Bernard v. Wal-Mart Inc.

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

SANDRA LEE BERNARD, :

:

Plaintiff, : Case No. 3:20-cv-282

:

v. : Judge Thomas M. Rose

:

WAL-MART INC., et al., :

:

Defendants. :

______________________________________________________________________________

ENTRY AND ORDER DENYING DEFENDANT’S RENEWED MOTION FOR

SUMMARY JUDGMENT (DOC. NO. 42)

______________________________________________________________________________

Presently before the Court is Defendant’s Renewed Motion for Summary Judgment

(“Motion”) (Doc. No. 42). In the Motion, Defendant Wal-Mart, Inc. (“Wal-Mart”) seeks summary

judgment on Plaintiff Sandra Lee Bernard’s (“Bernard”) claim of negligence against Wal-Mart

related to a fall she suffered due to the alleged actions of a Wal-Mart employee.

For the reasons discussed below, Defendant’s Renewed Motion for Summary Judgment is

DENIED.

I. BACKGROUND

On April 27, 2018, Bernard and her grandchildren, CJ and Symphony, arrived at the Wal-

Mart store located at 7725 Hoke Road, Englewood, Ohio. (Doc. No. 42 at PageID 218.) Bernard

purchased a 55” television and had a store associate place it in her shopping cart. (Doc. No. 27 at

PageID 141, 160.) As Bernard and her grandchildren proceeded to the parking lot, she was

provided with assistance in getting the television into her vehicle. (Id. at PageID 142-43.) A store

associate arrived and pushed the cart to Bernard’s vehicle, a 2016 Malibu LT. (Id. at PageID 143-

44.)

Bernard asked the store associate to place the television in the back of her vehicle, but they

were hindered by a console that jutted out from between the front two seats into the rear area. (Id.

at PageID 144-45.) Bernard and the store associate attempted several adjustments of the television,

but were unable to close the doors to the vehicle. (Id. at PageID 145.) Around this time, Bernard

moved to the passenger side of the vehicle and had a knee in the vehicle in an effort “to push it

back from where it was wedged.” (Id.)

At this point, Bernard became concerned that the television box was scratching the seats

of her vehicle. (Id. at PageID 145, 147.) Bernard began pushing the television from her side of

the vehicle, so that it would become unstuck and the store associate could pull it out. (Id. at PageID

148-49.) While attempting to dislodge the television, Bernard changed position and had both her

knees in the vehicle, with her feet hanging outside of the vehicle. (Id. at PageID 149.) Bernard

was able to get the television unstuck, at which point the store associate pushed the television

towards her and she fell out of the vehicle onto the pavement. (Id. at PageID 149-50)

Bernard fell onto her buttocks and hit her head. (Id. at PageID 150-51.) Upon realizing

she had fallen, the store associate and CJ attempted to help Bernard up, but she fell back onto her

buttocks. (Id. at PageID 152.) Bernard returned the next day and filled out an incident report with

the store. (Doc. No. 27-1.)

Bernard filed her Complaint on April 23, 2020 in the Common Pleas Court of Montgomery

County. (Doc. No. 3.) Wal-Mart removed the case to this Court on July 9, 2020, pursuant to this

Court’s diversity jurisdiction under 28 U.S.C. § 1332. (Doc. No. 1.) Bernard filed an Amended

Complaint on July 10, 2020. (Doc. No. 4.) Wal-Mart filed the present Motion on May 12, 2023

(Doc. No. 42) and Bernard filed her opposition on May 30, 2023 (Doc. No. 43). Wal-Mart filed

its reply on June 12, 2023. (Doc. No. 44.) The Motion is fully briefed and ripe for review and

decision.

