Combs v. Wal-Mart Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

PATTI COMBS,

Plaintiff,

Case No. 1:21-cv-670

v.

JUDGE DOUGLAS R. COLE

WAL-MART, INC.,

Defendant.

OPINION AND ORDER

On October 3, 2019, Plaintiff Patti Combs fell while browsing Christmas

merchandise at a store in Mason, Ohio, owned by Defendant Wal-Mart, Inc., (Wal-

Mart). Claiming that her injuries and attendant medical costs were caused by Wal-

Mart’s negligent maintenance of its facilities, Combs sued Wal-Mart seeking to

recover $250,000. (Compl., Doc. 4). With discovery now closed, Wal-Mart has moved

for summary judgment arguing that Combs failed to adduce evidence to prove her

entitlement to relief. (Doc. 20). For the reasons stated below, the Court GRANTS

Wal-Mart’s Motion for Summary Judgment (Doc. 20) and DISMISSES Combs’s

Complaint (Doc. 4) WITH PREJUDICE.

BACKGROUND

On the day in question, Combs wandered alone through the aisles of the

Mason, Ohio, Wal-Mart store browsing merchandise while wearing flip-flop sandals.1

1 At her deposition, Combs initially disputed the characterization of her sandals as “flip-flops”

and seemed to prefer the term “summer sandals.” (Doc. 18, #107). But she equivocated saying,

“[y]ou can call them flip flops or just sandals.” (Id.). Defendants’ proposed undisputed facts

(Doc. 18, #94–97, 107). After about 20 minutes of meandering without picking up

anything (or handling a cart or basket), Combs entered an aisle in the store

containing Christmas decorations. (Id. at #96, 98, 108). While walking down the aisle

looking at those products, Combs’s foot caught on what she described as a “crack”

between the tiles. She lost her footing, spun around, and fell. (Id. at #98–99, 110). No

one observed this incident. (Id. at #100–01, 196–97). Immediately following her fall,

Combs walked over to the pharmacy to obtain help from an employee. (Id. at #101,

192). The employee recorded his interaction with Combs; there, he stated that Combs

reported that “she slipped on the floor seal crack in between the floor tiles.” (Id. at

#192). The Customer Incident Report that Combs herself reviewed and signed stated

that Combs had “[t]ripped on lines in floor [sic] near [C]hristmas” merchandise. (Id.

at #103–04, 191). The fall caused injuries to Combs’s right arm around her hand and

wrist, which included a break of her right radius and ulna. (Id. at #100, 116–17). She

was eventually treated for those injuries, which required a cast, carpal tunnel

surgery, the placement of screws, and physical therapy to strengthen her digits. (Id.

at #100, 114–18).

Seeking damages, Combs sued Wal-Mart in the Warren County Court of

Common Pleas on October 1, 2021. (Doc. 4, #22). She raised one claim of negligence

based on Wal-Mart’s liability as a property owner to Combs as an invitee. (Id. at #23).

And she sought relief in the amount of $250,000 and costs and fees. (Id. at #24). Wal-

refer to them as flip-flops. (Doc. 20-1 ¶ 6, #303). Combs did not dispute that characterization

but objected to its relevance. (Doc. 21-1, #323). Accordingly, the Court refers to the footwear

interchangeably as either sandals or flip-flops. But the Court’s summary judgment decision

does not turn on whether they were flip-flops, sandals, or another kind of “summer sandals.”

Mart removed the case to federal court on the basis of diversity jurisdiction three

weeks later, (Doc. 1, #1–2), and answered the same day, (Doc. 3). The parties

proceeded to discovery, which was set to close on April 3, 2023. (Doc. 8). But the Court

granted a brief extension of the expert deadlines to April 21, 2023, to permit Combs

to file disclosures related to any rebuttal experts. (2/23/23 Not. Order).

Wal-Mart then moved for summary judgment on May 1, 2023. (Doc. 20). It

argues that Combs (1) has failed to present evidence to establish the existence of a

hazard that caused her fall, (2) cannot overcome the doctrine that bars liability for

open-and-obvious hazards, and (3) identified no evidence tending to prove that Wal-

Mart was aware of any hazard that contributed to her injuries. (Id. at #292–300).

