Davis v. Wal-Mart Stores East, LP

          Elizabeth A. Stafford Mag. Judge.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT [17]

          Judith E. Levy United States District Judge.

         Before the Court is Defendant Wal-Mart Stores East, LP's motion for partial summary judgment. (ECF No. 17.) Plaintiff Rosetta Davis brought this case against Defendant alleging premises liability negligence and nuisance. (ECF No. 1.) For the reasons set forth below, Defendant's motion for summary judgment as to premises liability negligence is granted. Plaintiff's nuisance claim is also addressed below.

         I. Background

         On August 7, 2017, Plaintiff was shopping at Defendant's store. (ECF No. 22, PageID.220.) While pushing a full-size shopping cart, she turned a corner, took a few steps and then stepped on a hanger, which caused her to slip and fall. (Id.) Plaintiff alleges that she sustained injuries caused by the fall. Additionally, she underwent back surgery in February 2018, and suffered from a post-surgical infection, which Plaintiff alleges also stemmed from the incident at Defendant's store. (ECF No. 17-1, PageID.125-126.)

         Plaintiff testified that she went shopping at Defendant's store and had a few items in her shopping cart before she entered the women's clothing section. (ECF No. 17-1, PageID.117.) Next, she looked right, made a right turn, took about three steps, stepped on a hanger, and fell. (ECF No.17-1, PageID.131.) Plaintiff testified that, before she made the right turn, she looked to make sure her pathway was clear; she stated, “[i]t was very clear down that way.” (ECF No.17-1, PageID.132.)

         Plaintiff testified that she did not see the hanger before stepping on it. (ECF No. 17-1, PageID.119.) But after she fell, she looked for what caused her fall and saw the hanger on the floor. (Id.) When asked if anything was obstructing her view of the hanger on the floor before she fell, she answered, “[n]o.” (Id.) She also confirmed that the hanger on the floor was not hidden in any way. (Id. at PageID.120.) Plaintiff testified that the reason she did not see the hanger before stepping on it was, “because I had stuff right there in my buggy. I mean, well, I had stuff in the top part of my buggy and I'm just browsing and looking where I've got to go, this way of course, and just went over the-over it.” (ECF No.17-1, PageID.131.)

         Plaintiff admitted that she was not looking where she was stepping, and that she would have seen the hanger if she had been:

Q: And you referenced earlier that you were-at the time of your fall you were looking up and scanning the clothes; is that correct?

A. Not looking up, I was just-I wasn't looking. As I turned this corner I was looking toward that way. I wasn't looking at the clothes, I was browsing coming, and as I went to turn that's when I went down, after that.

Q. Okay. If you had been looking at the floor you would have seen the hanger, correct?

A. Oh, yes, definitely. And I would-yeah.

(ECF No. 17-1, PageID.134.)

         Plaintiff's attorney ...