II. LEGAL STANDARDS FOR SUMMARY JUDGMENT

Rule 56 of the Federal Rules of Civil Procedure provides that “[a] party may move for

summary judgment, identifying each claim or defense--or the part of each claim or defense--on

which summary judgment is sought” and that “[t]he court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment has

the initial burden of informing the court of the basis for its motion and identifying those portions

of the pleadings, depositions, answers to interrogatories, affidavits or sworn declarations, and

admissions on file, that it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Fed. R. Civ. P. 56(a), (c). The burden

then shifts to the non-moving party, which “must set forth specific facts showing that there is a

genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In opposing

summary judgment, the nonmoving party cannot rest on its pleadings or merely reassert its

previous allegations. Id. at 248-49. It also is not sufficient to “simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). The nonmoving party must “go beyond the [unverified]

pleadings” and present some type of evidentiary material in support of its position. Celotex Corp.,

477 U.S. at 324.

A party’s failure “to properly address another party’s assertion of fact as required by Rule

56(c)” can result in the court “consider[ing] the fact undisputed for purposes of the motion.” Fed.

R. Civ. P. 56(e). Additionally, “[a] district court is not ... obligated to wade through and search

the entire record for some specific facts that might support the nonmoving party’s claim.”

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). “The court need consider only

the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

In ruling on a motion for summary judgment, it is not the judge’s function to make

credibility determinations, “weigh the evidence[,] and determine the truth of the matter, but to

determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 255. In

determining whether a genuine issue of material fact exists, the court must assume as true the

evidence of the nonmoving party and draw all reasonable inferences in that party’s favor. Id. at

255; Matsushita, 475 U.S. at 587; Tolan v. Cotton, 572 U.S. 650, 660 (2014). However, the “mere

existence of a scintilla of evidence in support of the” nonmoving party is not sufficient to avoid

summary judgment. Anderson, 477 U.S. at 252. “There must be evidence on which the jury could

reasonably find for the plaintiff.” Id. The inquiry, therefore, “asks whether reasonable jurors could

find by a preponderance of the evidence that the” nonmoving party is entitled to a verdict. Id.

As judgment is sought on claims brought under Ohio law, this Court must apply the law of

Ohio, as interpreted by the Supreme Court of Ohio. Northland Ins. Co.v. Guardsman Prods. Inc.,

141 F.3d 612, 617 (6th Cir. 1998). Specifically, this Court must apply the substantive law of Ohio

“in accordance with the then-controlling decision of the highest court of the State.” Imperial

Hotels Corp. v. Dore, 257 F.3d 615, 620 (6th Cir. 2001). To the extent that the highest court in

Ohio has not addressed the issue presented, this Court must anticipate how Ohio’s highest court

would rule. Id. This is done by looking to other available data, which “include decisions of the

state appellate courts, and those decisions should not be disregarded unless” presented with

persuasive data that the Supreme Court of Ohio would decide otherwise; instead, such decisions

should be given weighty, but not controlling, deference. Allstate Ins. Co. v. Thrifty Rent-A-Car

Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001); see also Babcock Power, Inc. v. Kapsalis, 854 F.

App’x 1, 5 (6th Cir. 2021).

III. ANALYSIS

Wal-Mart makes three arguments in support of its request for summary judgment. First,

Wal-Mart argues that it is entitled to summary judgment because the incident was not foreseeable

to Wal-Mart. (Doc. No. 42 at PageID 286.) Second, Wal-Mart argues that Bernard cannot

establish the negligence elements of breach or causation. (Id. at PageID 287.) Third, Wal-Mart

argues that Bernard’s claim is precluded because she assumed the risk. (Id. at PageID 290.)

It is well-settled in Ohio that the elements of negligence are: “(1) the existence of a legal

duty, (2) the defendant’s breach of that duty, and (3) injury that is the proximate cause of the

defendant’s breach.” Wallace v. Ohio DOC, 96 Ohio St. 3d 266, 274, 2002-Ohio-4210, ¶ 22, 773

N.E.2d 1018, 1025-26 (Ohio 2002) (citing Mussivand v. David, 45 Ohio St. 3d 314, 318, 544

N.E.2d 265, 270 (Ohio 1989)). Wal-Mart’s arguments attack each element of negligence, and the

Court will deal with each argument in turn.

A. Foreseeability

Wal-Mart first argues that it could not have foreseen the incident that occurred and,

consequently, no duty applies under Ohio law. (Doc. No. 42 at PageID 286.)