Combs responded in opposition. (Doc. 21). She argues that there is genuine

issue of material fact for the jury by relying on so-called demonstrative evidence

(three photographs labeled Figures 1 through 3) not disclosed during discovery,

coupled with a declaration Combs executed after Wal-Mart had moved for summary

judgment. (Id. at #312; Doc. 21-2; Combs Decl., Doc. 22, #339–40). Wal-Mart then

replied. (Doc. 24). But it also simultaneously filed objections pursuant to Federal Rule

of Civil Procedure 56(c)(2). (Doc. 23). In the latter, it argued that Combs’s citations to

Figures 1, 2, and 3 and her tardy declaration were improper because neither

constituted competent evidence on which the Court could rely. (Id. at #341–43). That

prompted additional briefing—Combs responded in opposition to the stated

objections, (Doc. 25), and Wal-Mart replied, (Doc. 26).

With those briefs filed, the matter is ripe for review.

LEGAL STANDARD

Summary judgment is warranted “if the movant shows that there is no genuine

issue as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). When the non-movant bears the burden of proof at trial,

as is the case here, the movant can establish that there are no genuine disputes of

material fact and that it is entitled to judgment as a matter of law by showing that

the non-moving party lacks evidence to support an essential element of its case.

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel, Schaeffer

& Ebeling Co., 12 F.3d 1382, 1388–89 (6th Cir. 1993). As the Sixth Circuit has made

clear, “the mere existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Int’l Outdoor, Inc. v.

City of Troy, 974 F.3d 690, 697 (6th Cir. 2020) (cleaned up) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)).

In sum, this standard requires the non-moving party, at this stage, to present

some “sufficient disagreement” that would warrant submission of the dispute to a

jury. See Moore v. Phillip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993) (quoting

Anderson, 477 U.S. at 251–52). In making that determination, though, the Court

must view the evidence in the light most favorable to the non-moving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cox v.

Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995).

LAW AND ANALYSIS

Technically, there is only one pending motion on this case’s docket: Wal-Mart’s

summary judgment motion. But because whether or not to grant summary judgment

turns on what evidence is properly in the record, the Court must overcome the

stumbling block created by Wal-Mart’s objections to the figures included in Combs’s

opposition brief and to the declaration attached to it. Once the Court resolves whether

it can consider that evidence, it will turn to the summary judgment analysis.

A. Wal-Mart’s Objections

Wal-Mart objects to specific evidence Combs cites to support her assertions

that there remains a genuine issue of material fact that should reach a jury. Under

Federal Rule of Civil Procedure 56(c)(2), “[a] party may object that the material cited

to support or [to] dispute a fact cannot be presented in a form that would be

admissible in evidence.” These objections “function[] much as [] objection[s] at trial,

adjusted for the pretrial setting. The burden is on the proponent to show that the

material is admissible as presented or to explain the admissible form that is

anticipated.” Stillwagon v. City of Delaware, 274 F. Supp. 3d 714, 737 (S.D. Ohio

2017) (citation omitted). When sustaining an objection, “the Court should use a

scalpel, not a butcher knife” and excise only those portions that lack a proper

foundation. Upshaw v. Ford Motor Co., 576 F.3d 576, 593 (6th Cir. 2009) (cleaned up).

Here, Wal-Mart objects to Combs’ declaration and certain figures in her opposition

brief. The Court addresses them in that order.

1. Combs’s Later-Executed Declaration

Wal-Mart advances two objections to the declaration: (1) that certain

statements lack a proper foundation; and (2) that it constitutes a sham affidavit. (Doc.

23, #343–46).

Wal-Mart’s objections related to foundation are directed at paragraphs 4, 5, 7,

and 8 of Combs’s late-filed declaration. Those paragraphs, respectively, purport to

identify (1) the standard measurements of the tiles at the store, (2) the “usual[]”

nature of the grout in between the tiles, and (3) whether the claimed gap that

supposedly caused Combs to trip looks like the usual color of the grout. (Doc. 22,

#336–37). The problem is that the declaration provides no reason to believe that

Combs would have personal knowledge of these matters. More specifically, Combs

has not established that (1) she has measured the size of the standard tile used for

the store’s floor (let alone established what that standard tile is), (2) she would have

any awareness of the store’s usual choice for grout or caulking, or (3) she can claim

knowledge that the line over which she tripped resembles the standard grout color

(again without even establishing how she knows what that color is). Giles v. Univ. of

Toledo, 241 F.R.D. 466, 469–70 (N.D. Ohio 2007). Combs is correct that she would

have personal knowledge to describe the floor she actually observed. (Doc. 25, #361).

