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Case Number: 3:20-cv-00195
Judge: Jeffrey S. Frensley
Court: United States District Court for the Middle District of Tennessee (Davidson County)
Defendant's Attorney: George Andrew Rowlett and Maria T. de Quesada
Description: Nashville, Tennessee personal injury lawyer represented Plaintiff who sued Defendant on a premises liability negligence theory.
On the evening of December 13, 2018, Plaintiff and Ms. Puck arrived at Defendant's store in Lebanon, Tennessee to purchase some green beans and other miscellaneous items (Docket No. 39, p. 2; Docket No. 41-1, p. 4). They walked down the seasonal aisle together, and after Ms. Puck had left the aisle, Plaintiff slipped on an “unknown clear, somewhat sticky, liquid substance” (Docket No. 41-1, p. 13) located on the floor at the end of the aisle (Docket No. 39-1, p. 6). Plaintiff did not have a shopping cart or basket with her at the time of the fall, and she grabbed a shelf to try to brace herself (Docket No. 41-1, p. 4, 5). Plaintiff then used the shelf to help herself up, after which the only other shopper on the aisle asked if she needed any help (Id.).
Plaintiff did not see the substance on the floor prior to or after the fall. (Docket No. 41-1, p. 5). However, she saw her footprint on the ground and felt the substance on her clothes, which left “somewhat of a wet mark” on her bottom, leggings, and shoes (Id.). Plaintiff did not know how the substance ended up on the floor, how long it was on the floor prior to the incident, whether an employee or a customer put the substance on the floor, or whether an employee knew about the spill before the fall (Id. at 5-6). She also testified that Ms. Puck walked through the same area as the spill before she fell (Docket No. 44-1, p. 2)
After falling, Plaintiff claims that she “went straight to the front” of the store (Docket No. 41-1, p. 6). However, Assistant Protection Manager Ms. Carpenter testified that, based on the video surveillance, “[Plaintiff] had already done all her shopping [before she] got to self-check and told [a Walmart employee] that she wanted to talk to a manager” (Docket No. 44-2, p. 3). By the time Assistant Manager Mr. Lee was notified of the spill and went to check the area and take pictures, it seemed the substance had already been cleaned up: the lights were shining down on the floor and there was no stain or slide mark in the photos. (Id.) Ms. Carpenter does not know who cleaned up the substance and there were no cameras on the accident aisle (Docket No. 45, p. 3)
On the night of the incident, another customer fell a few aisles over; however, Plaintiff does not believe it was the same substance she slipped on “[b]ecause it was on the other aisle” (Docket No. 41-1, p. 6). Plaintiff believes that Defendant should have “[the] staff going around doing checks on every aisle to avoid [accidents]” (Id.). Mr. Lee testified that Walmart had a fulltime maintenance crew that were always in the store and that there were protocols in place to
ensure the floors were free of debris and spills (Docket No. 44-4, p. 3). However, he was unsure about whether the store had a specific policy regarding how often employees were to check for spills (Docket No. 41-1, p. 18). Ms. Carpenter testified that Walmart had procedures in place, called “safety sweeps,” requiring employees to look for spills every hour; however, she was not present the night of the incident and is unsure about whether employees abided by the procedure (Docket No. 41-1, p. 12).
At the time of the incident, Plaintiff was in “pretty good” health and had never taken prescription painkillers or pain medication aside from a surgery on her left shoulder (Id. at 3). After the accident, Plaintiff suffered a torn meniscus and labrum in her hip, both on the left side of her body (Id. at 3-4).
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In cases of premises liability, the premises owner has a duty to exercise reasonable care under the circumstances to protect people lawfully on the premises from unreasonable risks of harm. Basily v. Rain, Inc., 29 S.W.3d 879, 883 (Tenn. Ct. App. 2000); Dobson v. State, 23 S.W.3d 324, 330 (Tenn. Ct. App. 1999). However, courts have declined to impose a legal duty in situations where the condition was never discovered, nor would have been discovered through exercise of reasonable care, by the premises owner. Rice, 979 S.W.2d at 309. To hold the premises owner liable for the dangerous and defective condition,
the plaintiff must prove each of the elements of negligence and either (1) that the condition was caused or created by the premises owner or their agent, or (2) if the condition was created by someone other than the owner or their agent, that the premises owner had actual or constructive notice of the dangerous or defective condition prior to the accident.
Williams v. Linkscorp Tennessee Six, L.L.C., 212 S.W.3d 293, 296 (Tenn. Ct. App. 2006) (citing Blair v. West Town Mall, 130 S.W.3d 761, 762 (Tenn. 2004)). Generally, notice can be established “by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence” Blair, 130 S.W.3d at 762. Plaintiff may also provide “proof that the dangerous or defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have become aware of the condition. Id. at 764 (citing Simmons v. Sears, Roebuck & Co., 713 S.W.2d 640, 641 (Tenn. 1986)).When ascertaining whether a condition was discovered or would have been through exercise of reasonable care, “the mere existence of a defect or danger is generally insufficient to establish liability, unless it is shown to be of such a character or of such duration that the jury may reasonably conclude that due care would have discovered it.” Rice, 979 S.W.2d at 309 (citing Prosser and Keeton on Torts, supra, § 61 at 426-27).
Outcome: For the foregoing reasons, the undersigned finds that Plaintiff has failed to establish that there is a genuine issue of material fact. Accordingly, Defendant's Motion for Summary Judgment (Docket No. 38) is GRANTED, and this action is DISMISSED with prejudice.