Under Ohio law, “[t]he existence of a particular party’s duty ‘depends on the foreseeability

of the injury.’” Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St. 3d 677, 680,

693 N.E.2d 271, 274 (Ohio 1998). The Ohio Supreme Court set forth the applicable test for

foreseeability as “whether a reasonably prudent person would have anticipated that an injury was

likely to result from the performance or nonperformance of an act.” Menifee v. Ohio Welding

Prod., Inc., 15 Ohio St. 3d 75, 77, 472 N.E.2d 707, 710 (Ohio 1984) (citing Freeman v. U.S., 509

F.2d 626, 629 (6th Cir. 1975)). Furthermore, “[t]he foreseeability of the risk of harm is not affected

by the magnitude, severity, or exact probability of a particular harm, but instead by the question

of whether some risk of harm would be foreseeable to the reasonably prudent person.” Cromer v.

Children’s Hosp. Med. Ctr. of Akron, 2015-Ohio-229, ¶ 24, 142 Ohio St. 3d 257, 263, 29 N.E.3d

921, 929 (Ohio 2015). Thus, “the existence and scope of a person’s legal duty is determined by

the reasonably foreseeable, general risk of harm that is involved.” Id.

“‘Ordinarily, the existence of both negligence and proximate cause are, in a jury trial,

questions of fact for the determination of the jury under proper instructions from the court. . . .’”

Strother v. Hutchinson, 67 Ohio St. 2d 282, 288, 423 N.E.2d 467, 471 (Ohio 1981) (quoting

Clinger v. Duncan, 166 Ohio St. 216, 223, 141 N.E.2d 156, 162 (Ohio 1957)); see also Gin v.

Yachanin, 75 Ohio App. 3d 802, 804, 600 N.E.2d 836, 838 (Ohio Ct. App. 1991) (“it is established

law that the issues of proximate cause, intervening cause and foreseeability are generally questions

for the jury…”); Delta Fuels, Inc. v. Consol. Env’t Servs., Inc., 2012-Ohio-2227, ¶ 36, 969 N.E.2d

800, 807 (Ohio Ct. App. 2012) (“the question of what is or is not foreseeable to a reasonable person

in the position of the defendant is normally a jury question…”).

Wal-Mart argues that the store associate “had no ability to perceive [Bernard]’s actions”

and that he could not have “perceived, anticipated, or presumed that his conduct. . . would result

in injury to [Bernard].” (Doc. No. 42 at PageID 287.) These arguments are unsupported by the

evidence presented to this Court. Wal-Mart does not cite to a deposition or affidavit from the store

associate. Nor does Wal-Mart cite any other piece of evidence that demonstrates that the store

associate did not know where Bernard was. Indeed, based on the evidence presently before the

Court, a reasonably prudent person may well have anticipated that shoving a box across the

backseat of vehicle may injure a person standing on the other side of that vehicle in some way.

The lack of evidence on this point raises a genuine issue of fact that a jury must decide.

B. Breach and Causation

Wal-Mart further argues that Bernard cannot establish the negligence elements of breach

of duty or causation. (Doc. No. 42 at PageID 287.) The Court will handle each element in turn.

i. Wal-Mart’s Duty to Bernard

Wal-Mart argues that it owed no duty to Bernard because the store associate that assisted

her in loading the vehicle was acting at her direction. (Id. at PageID 288.) In support of this

argument, Wal-Mart points to the principles of static versus active negligence in cases involving

business invitees. (Id. at PageID 287-88)

“[S]tatic or passive conditions, such as preexisting latent defects, are legally distinct from

claims averring active negligence by act or omission,” in premises tort claims. Simmons v. Am.