But paragraphs 4, 5, 7, and 8 do not do that. Those paragraphs speculate about the

standard tile and grout throughout the superstore, which means those assertions

sweep beyond Combs’s personal observations from when she stumbled. Gonzalez v.

Parker Hannifin Corp., No. 2:18-cv-212, 2020 WL 13698922, at *3 (E.D. Tenn. Nov.

16, 2020) (striking paragraphs that were speculative and beyond the affiant’s

personal knowledge because plaintiff had failed to explain how she knew details

about the disciplinary records of other employees and how she could demonstrate that

the breaks taken by others were generally known to be unauthorized). Perhaps, she

could have returned to the store to gather such information. But if so, that appears

nowhere in the declaration. And absent something along those lines—details to which

Combs has not testified—these assertions veer outside the scope of Combs’s personal

knowledge. Accordingly, the Court strikes paragraphs 4, 5, 7, and 8 of Combs’s

declaration for lack of foundation.

That leaves Wal-Mart’s sham affidavit objection. The sham affidavit doctrine

bars a party from “creat[ing] a factual issue by filing an affidavit, after a motion for

summary judgment has been made, which contradicts her earlier deposition

testimony.” Reich v. City of Elizabethtown, 945 F.3d 968, 976 (6th Cir. 2019) (citation

omitted). The application of this doctrine turns on whether there is an actual

contradiction between the deposition testimony and to what the plaintiff swears in

her late-filed affidavit or declaration. Id. That said, while “deponents have no

obligation to volunteer information the questioner fails to seek[,] … a deponent may

not ‘duck her deposition[.]’” Id. (citations omitted). So a deponent who refuses to

respond to specific questions about material details of her case may not use a later-

filed affidavit or declaration to answer those questions. Id.

Here, Wal-Mart challenges those statements in paragraphs 6, 9–12, 17, and 19

referring to Combs’s description of the alleged hazard and whether she had a direct

line of sight to it. Wal-Mart argues that the paragraphs should be stricken because

Combs refused to answer related questions when she was deposed. (Doc. 23, #344–

45; Doc. 26, #377–78).

At her deposition, Combs was asked about the floor and the space between the

tiles several times. Combs first testified and reaffirmed that her recollection of the

floor was only that the grout in between the tiles was low (rather than missing)—a

characteristic she “didn’t see [] prior to [her] fall.” (Doc. 18, #93). When asked to

describe what happened, she recounted that she was “completely [] caught”: the whole

incident “happened so fast” that “before [she] knew it” her foot was “caught

in … between the tile … [and she] lost [her] footing.” (Id. at #98). The questioner then

probed Combs’s story with reference to the incident report that a Wal-Mart staff

member completed on the day of her tumble—the staff member recorded that Combs

had reported she “[t]ripped on lines in floor [sic].” (Id. at #191). When asked if the

report correctly recorded what happened and whether the referenced “lines” meant

the “tile lines on the floor,” Combs’s immediate response was to state she “d[id]n’t

know”—justifying this retort by noting she did not author the report. (Id. at #105).

When asked again if the report were incorrect and to explain the cause of her fall,

Combs reiterated that her “foot got caught” on the tile lines without further

elaboration. (Id.).

After a tangent, the deposition testimony returned to this topic, and Combs

underwent a more specific line of questioning about the floor cracks that allegedly

caused her to trip. (Doc. 18, #107 (“So let’s talk about these floor cracks.”)). The

questioner showed her a photograph of a tile floor taken in the store at issue. Combs

noted that she could not confirm that the photograph constituted the exact place

where she tripped. (Id. at #108–09). But the questioner responded by making clear

that he wanted her to answer whether the picture was representative of the type of

hazard that caused her to fall. In other words, were the depicted spaces between the

tiles the “hazard” to which she referred as causing her injuries? (Id. at #109–10 (“I’m

not asking about location again, I’m just asking … for what caused you to

fall[.] … [W]hat I’m showing you in these photographs, is that representative of

something that may have caused you to fall?”)). Combs resisted answering this

clarified question several times before finally responding that she “d[id]n’t know”

what might have caused her to fall other than the mere fact that there were lines

between the tiles and that “it’s a little tough to remember at that [sic] point.” (Id. at

