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Lapczynski v. Wal-Mart Stores Inc.

United States District Court, E.D. Michigan, Northern Division

April 20, 2018

ROBERT LAPCZYNSKI, Plaintiff,
v.
WAL-MART STORES INC., Defendant.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DISMISSING COMPLAINT

          THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE.

         On January 9, 2017, Plaintiff Robert Lapczynski filed a complaint in Alpena County Circuit Court naming Wal-Mart Stores, Inc., as the Defendant. ECF No. 1. On February 16, 2017, Wal-Mart removed this case. ECF No. 1. Plaintiff is suing to recover for damages he incurred after slipping and falling in a Wal-Mart store located in Alpena, Michigan, on January 13, 2016. On November 29, 2017, Defendant Wal-Mart filed a motion for summary judgment. ECF No. 15. For the reasons that follow, Wal-Mart's motion will be granted.

         I.

         A.

         The parties agree on a general summary of what occurred on the evening of January 13, 2016.[1] Robert Lapczynski arrived at the Wal-Mart store around 6:30 p.m. Plaintiff Dep. at 13, ECF No. 15, Ex. A. As might be expected for a January day in Michigan, the weather was bad.[2] The parking lot was covered in soft, melting snow. Id. at 14. Plaintiff parked in the first or second row of the parking lot, and then walked to the entrance. Id. at 15. Plaintiff does not recall if it was snowing or raining when he arrived, but he believed that snow had fallen earlier in the day. Id. at 15-16. Given the circumstances, Plaintiffs knew that customers were likely tracking snow and water into the store. Id. at 16.

         The Alpena Wal-Mart store entrance is composed of two sets of sliding doors. Id. When Plaintiff passed through the first set of sliding doors, he noticed two rugs. Id. The first rug was completely saturated with water from foot traffic. Id. In his deposition, Plaintiff explained that “you could walk through it and it looked like a kid splashing in water.” Id. The second rug was not as wet. Id. at 16-17. Although the first half of the second rug was as saturated as the first rug, the last six to eight feet was not covered in standing water. Id. at 17. As he entered, Plaintiff attempted to dry his feet on the driest part of the second rug. Id.

         After passing through the second set of sliding doors, Plaintiff turned right and walked towards the pharmacy. Id. When he was less than ten feet from the pharmacy counter, Plaintiff slipped and fell. Id. at 17. Plaintiff testified at his deposition that the water which caused him to slip came from the floor, but he also admitted that his shoes were likely wet at the time. Id. at 23- 24, 44.

         B.

         After Lapczynski fell, Joseph Bouchey, the store manager on duty at the time, arrived at the scene. Bouchey testified at his deposition that, when he arrived, he noticed that Lapczynski had snow and slush melting off his shoes. Bouchey Dep. at 37, ECF No. 15, Ex. D. Bouchey also testified that Lapczynski's shoes had minimal tread. Id. at 38-39. Bouchey then prepared a Customer Incident Report. The Customer Incident Form contains a space for the customer to explain “in [their] own words, the events leading up to the incident.” Cust. Incident Rep., ECF No. 15, Ex. B. At his deposition, Bouchey explained that Lapczynski “did not want to” fill out the report himself, and so Bouchey asked Lapczynski what happened and then Bouchey filled out the report himself. Bouchey Dep. at 41-42. Lapczynski read over the completed report, agreed that it was accurate, and signed it. Id. at 42.

         The Customer Incident Report provides the following description: “Slipped on water from shoes in front of Pharmacy wearing Tennis Shoes[;] No. Tread[;] Right Knee and Ankle.” Cust. Incident Rep. The Report was signed by both Lapczynski and Bouchey. Id. At the deposition, Bouchey was questioned, at length, about whether Lapczynski had specifically said that his shoes had “no tread, ” or if Bouchey had added that fact based on his own observation.[3] Bouchey Dep. at 42-45. Bouchey repeatedly asserted that he would never add additional language to a customer incident report after the customer signs it. Id. at 45. However, Bouchey also acknowledged that the incident occurred too long ago for him to specifically remember whether Lapczynski told Bouchey that his shoes had no tread. Id. at 44.

         Several Wal-Mart employees also provided witness statements. Bouchey wrote a witness statement of his own: “Customer had snow/slush on Bottom of Shoes he slipped in front of Pharmacy and Fell his tennis shoes were old and Little to NO Tread on them. He was Complaining about his Ankle and Knee.” Bouchey Statement, ECF No. 15, Ex. H. Brittany Miller, a Wal-Mart associate, provided the following statement:

I observed a gentleman laying on the floor outside of pharmacy drop off window. I noticed on the ground a “skid” mark that had a little water in the shape of his shoe prints as if the water had come off of his shoes. There was mats down at the doors he had come in and a wet floor sign by the window of the pharmacy on the floor.

         Miller Statement, ECF No. 15, Ex. F.

         Angela Burns also provided a statement: “I do maintenance at Walmart & about a half hr before the fall I mopped all the wet spot in pharmacy that I saw. I used a dry mop we keep on hand in the [general merchandise] vestibule for wet spills on the front end.” Burns Statement, ECF No. 15, Ex. G.

         Lapczynski argues that the unsworn statements of Mr. Bouchey, Ms. Miller, and Ms. Burns should be disregarded because they are hearsay. The representations made in the unsworn statements are immaterial for the issues currently before the Court. The surveillance video footage corroborates much of the assertions (including that there were two mats placed at the entrance to the store where Lapczynski entered and that a wet floor sign had been placed on the ground less than ten feet from where Lapczynski fell). Bouchey was questioned about the factual representations made in his statement at his deposition, and so that testimony will be primarily relied upon. The only uncorroborated assertions found in the unsworn statements is the indication that Lapczynski slipped on water which came from his own shoes, not water tracked in by other people. An issue of fact exists on that point. But, as explained below, that issue of fact is not material to the legal issues currently framed.

         C.

         The parties dispute the extent and scope of Wal-Mart's attempts to mitigate the hazard posed by melting snow. At his deposition, Bouchey was asked about Wal-Mart practices for mitigating water hazards related to inclement weather. Bouchey Dep. at 8. He explained: “Snow and rain, we put mats out, we dry mop the floors, put cones out to make sure that people know there could be a possibility of water on the floor.” Id. He went on to indicate that “[e]very associate” has a “duty” to “let somebody know so the mats could be put in place or fans to help dry floors” when “they see water on the floor or it's raining.” Id. at 9.

         According to Bouchey, the day in question “was snowy, rainy, just a nasty day.” Id. at 10. For that reason, Wal-Mart employees were “dry mopping often.” And, similarly, the store “had fans out and the mats and the cones.” Id. Bouchey explained that sometimes, when one entrance is wetter than the other, maintenance will move the fans to the entrance more in need of drying. Id. at 17. The pictures of the doors where Lapczynski entered do not depict any fans, and Bouchey admitted that there may not have been any blowing at that entrance at the time of the incident. Id.

         The parties agree that the area where Lapczynski slipped and fell had been dry mopped by a Wal-Mart employee approximately half an hour before the incident. Plaintiff's supplemental brief describes the surveillance footage as follows:

Approximately 35 minutes prior to Plaintiff's entry into the store, a store employee is seen dry mopping the white tiled area near the entrance and in the area by the pharmacy where Plaintiff slipped and fell. The employee does not mop the brown tiled area closer to the entrance near the vestibule where water ...

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