Pac. Enters., LLC, 164 Ohio App. 3d 763, 2005-Ohio-6957, ¶ 20 (Ohio Ct. App. 2005). “The

distinction between static and dynamic forms of negligence is legally significant, because it

directly correlates to the two separate and distinct duties an occupier owes its business invitees:

(1) static conditions relate to the owner’s duty to maintain its premises in a reasonably safe

condition, including an obligation to warn its invitees of latent or hidden dangers, while (2) active

negligence relates to the owner’s duty not to injure its invitees by negligent activities conducted

on the premises.” Id. (citing Perry v. Eastgreen Realty Co., 53 Ohio St.2d 51, 52 (Ohio 1978)).

Wal-Mart argues that its store associate was not acting negligently because he volunteered

himself to help in response to Bernard’s request for assistance in loading the TV into her car and

he was acting at the direction of Bernard. (Doc. No. 42 at PageID 288.) However, this recitation

of events does not appear to completely square with the record cited by Wal-Mart. The portion of

Bernard’s deposition testimony cited by Wal-Mart for the proposition that she requested assistance

states:

The people were there and we stopped there because -- and the girl, they asked me

who was going put that -- because I guess, like, they like to see that -- who was

going to help me put it up there. But I said, ‘I’m not putting it in there.’ They said,

‘Well, make your grandson.’ I said, ‘I don’t think so.’ They called and -- called

somebody to come up to take the TV out, you know, to put it in the car.

(Doc. No. 27 at PageID 142.) The facts are convoluted to say the least, but at least raise a question

of whether Bernard asked for assistance or whether Wal-Mart stopped her and determined that she

needed assistance.

Wal-Mart cites a separate portion of Bernard’s deposition testimony for the assertion that

the store associate was acting at her direction. Wal-Mart similarly misconstrues the deposition

testimony it cites for this point. First, Wal-Mart argues that, “at the time the incident occurred, the

Store associate was not mishandling the television box and was attentively following the sole

directions of [Bernard].” (Doc. No. 42 at PageID 288 (emphasis in original).) Wal-Mart cites to

a quote from Bernard stating “[y]ou gone scratch my seat up. So take it out, just put in the trunk.”

(Id. (citing Doc. No. 27 at PageID 147.)) Unfortunately, the chronology is unclear because Wal-

Mart clarified on the next page of the deposition transcript that it was interested in the events prior

to Bernard’s fall without clarifying whether the prior quote was before or after Bernard’s fall.

(Doc. No. 27 at PageID 148.)

Second, during the moments leading up to the accident, Bernard’s deposition testimony

states:

I said, ‘Stop.’ I said, ‘Don’t push.’ I said, ‘I’m going to – it’s stuck here. I’m going

move – I’m going get it over.’ And once I leveled it up, he pushed the box and I -

- I just flew back.

(Doc. No. 27 at PageID 150.) While this portion of testimony certainly demonstrates that Bernard

was informing the store associate of what she was doing prior to the incident, a jury could conclude

that she was not giving him directions. Moreover, the deposition testimony is entirely consistent

with Bernard informing the store associate of what she was doing and the store associate pushing

the television box into Bernard without warning, a series of events for which a jury may reasonably

find a breach on the part of Wal-Mart.

Therefore, the Court finds that a genuine issue of fact exists as to whether the store

associate was negligent in loading the television into the vehicle.

ii. Causation

Wal-Mart argues that the evidence of causation is insufficient for two reasons. First, Wal-

Mart argues that Bernard’s injuries were not the natural and probable consequence of the conduct

of the store associate. (Doc. No. 42 at PageID 289.) Second, Wal-Mart argues that Bernard’s

conduct was an intervening cause that broke the causal chain. (Id. at PageID 290.)

Ohio common law has long required a plaintiff to prove that a particular defendant caused

his or her injury through negligence. Specifically, the Ohio Supreme Court has held, and

reaffirmed on multiple occasions, that:

The rule is elementary, that the defendant in an action for negligence can be held

to respond in damages only for the immediate and proximate result of the negligent

act complained of; and in determining what is direct or proximate cause, the rule

requires that the injury sustained shall be the natural and probable consequence of

the negligence alleged; that is, such consequence as under the surrounding

circumstances of the particular case might, and should have been foreseen or

anticipated by the wrongdoer as likely to follow his negligent act.