#110). Moreover, while the questioner attempted to have Combs elaborate on her

Complaint’s allegation that there was missing grout in the aisle where she fell, Combs

simply reiterated that “there was an area that [her] foot definitely got caught

on … [that] felt like a crack” before continuing to fixate on whether the photos shown

were of the actual aisle. (Id. at #111–12). And, consistent with her deposition

testimony that she really “didn’t know” what aspect of the floor may have caused her

to fall, nowhere did she reiterate the statement from the Complaint that there was a

“gap” that was seven to eight inches long, and a quarter to a half inch wide, where

caulk or grout was missing.

In contrast—and despite declining to do so at her deposition when given

multiple opportunities to do so—Combs’s sworn statements now magically recount

specific details about the state of the floor and the grout between the tiles. (Doc. 22

¶¶ 6, 9–12, 19, #336–38 (declaring that a length of grout was entirely missing from

between the tiles, there were no remnants of it around this supposed gap, and that

she fell because her foot was caught in the claimed missing gap)). She avers, for

example, that there “is a ¼ to ½ inch gap between tiles,” and that her foot “became

stuck in an area where a seven-to-eight-inch-long piece of caulk was missing between

two of the tiles.” (Id. ¶¶4, 6, #336). Combs cannot “duck” questions at her deposition

despite “having been examined at length” about the exact issue to which she now

confesses knowledge. Reich, 945 F.3d at 976 (cleaned up). And while Combs now

declares she “s[aw] the floor clearly [even] in [her] peripheral,” (Doc. 22 ¶ 17, #337),

that flatly contradicts her deposition testimony during which she claimed she “didn’t

see” what on the floor caused her to fall, (Doc. 18, #93). Given Combs seeks to use

her late-filed declaration to create a genuine issue of fact despite failing to establish

these facts via responsive answers to questions directed at these exact issues at her

deposition—now, gainsaying her prior testimony on the same topics—the Court

declines to credit the newly offered details when assessing the summary judgment

record. Powell-Pickett v. A.K. Steel Corp., 549 F. App’x 347, 352–53 (6th Cir. 2013)

(declining to credit plaintiff’s later-created affidavit providing details about her case

contrary to her deposition testimony, in which “[s]he rejected … many chances to

provide the basics of her lawsuit”).

Combs attempts to suggest her sworn declaration merely supplements her

testimony by highlighting purported consistencies between her statements and her

deposition testimony. (Doc. 25, #363–67).2 But she cannot overcome the conflicts

identified above (e.g., declaring that she observed the spot where she tripped before

falling despite testifying to the contrary or declaring that the grout or caulk was

missing where she tripped despite testifying at her deposition that it was merely low).

(Compare Doc. 18, #93, with Doc. 22 ¶¶ 6, 9–12, 17, 19, #336–38). Sure, Combs is

correct to note that very specific questions about whether broken caulk or grout had

been cleared away were not asked. (Doc. 25, #364–65). But that is on account of

Combs’s refusal at the deposition to provide basic details about the tiles and the

separation between them when repeatedly asked about them. A questioner cannot

reasonably be expected to probe for precise details about an alleged hazard’s condition

when a deponent is not forthcoming about even general descriptions of the hazard.3

2 At several points, Combs tries to cite her unsworn and unverified Complaint to claim her

later-executed declaration is consistent with the summary judgment record. (E.g., Doc. 25,

#363). The problem with that tactic should be so obvious as not to require an explanation.

But to reiterate what well-settled caselaw has made abundantly clear, allegations are not

evidence: “It must not be forgotten that we are dealing with pleadings, not evidence.” Globe

Refin. Co. v. Landa Cotton Oil Co., 190 U.S. 540, 546 (1903) (emphasis added). And Rule 56(e)

does not “permit plaintiffs to get to a jury on the basis of the allegations … coupled with the

hope that something can be developed at trial in the way of evidence to support those

allegations.” First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289–90 (1968).

