United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND
L. LUDINGTON, UNITED STATES DISTRICT JUDGE.
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.
parties agree on a general summary of what occurred on the
evening of January 13, 2016. 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. 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.
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.
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,
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.
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. 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.
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.
Statement, ECF No. 15, Ex. F.
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.
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.
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.
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.
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 ...