United States District Court, W.D. Virginia, Danville Division
RUBY A. STULTZ, Plaintiff,
WAL-MART STORES, INC. and WAL-MART STORES EAST, L.P., Defendants.
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE
September 2, 2015, Plaintiff Ruby A. Stulz
(“Plaintiff”) filed a state negligence action
against Wal-Mart Stores, Inc., and Wal-Mart Stores East,
L.P., (“Defendants”) in Henry County Circuit
Court. (Compl., Sept. 2, 2015 [ECF No. 1-2].) Defendants
filed a Notice of Removal prior to service on December 10,
2015. [ECF No. 1.] In their Answer, Defendants allege that
Plaintiff's injuries were caused by her contributory
negligence. (Answer pg. 3, Dec. 15, 2015 [ECF No. 8].)
Defendants moved for summary judgment on August 31, 2016.
(Mot. for Summ. J., August 31, 2016. [ECF No. 15.] The matter
was fully briefed, and the parties appeared for oral argument
on the Motion on September 22, 2016. Having considered the
briefs and the arguments of the parties, the matter is now
ripe for disposition. For the reasons stated below,
Defendants' Motion for Summary Judgment will be denied.
STATEMENT OF FACTS AND PROCEDURAL
October 6, 2013, Plaintiff drove her car to the Wal-Mart
Supercenter, located at 976 Commonwealth Boulevard in
Martinsville, Virginia, to buy yarn for her granddaughter.
(Dep. of Ruby A. Stultz 21:23-25, 22:23-23:2, June 24, 2016
[ECF No. 16-3] (hereinafter “Pl's Dep.”)
Plaintiff arrived at approximately 12:47 p.m. and entered
through the Tire and Lube Express (“TLE”)
entrance, where oil changes and vehicle maintenance are
performed. (Id. at 25:22- 26:9.) Plaintiff was a
regular customer of this Wal-Mart and had used this entrance
several times prior to the incident which gave rise to the
present litigation. (Pl. Interrogatory Answers and Req. for
Produc. ¶ 1, June 21, 2016 [ECF No. 16-2] (hereinafter
“Pl.'s Interrog.”).) The door to the TLE is
solid but has a window, giving a view into the customer area
of the TLE. On the day of the incident, however, a piece of a
paper was posted to the window, partially obscuring the view
through the window, “meaning that a customer could not
see through the glass to the floor below.” (Br. in
Opp'n to Defs.' Mot. for Summ. J. ¶ 4, Sept. 8,
2016 [ECF No. 19] (hereinafter “Pl's Br.”).)
security camera located in the TLE customer area captured the
incident. (See Br. in Supp. of Def.'s Mot. for
Summ. J. (hereinafter “Defs.' Br.”) Ex. 4,
Aug. 31, 2016 [ECF No. 16-4] (hereinafter “Surveillance
Tape”).) At approximately 12:10:40 p.m., one of
Defendants' employees placed two wooden pallets near the
entryway of the TLE customer area. At approximately 12:47:54
p.m., Plaintiff, dressed in a pink shirt, approached the door
from the outside. (Pl.'s Dep. 26:10-26:12; Defs.' Br.
Ex. 5 [ECF No. 16-5].) Plaintiff stated in her Response that
the pallets “were located approximately one step in
front of the door as it opens.” (Pl.'s Br. ¶
5.) On the video, however, Plaintiff took three steps before
she tripped over the pallets and fell to the ground.
(Surveillance Tape 12:47:57-12:48:02 p.m.) When she fell,
both her knees hit the ground simultaneously, and she caught
herself with her hands. (Pl.'s Dep. 45:15-45:25.)
concedes she was not looking down as she entered. She claims
“she was distracted as she was looking over to the
customer counter to her left, and this distracted her view of
what was immediately at her feet as the door opened.”
(Pl.'s Br. ¶ 7.) Plaintiff stated that the blue
pallets were noticeable against the white floor “[i]f
you're looking down while you're walking.”
(Pl.'s Dep. 43:4-7.) The solid door, coupled with the
paper sign posted in the door's window, prevented her
from seeing the pallets. (Pl.'s Interrog. ¶ 1.)
Instead, Plaintiff was looking to her left, towards the cash
registers, hoping to see a Wal-Mart employee to direct her to
the yarn section. (Pl.'s Dep. 40:24-41:8.) Plaintiff was
using a cane at the time as a result of a workplace accident
in 2010. (Pl.'s Dep. 17:16-18:2, 45:10-12; Pl.'s
Interrog. ¶ 2.)
approximately six minutes after her fall, Plaintiff paced
around the TLE customer area, presumably looking for an
employee. (Surveillance Tape 12:48:00-12:54:00 p.m.)