3 A hypothetical shows where Combs errs. Assume a deponent testifies that he was walking

outside and that his stated reason, when asked what motivated him, was “the fresh air.” And

assume he sought to file a later-executed affidavit affying that he owned a rottweiler and

that he also went outside to walk the dog. It would not be logically inconsistent to choose to

go for a walk for both reasons—walking the dog and getting fresh air. But it would be

impermissible and inconsistent in practice for the deponent to claim that such theoretical

consistency meant his later-executed affidavit only supplemented his deposition testimony—

especially if the presence of the dog, or a full accounting of the reasons for the walk, is clearly

relevant to the case at issue. The deponent omitted mention of his dog when asked point-

blank why he walked outside. He cannot now introduce the dog into the picture and try to

defend his newly supplied detail regarding a relevant issue on the grounds that there were

no specific questions about the dog at the deposition. Rather than supplement the deposition

testimony, the deponent shirked giving a fully responsive answer at the deposition and

Powell-Pickett, 549 F. App’x at 352–53 (“It is ‘impossible logically to distinguish

between the case of a downright refusal to testify and that of evasion by obvious

subterfuge and mere formal compliance.’” (quoting United States v. Appel, 211 F. 495,

495 (S.D.N.Y. 1913) (L. Hand, J.))).

In short, “[a]ll [] signs point the same direction; [Combs] made no attempt to

clarify or [to] qualify her answers on th[ese] issue[s] at her deposition[,] … did not

claim that her earlier testimony reflected confusion about the questions asked,” and

has not claimed that she came upon new evidence about where she fell that she did

not possess at her deposition, any of which could provide some explanation for her

terse and meager deposition responses. Reich, 945 F.3d at 977. That compels the

conclusion the Court has reached here—that these paragraphs in Combs’s

declaration create a sham issue of fact. So the Court will also strike paragraphs 6, 9–

12, 17, and 19 of Combs’s late-filed declaration, which impermissibly attempt to

manufacture post hoc a genuine issue of material fact.

2. Figures 1–3

Next is Wal-Mart’s objection that Combs’s figures—purporting to hypothesize

how Combs’s foot could have been caught in a space between tiles without grout or

caulk—constitute inadmissible evidence because of a lack of proper foundation. (Doc.

23, #346–47). The figures Combs produced claim to describe “how [Combs’s] shoe

became stuck in the gap.” (Doc. 21, #312). That said, Combs (unsurprisingly)

instead lay in wait until the summary judgment motion was filed to pile on the details. “If

such [details were responsive to the deposition questioning, the deponent] … was required to

bring it out at the deposition.” Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986).

Rule 56 does not permit such gameplaying.

acknowledges that these figures do not constitute direct evidence of the events. In

other words, she admits that “[t]hese are not photographs of the incident.” (Id.).

Rather, they are at most depictions of what could have happened. But there is a

central problem with Combs’s representation that the images “accurately

demonstrate how Ms. Combs’s [footwear] became stuck in the gap.” (Doc. 21, #312).

For the images to be admissible evidence of the mechanics for how Combs fell, she

needs to provide competent evidence properly laying a foundation that the

measurements used to recreate the alleged hazard are in fact accurate. See Fed. R.

Evid. 901(a). But no such evidence has been introduced. And that means the Court

must disregard the images as lacking a sufficient foundation to constitute a valid

recreation of the accident.

Combs objects that the images are based on “her own first-hand knowledge.”

(Doc. 25, #358). And by that, it appears Combs is referring to the assertions in her

declaration about the claimed size of the space between the floor tiles in the Wal-

Mart store generally and the seven-to-eight-inch-long gap where the caulk was

allegedly missing. (Doc. 22 ¶¶ 4, 6, #336). But for the reasons stated above, Combs

cannot cite those assertions to lay a foundation for Figures 1–3—the Court has struck

the relevant paragraph from Combs’s sworn declaration. See supra Section A.1. In

other words, Combs has no basis for claiming she made any measurements of the tiles

and spaces between them where she purportedly fell. In fact, rather than identify

where, Combs’s deposition testimony made clear that she could not explain or identify

the location the purported incident occurred. (Doc. 18, #109 (stating she “d[id] not

recall exactly” where in the aisle she fell); id. at #110 (In response to question about

what caused Combs to fall, she testified, “I don’t know. That day was—it’s a little

tough to remember at that point. After my fall, things became a little bit tough.”)).