Foss-Schneider Brewing Co. v. Ulland, 97 Ohio St. 210, 218, 119 N.E. 454, 457 (Ohio 1918)

(quoting Miller v. Baltimore & Ohio Southwestern R.R. Co., 78 Ohio St. 309, 325, 85 N.E. 499,

504 (Ohio 1908)); see also Jeffers v. Olexo, 43 Ohio St. 3d 140, 142-43, 539 N.E.2d 614, 616-17

(Ohio 1989); Sutowksi v. Eli Lilly & Co., 82 Ohio St. 3d 347, 351, 696 N.E.2d 187, 190 (Ohio

1998). Generally, causation is a question of fact for the jury. Reiger v. Giant Eagle, Inc., 2019-

Ohio-3745, ¶ 11, 157 Ohio St. 3d 512, 516, 138 N.E.2d 1121, 1125 (Ohio 2019) (citing Renfroe

v. Ashley, 167 Ohio St. 472, 475, 150 N.E.2d 50, 52 (Ohio 1958)); Strother, 67 Ohio St. 2d at 288

(quoting Clinger, 166 Ohio St. at 223) (“‘Ordinarily, the existence of both negligence and

proximate cause are, in a jury trial, questions of fact for the determination of the jury under proper

instructions from the court. . . .’”); see also Gin, 75 Ohio App. 3d at 804 (“While it is established

law that the issues of proximate cause, intervening cause and foreseeability are generally questions

for the jury…”).

Wal-Mart first argues that Bernard’s injuries were not the natural and probable

consequence of the store associate’s conduct because he could not have foreseen the accident.

(Doc. No. 42 at PageID 289.) In support of this argument, Wal-Mart argues that the store

associate’s view of Bernard was obstructed and that there is no evidence that the store associate

knew how Bernard had positioned herself. (Id. at PageID 289-90.) However, the portion of

Bernard’s testimony Wal-Mart cites simply states that the television box was stuck in the corner

of the vehicle. (Doc. No. 27 at PageID 148-49.) There is no testimony from the store associate or

any other witness on what the store associate could or could not see; thus the Court is required to

rely solely on the portions of Bernard’s testimony cited by Wal-Mart. Nowhere in the cited

portions does Bernard indicate that the store associate’s view was entirely obstructed or what he

could see or that he could not see her.

Wal-Mart next argues that Bernard’s own conduct was an intervening cause that broke the

causal chain. (Doc. No. 42 at PageID 290.) Wal-Mart argues that Bernard’s directions to the store

associate and her decision to place herself in a “precarious position” are intervening causes. (Id.)

Moreover, Wal-Mart alleges that Bernard placed her knees in the vehicle without bracing herself

and without the store associate’s knowledge. (Id.) As discussed above, whether Bernard was

directing the store associate and what the store associate was able to see of Bernard are unclear

from the record currently before the Court. Moreover, causation is generally a question of fact for

the jury to determine. Reiger, 2019-Ohio-3745, at ¶ 11 (citing Renfroe, 167 Ohio St. at 475).

Questions of fact exist here as to the store associate’s knowledge of Bernard’s positioning and

whether she was directing him at the time of the accident.

Therefore, genuine issues of fact exist as to causation.

C. Assumption of the Risk

Wal-Mart finally argues that Bernard voluntarily exposed herself to a known risk, which,

under the doctrine of assumption of the risk, negates the duty and breach elements of negligence.

(Doc. No. 42 at PageID 290.)

“It is well settled that Ohio law recognizes three separate types of the defense of assumption

of the risk: express, primary, and implied.” Crace v. Kent State Univ., 2009-Ohio-6898, ¶ 11, 185

Ohio App. 3d 534, 538, 924 N.E.2d 906, 908 (Ohio Ct. App. 2009). Wal-Mart raises the defense

of primary assumption of risk; therefore, the Court will only address this type.

