation omitted).

         To prevail, Plaintiff must therefore demonstrate that Defendant either caused or created the hair gel spill on the floor or had actual or constructive notice of the spill. Hardesty v. Service Merchandise Co., Inc., 953 S.W.2d 678, 683 (Tenn. Ct. App. 1997). If Plaintiff succeeds in establishing that Defendant either caused or created the spill or had constructive notice of the spill, then Defendant owed a duty of care to Plaintiff to clean up the spill or otherwise remedy the dangerous condition. White v. Bi-Lo, LLC, No. M2007-2698-COA-R3-CV, 2008 WL 441578, at *5 (Tenn. Ct. App. Sept. 26, 2008). If, however, Plaintiff fails to demonstrate that Defendant caused or created the spill or had constructive notice of the spill before she fell, then Defendant did not owe her a duty to remedy the condition. Id. The Court concludes that neither of Plaintiff's theories of liability is enough to survive judgment as a matter of law.

         First, Plaintiff cites no evidence for her attenuated claim that a Wal-Mart employee “likely” caused the slippery condition of the floor by failing to ensure that the subject hair gel container's lid was secure before placing the item on a shelf. Plaintiff purports to rely on the witness statement of the person who dropped and spilled the hair gel, Jennifer Messersmith. Ms. Messersmith says in her statement that the “lid came off the hair gel, spilled on the floor.” DE 63-1 at 1. The most favorable possible construction of this statement is that the hair gel lid may have been loose before it was dropped.1F[2]

         But the fact that the lid may have been loose is not evidence that Defendant caused or created the hair gel spill; it's not even evidence that an employee of Defendant was responsible for the loose lid. Another customer could have loosened the lid and placed the product back on the shelf. Or Ms. Messersmith could have loosened the lid (either intentionally or unintentionally) while she was carrying the container from the hair care aisle to the main walkway2F[3] and then lost her grip on the container. Or the lid, even if loose, could have come off the container, resulting in spilled product, only when it was dropped by Ms. Messersmith. Any of those circumstances is possible, and nothing more than speculation. Just as Plaintiff's contention that the lid was “likely already loose when placed [on the shelf] by a stocker who is an employee of Defendant Wal-Mart” (DE 65 at 2) is nothing more than pure conjecture.

         In the absence of proof of how the dangerous condition “came about, it would be improper to permit the jury to speculate on [this] vital element.” Id. (collecting cases). Because that is precisely what Plaintiff's theory requires, the argument must be rejected. See Stanley v. Walmart Stores East, LP, No. 15-86-ART, 2016 WL 3079837, at *2 (E.D. Ky. May 31, 2016) (“If the plaintiff has no evidence that a Walmart employee caused the spill, how could a ‘reasonable' jury find that Walmart caused the spill anyway? A jury must base its decision on ...


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