And without that, Combs cannot identify competent record evidence to lay a proper

foundation for Figures 1–3, thereby rendering them only bald-faced conjecture.

Accordingly, Combs’s attempt to repackage them as “demonstrative evidence” is of no

moment. (Doc. 25, #358–59). Without a proper foundation, the images, even if

demonstrative, cannot be considered as part of the record. Bard v. Brown Cnty., No.

1:15-cv-643, 2018 WL 11357533, at *3 (S.D. Ohio Dec. 31, 2018) (noting that because

“[d]emonstrative exhibits are pedagogical devices used to aid a jury’s understanding

of … underlying evidence[,] … [they are] more akin to argument than evidence, and

the Court does not consider them evidence standing alone”).

But the problems with the figures go even beyond that. Assume for the moment

that she had substantiated that the “gap” was ¼” to ½” wide as alleged. (Doc. 4 ¶ 5,

#22). The “gap” she uses in the demonstrative photos, according to the depicted ruler,

is ⅝”—25% wider than the maximum gap size to which she attested, even in her late-

filed declaration. (Compare Doc. 21, #312, with Doc. 22 ¶ 4, #336). Then consider the

“sole” that is depicted in the figures. Clearly, the relative sizes of the gap, on one

hand, and the sole depth, on the other, matter greatly to the depicted accident

mechanism. But nowhere, not even in the late-filed declaration, does Combs offer any

evidence substantiating that the sole depth in the figures corresponds to the footwear

Combs was wearing. In short, even assuming that a lay witness could provide a

sufficient foundation for the accident mechanism depicted in the figures (a separate

issue and one the Court does not reach), the “demonstratives” here are not fair

representations of even Combs’s own account of events from her late-filed declaration.

So the Court will not rely on them.

* * *

Altogether, the Court sustains Wal-Mart’s objections to and consequently

strikes paragraphs 4–12, 17, and 19 of Combs’s declaration, (Doc. 22, #336–38), and

Figures 1, 2, and 3, (Doc. 21, #312), from the summary judgment record.

B. Summary Judgment

Having settled on the proper scope of the summary judgment record—which is

limited to Combs’s deposition testimony, (Doc. 18), her sworn declaration sans

paragraphs 4–12, 17, and 19, (Doc. 22), and Figures 5–9 provided in line in Combs’s

opposition brief, (Doc. 21, #314–18)—the Court next turns to the pending summary

judgment motion. To merit entry of judgment, Wal-Mart must show there is an

absence of evidence for Combs to prove at least one of the elements of her claim. “To

prevail in a negligence action, a plaintiff must demonstrate that (1) the defendant

owed a duty of care to the plaintiff, (2) the defendant breached that duty, and (3) the

defendant's breach proximately caused the plaintiff to be injured.” Lang v. Holly Hill

Motel, Inc., 909 N.E.2d 120, 122–23 (Ohio 2009). As this negligence claim is based on

premises liability and there is no dispute that Combs was an invitee of Wal-Mart,

Wal-Mart “had a duty to exercise ordinary care and to protect [Combs] by

maintaining the premises in a safe condition.” Id. at 123 (cleaned up). But if the

danger causing the alleged harm is “open and obvious,” Wal-Mart owes Combs no

duty of care because it “may reasonably expect that persons entering the premises

will discover those dangers and take appropriate measures to protect themselves.”

Id. Similarly, Wal-Mart’s duty extends only to those dangers posing an unreasonable

risk of harm of which it has actual or constructive knowledge. Goodin v. Kroger Co.,

No. CA93-01-009, 1993 WL 220246, at *2 (Ohio Ct. App. June 21, 1993).

In its motion, Wal-Mart contends that summary judgment is proper because

(1) Combs did not describe the hazard beyond mere speculation; (2) Combs has failed

to present evidence that Wal-Mart had notice of the alleged hazard; and (3) the

hazard, assuming it existed, is open and obvious. (Doc. 20, #292–300). With the

express reminder that Combs cannot overcome the summary judgment hurdle unless

she proffers evidence—she cannot rest on the combination of unsworn allegations and

speculation, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289–90 (1968);

see supra note 2—the Court finds it need address only the first two issues. As

explained further below, Combs’s wholesale lack of evidence to prove either Wal-

Mart’s duty or breach compels a dismissal of her negligence claim, thereby obviating

the need to reach Wal-Mart’s alternate open-and-obvious argument.

1. Hazard4

Under Ohio law, “the failure to identify or explain the reason for a fall which

occurs while a plaintiff is on property owned by a defendant precludes a finding that

4 Though not argued, the Court notes there may be a threshold problem with the alleged

hazard here—it may not be actionable under Ohio law. McGuire v. Sears, Roebuck & Co., 693

the defendant acted negligently.” Howington v. Hoerst, 515 N.E.2d 977, 978 (Ohio Ct.

App. 1986). The Court agrees with Wal-Mart that Combs fails to meet her burden on

this front.

Combs’s deposition testimony provides only vague details suggesting that her

foot caught on something on the floor, thereby causing her to fall: “I completely was

caught [by surprise]. And before I knew it, … it happened so fast. … My foot got

caught … in between the tile … [and] I lost my footing.” (Doc. 18, #98). At no point

during the deposition testimony did Combs provide a more concrete explanation of

what happened other than to state that her foot caught on the “tile lines or … the

cracks between tiles.” (Id. at #105; id. at #111 (“I mean, there was an area that my

foot definitely got caught on. It felt like a crack.”)). And when Combs was asked point

blank to explain what in the aisle other than the existence of those lines caused her

N.E.2d 807, 810 (Ohio Ct. App. 1996). “As determined by the Ohio Supreme Court[,] … an

owner of private premises is not liable for injuries sustained as a result of a person tripping

and falling on minor or trivial imperfections in the area traveled.” Id. (citing Helms v. Am.

Legion, Inc., 213 N.E.2d 734, 735 (Ohio 1966)). A gap between tiles ranging from a quarter

to half an inch, as alleged in the Complaint, (Doc. 4 ¶ 5, #22), may fall within the kind of

“minor or trivial imperfections” one would anticipate encountering in a publicly-trodden tiled

floor. Namely, everyday experience teaches that the spaces between tiles often have grout

levels that vary. One need think only of the sidewalk blocks traversed during a typical walk

to work. They are frequently uneven, do not have grout, and usually are spaced a quarter to

half inch apart, or more. Kimball v. City of Cincinnati, 116 N.E.2d 708, 710 (Ohio 1953) (“We

may take judicial notice of the fact which ordinary observation discloses that there is scarcely

a rod in the streets of any city in which there may not be discovered some little unevenness

or irregularity in sidewalks, crosswalks, curbs, or pavements. As the result of various causes,

climatic and otherwise, they are constantly occurring and recurring. Ordinarily they cause

no difficulties. … It is the judgment of this court that the condition of the sidewalk [(two

blocks were uneven with a change in height of between one-half to three-fourths of an inch)]

must be considered a slight defect which, as a matter of law, did not form a basis of a charge

of negligence on the part of the city.”). There can be no doubt that the average person would

take care to manage such (insubstantial) risks. Or at the very least, the law does not impose

on property owners the obligation to attend to such minor hazards on pain of liability.

fall, she equivocated: “I don’t know. That day was—it’s a little tough to remember at

that point.” (Id. at #110). Even taking these oblique descriptions in the light most

favorable to Combs, the Court is left with nothing more than speculation about what

may have happened. Combs’s attempt to create “[a]n inference of negligence []

[can]not arise from mere guess, speculation, or wishful thinking.” Goodin, 1993 WL

220246, at *2; Mines v. Russo’s Stop & Shop, No. 55073, 1989 WL 253888, at *2 (Ohio

Ct. App. Feb. 23, 1989) (finding that deposition testimony referencing a depression in

the pavement where plaintiff fell could not create an inference of negligence when

she “could not clearly say what caused her fall”); cf. Howington, 515 N.E.2d at 978

(concluding that while plaintiff testified at her deposition only that she fell near the

top step of the stairs where her foot was caught, the daughter’s affidavit created a

genuine issue of fact because the daughter attested that she inspected the location

where her mother fell and found loose carpeting and a metal strip sticking up).

