Date: 06-17-2012

Case Style: Zella L. Albright v. Wal-Mart Stores, Inc.

Case Number: CJ-2010-5718

Judge: Lisa T. Davis

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Shannon K. Macko

Defendant's Attorney: Brock C. Bowers and Michael W. Brewer

Description: Zella L. Albright sued Wal-Mart Stores, Inc. on a negligence theory alleging:

1. That on or about the 24th day of October 2009, Plaintiff ALBRIGHT was a business invitee on the premises of Defendant Wal-Mart Super Center located at 1-240 and Santa Fe in Oklahoma City, Oklahoma County, State of Oklahoma;
2. That Defendant WALMART furnishes shopping carts and, in fact, places them at the entrance to their stores as an encouragement and enticement for customers to purchase multiple items thereby increasing the profits of the Defendant WALMART;
3, That on the aforementioned date Plaintiff ALBRIGHT was enticed by Defendant WALMART to obtain a shopping cart from the line of carts that had been jammed together by the “shopping cart handlers� causing them to stick together which Defendant WALMART knew or should have known would be and is a hazard to the public and, in particular, the elderly Plaintiff ALBRIGHT and others like her:
4. That upon attempting to pull the shopping carts apart from the line of shopping carts, the cart ultimately broke loose without warning causing Plaintiff ALBRTGHT to fall, sustaining severe and disabling injuries all due to the negligence and want-of-care of Defendant WALMART and its agents, servants and employees;
5. Defendant WALMART was negligent in one or more of the following particulars when it knew or should have known that its employees had created a hazard in the nature of a hidden snare trap or pitfall that would not be readily observable to the public and, in particular, the Plaintiff ALBRIGFIT in that:
a. Defendant WALMART’s employees jammed the carts together causing them to be wedged or stick together requiring members of the public to use force in order to separate the baskets for use in the Defendant WALMART’s store which Defendant WALMART has enticed the public and, in particular, the Plaintiff ALBRIGHT to use.
b. The Defendant WALMART should have known that the manner in which they stored and displayed the shopping carts, that they would be difficult, if not impossible, to separate from one another and that the public and, in particular, the Plaintiff ALBRIGHT would most probably suffer injuries attempting to separate the carts,
c. Defendant WALMART was negligent in that they failed to warn customers and, in particular, the Plaintiff ALBRIGHT of the hazards associated with separating the carts andlor they failed to provide the carts in a reasonable manner to the public and, in particular, the Plaintiff ALBRIGHT so the hazard and subsequent injuries could be avoided by the Plaintiff ALBRIGHT.
6. Additionally, by custom and practice, Defendant WALMART separates the carts and furnishes them to customers at other stores and locales because of the hazards associated with the way the customer service representatives/shopping cart handlers gather, store and display the shopping carts for use. Defendant WALMART is therefore negligent in failing to provide a shopping cart for the Plaintiff ALBRIGHT by providing one to her as she entered the facility unnecessarily exposing her to the aforementioned hazard, ultimately, resulting in her injuries;
7. As a result of PlaintiffALBRIGI-IT’s accident and injuries which were the direct and approximate result of the want-of-care, carelessness and negligence of Defendant WALMART and its agents, servants and employees, Plaintiff ALBRIGHT sustained significant bodily injury necessitating medical treatment causing her to incur medical bills and expenses in excess of $100,000; suffered pain of mind and body; suffer permanent injuries; and requiring fUrther and additional medical care and treatment in the future.
WHEREFORE, premise considered Plaintiff ALBRIGHT prays for damages in excess of $100,000; cost of this action; and such and other thither relief as this Court may deem just and proper.


Defendant Wal-Mart Stores East, LLP answer and alleged:

allegation of Plaintiffs
of Plaintiffs Petition, the
Defendant, Wal-Mart Stores East, L.P., a Delaware limited partnership, incorrectly identified in Plaintiffs Petition as Wal-Mart Stores, Inc., a foreign for profit corporation, (“WalMart�), for its Answer to Plaintiffs Petition, states as follows:
Wal-Mart generally and specifically denies each and every
Petition, unless such allegation is specifically admitted.
1. As to the allegations contained in paragraph no. 1 of Plaintiffs Petition, it is admitted to the extent that Plaintiff may have been a business invitee as she was in the parking lot of one of its premises on or about August 2, 2008 at 1-240 and Santa Fe in Oklahoma City, Oklahoma County, State of Oklahoma; otherwise, the allegations are denied.
2. As to the allegations contained in paragraph no. 2 of Plaintiffs Petition, it is admitted to the extent that Defendant does keep some shopping carts available for customers to utilize while on its premises; otherwise the allegations are denied.
3. As to the allegations contained in paragraph no. 3 allegations are denied.
4. As to the allegations contained in paragraph no. 4 of Plaintiff’s Petition, the allegations are denied.
5. As to the allegations contained in paragraph no. 5, 5(a), 5(b), and 5(c) of Plaintiffs Petition, the allegations are denied.
6. As to the allegations contained in paragraph no. 6 of Plaintiffs Petition, the allegations are denied.
7. As to the allegations contained in paragraph no. 7 of Plaintiffs Petition, the allegations are denied.
AFFIRMATIVE DEFENSES
For its Affirmative Defenses, Wal-Mart states as follows:
1. Wal-Mart generally and specifically denies Plaintiffs claims of liability, negligence and damages.
2. Plaintiff failed to state a claim upon which relief can be granted.
3. Contributory/comparative negligence of Plaintiff
4. The alleged accident was caused by the acts or omissions of third parties not under the control of Wal-Mart.
5. Plaintiffs injuries, if any, were brought about by superseding and intervening cause.
6. Plaintiffs injuries, if any, were result of a pre-existing condition.
7. Plaintiffs actions were the sole cause of any injuries.
8. Plaintiff failed to mitigate her damages.
9. Voluntary assumption of the risk.
10. Defendant had no duty to Plaintiff under Oklahoma law.
11. If a dangerous condition is proven to have existed, it was open and obvious, and Wal-Mart had no duty to warn about it.
12. Wal-Mart had no actual or constructive notice of any dangerous condition.
13. Statute of Limitations.
14. Wal-Mart reserves the right to amend its Answer to Plaintiff’s Petition, including asserting additional affirmative defenses, as discovery continues.
WhEREFORE, having fully Answered, Defendant, Wal-Mart Stores East, L.P., a Delaware limited partnership (“Wal-Mart�), requests that judgment be entered in its favor, and that it be awarded its costs incurred in defending this case, as well as any other relief to which it is entitled.

Outcome: NOW on this 3 day of May, 2012, upon,Defendant’s Motion for Summary Judgment,
Plaintiff appeared by and through her counsel, Shannon Macko with Gungoll, Jackson, Collins & Box P.C. and Defendant by and through its counsel, Broek Bowers with Hiltgen & Brewer P.C. After reviewing the briefs and listening to oral argument, the court finds that Defendant’s Motion for Summary Judgment should be, and hereby is, sustained.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant’s Motion for Summary Judgment is sustained and Judgment is entered in favor of Defendant and against Plaintiff on all of Plaintiff’s causes of action and claims.

Plaintiff's Experts:

Defendant's Experts:

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