“[P]rimary assumption of the risk negates a negligence claim because no duty is owed to

protect against the inherent risks….” Crace, 2009-Ohio-6898 at ¶ 15 (citing Gentry v. Craycraft,

2004-Ohio-379, ¶ 9, 101 Ohio St. 3d 141, 144, 802 N.E.2d 1116, 1119 (Ohio 2004)). “In order to

succeed on a primary assumption of the risk defense, it must be shown that the plaintiff: (1) had

full knowledge of a condition; (2) such condition must be patently dangerous to him or her; and

(3) he or she must voluntarily expose himself or herself to the hazard created.” Ellis v. Greater

Cleveland RTA, 2014-Ohio-5549, ¶ 14, 25 N.E.3d 503, 507 (Ohio Ct. App. 2014) (citing Briere v.

Lathrop Co., 22 Ohio St. 2d 166, 174–175, 258 N.E.2d 597, 603 (Ohio 1970)). “[P]rimary

assumption of [the] risk requires an examination of the activity itself and not plaintiff’s conduct.

If the activity is one that is inherently dangerous and from which the risks cannot be eliminated,

then a finding of primary assumption of [the] risk is appropriate.” Morgan v. Kent State Univ.,

2016-Ohio-3303, ¶ 15, 54 N.E.3d 1284, 1289 (Ohio Ct. App. 2016). “This variety of assumption

of risk includes those situations where the risk is so obvious that plaintiff must have known and

appreciated the risk.” Collier v. Northland Swim Club, 35 Ohio App. 3d 35, 37, 518 N.E.2d 1226,

1228 (Ohio Ct. App. 1987) (citing Weaver v. Hicks, 11 Ohio St. 2d 230, 233, 228 N.E.2d 315, 318

(Ohio 1967)). “Because of the great impact a ruling in favor of a defendant on primary assumption

of risk grounds carries, a trial court must proceed with caution when contemplating whether

primary assumption of risk completely bars a plaintiff’s recovery.” Gallagher v. Cleveland Brown

Football Co., 74 Ohio St. 3d 427, 432, 659 N.E.2d 1232, 1237 (Ohio 1996).

Primary assumption of the risk is typically applied in “cases involving sporting events and

recreational activities.” Crace, 2009-Ohio-6898 at ¶ 12 (citing Ballinger v. Leaniz Roofing, Ltd.,

2008-Ohio-1421, ¶ 8 (Ohio Ct. App. 2008)). Because primary assumption of the risk is applied in

situations where there is an obvious and known risk of danger, such as being hit by a ball at a

baseball game, this Court must determine whether loading a television into a car poses such an

obvious risk of danger.

Wal-Mart cites solely to Williams v. Napa, No. CA91-03-028, 1991 Ohio App. LEXIS

5186, 1991 WL 219607 (Ohio Ct. App. Oct. 28, 1991) to support its primary assumption of the

risk argument. However, Williams involves an injury to a customer resulting from the loading of

a vehicle engine block into a truck. Williams, 1991 Ohio App. LEXIS 5186, at *1-2, 1991 WL

219607, at *1. The situations are markedly different. While the plaintiff in Williams did have

some knowledge regarding engine blocks, the risk of moving a vehicle’s engine block differ from

moving a television. It is difficult to say that the act of moving and loading a television is so

obviously dangerous that a person would know and appreciate the risk. Indeed, it is even more

difficult to say that moving and loading a television is an activity “that is inherently dangerous and

from which the risks cannot be eliminated,” making “a finding of primary assumption of [the]

risk… appropriate.” Morgan, 2016-Ohio-3303 at ¶ 15.

It is appropriate in a case such as this to exert the caution advised by the Ohio Supreme

Court when applying the primary assumption of the risk defense. Gallagher, 74 Ohio St. 3d at

432. Wal-Mart’s argument is not well taken in this instance and the Court finds that the primary

assumption of the risk defense does not apply.

IV. CONCLUSION

For the reasons stated above, the Court DENIES Defendant’s Renewed Motion for

Summary Judgment (Doc. No. 42).

DONE and ORDERED in Dayton, Ohio, this Tuesday, July 18, 2023.

s/Thomas M. Rose

________________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE