United States District Court, M.D. Tennessee, Northeastern Division
BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE
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 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
review of the parties' respective filings, the Court
finds that summary judgment is appropriate and therefore
DISMISSES this case WITH PREJUDICE.
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.
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.
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.
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)).
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
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.
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
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 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.
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 ...