Eventually, Robert Vaughn, a Shift Manager, came to speak
with her. (Aff. of Robert Vaughn, August 19, 2016 [ECF No.
16-6] (hereinafter “Vaughn Aff.”).) Plaintiff
declined to have store personnel call 911 for an ambulance.
(Pl.'s Dep. 60:10-18.) Plaintiff completed her purchase
with the assistance of a Wal-Mart manager, who escorted her
throughout the store. Another employee escorted Plaintiff to
her vehicle. (Pl's Dep. 61:13-20.) It is unclear whether
Plaintiff requested this assistance. Plaintiff drove herself
home and called her friend, a Registered Nurse, to take her
to the hospital. (Pl.'s Dep. 60:19-61:3.) Plaintiff
alleges that she was “seriously and permanently injured
about her head, neck, body and extremities” as a result
of her fall. (Compl. ¶ 5.)
the incident, Vaughn reviewed the video surveillance and
affirmed that thirteen individuals walked into the TLE
customer area through the same door as Plaintiff, and that
none tripped over the pallet. (Vaughn Aff. ¶¶ 5-6.)
Plaintiff counters that two of the individuals who came
through the door walked through twice, bringing the actual
total to eleven separate persons. One individual appeared not
to notice the pallets until her foot hit the stack, causing
her to quickly change direction to avoid the pallets.
(Surveillance Video 12:14:13-:21 p.m.) Vaughn had the pallets
removed shortly after speaking with Plaintiff. (Surveillance
Video 1:07:15 p.m.; Vaughn Aff. ¶ 3.)
originally filed this action on September 2, 2015, in Henry
County Circuit Court. Prior to being served, Defendants filed
a Notice of Removal on December 10, 2015, based on diversity
jurisdiction under 28 U.S.C § 1332. In her Complaint,
Plaintiff alleged that Defendants' employee negligently
placed wooden pallets near a customer entryway, causing her
to trip over the pallets and injure herself. (Compl.
¶¶ 2-4.) On August 31, 2016, Defendants filed a
motion for summary judgment, arguing Defendants met the
proper standard of care, and Plaintiff's injuries were
caused by her own contributory negligence. Plaintiff filed a
response on September 8, 2016 (see Pl.'s Br.),
Defendants filed a Reply (Defs.' Reply Br. in Supp. of
Mot. for Summ J., September 15, 2016 [ECF No. 22]
(hereinafter “Defs.' Reply Br.”)), and the
parties argued Defendants' Motion on September 22, 2016.
STANDARD OF REVIEW
judgment is appropriate where there is no genuine issue as to
any material fact, and the moving party is entitled to a
judgment as a matter of law. Fed.R.Civ.P. 56(c). The court
must view the facts, and the inferences to be drawn from
them, in the light most favorable to the non-moving party.
United States v. Diebold, Inc., 369 U.S. 654, 655
(1962). A genuine issue of material fact exists if reasonable
jurors could find by a preponderance of the evidence that the
non-moving party is entitled to a verdict in their favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986). The court must not make credibility determinations or
weigh the evidence. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000).
moving party has the initial burden of pointing out the
deficiency in the non-movant's case that would make it
impossible for a reasonable fact-finder to return a verdict
in the non-movant's favor. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). A movant-defendant
may show that he is entitled to judgment as a matter of law
by demonstrating that the plaintiff could not prove an
essential element of his case. Id. at 322-23. It is
then up to the non-movant to demonstrate to the court that
there are genuine issues of material fact, and that he has
made a sufficient showing on each of the essential elements
of his case. Emmett v. Johnson, 532 F.3d 291, 297
(4th Cir. 2008); Hinkle v. City of Clarksburg, 81
F.3d 416, 421 (4th Cir. 1996). Therefore, summary judgment is
appropriate when the moving party points out a lack of
evidence to support an essential element of his or her claim.
See Blair v. Collonas Shipyards Inc., 52 F.Supp.2d
687, 692 (E.D. Va. 1999), aff'd 203 F.3d 819
(4th Cir. 2000).
diversity case, a federal court must apply the substantive
law of the forum state. See generally Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938). Therefore, the Virginia
law applicable to slip-and-fall cases governs this case.
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