Combs does not really contest this lack of evidence; rather, she rests her hat

on her Complaint’s allegation about the gap in the floor purportedly lacking grout or

caulk as well as her declaration to the same effect. (Doc. 21, #313; Doc. 21-1, #323–

25). But again, allegations are not evidence. See supra note 2. And the Court struck

the sworn statements in her declaration offering specific details about the alleged

condition of the floor where she tripped, due to the conflict between those statements

and her deposition testimony, which was, at best, equivocal about the nature of the

hazard. See supra Part A.1. As a result, Combs can identify no record evidence

permitting an inference that she is entitled to relief. (Doc. 21-1, #326 (Combs’s

acknowledgment that she “did not produce any photographs identifying or

establishing a hazard located in the Christmas aisle on date of incident [sic].”)).

Simply, her vague responses at her deposition that her foot was caught on the tile

lines, without any further detail about what that means or how it might have caused

her to trip, does precious little to move the needle past conjecture. And that lack of

evidence of the existence of a hazard forecloses her negligence claim.

At root, it appears she is asking the Court to surmise that, solely because she

tripped and fell, there must have been an unreasonably dangerous condition, which

would require Wal-Mart’s to demonstrate that was not the case. In other words, she

seems to be tacitly invoking the doctrine typically referred to as res ipsa loquitur—

or, “the thing itself speaks.” The notion underlying the doctrine is that, if the type of

accident at issue is one that typically would not occur absent negligence and the

defendant had exclusive control of the instrumentality that caused the accident, then

it is reasonable to assume that the defendant’s negligence caused the accident unless

the defendant can show otherwise. Sherlock v. Strouss-Hirschberg Co., 4 N.E.2d 912,

914–15 (Ohio 1936). The doctrine, in a sense, can be understood as an information-

forcing rule. The party with the best information (the defendant who is maintaining

the premises) now has an incentive to determine how the accident actually occurred

on pain of being held liable if he is unable to offer a sound explanation. Id. at 915.5

5 Res ipsa loquitur “is a salutary rule in some cases. The derailment of a passenger train, for

instance. The injured passenger has no means of knowing the cause of the derailment. He

pleads and proves that the train and tracks were under the sole and exclusive control of the

railway company, that there was a derailment, and that such derailment was the proximate

cause of his injuries. He has made his case, and the law, under the rule of res ipsa loquitur,

The central problem with applying that line of reasoning here is that res ipsa

is strictly limited to accidents of a type that do not occur absent negligence. Jennings

Buick, Inc. v. City of Cincinnati, 406 N.E.2d 1385, 1388 (Ohio 1980) (“[T]hat there

must be evidence tending to prove that the injury ordinarily would not have occurred

if ordinary care had been exercised[] serves to establish the logical basis for the

inference that the plaintiff’s injury was the proximate result of someone’s

negligence.”). But the problem here is that people often trip over their own feet, for

any reason or no reason at all. Ray v. Wal-Mart Stores, Inc., 993 N.E.2d 808, 828

(Ohio Ct. App. 2013) (“[B]ecause multiple inferences may be drawn from the evidence,

[plaintiffs] are not entitled to invoke the doctrine of res ipsa loquitor to infer

[defendant’s] negligence.”). And that is particularly true of people wearing thin-soled

sandals, where the toe of the shoe may catch and turn over merely from friction with

the floor itself (even sans the existence of another hazard). Accordingly, the Court

concludes that res ipsa would not apply on the facts here, which means Combs must

prove that the accident occurred due to an unreasonably unsafe condition, not that

Wal-Mart must disprove that allegation. And on the record here, Combs has not

offered admissible evidence to carry that burden.

2. Notice

Separately, even assuming the Court could indulge Combs’s speculation about

the nature of the hazard, she has presented no evidence that Wal-Mart had actual or

says to the railway company: ‘Explain this derailment, remove this inference of negligence,

or respond in damages.’” Sherlock, 4 N.E.2d at 915.

constructive notice of that hazard, which is necessary to establish Wal-Mart’s duty to

her with respect to that hazard. Goodin, 1993 WL 220246, at *2. Nothing in the

summary judgment record would enable a Court to draw any inference about Wal-

Mart’s notice. The sole basis for Combs’s theory that notice of some alleged hazard

can be imputed to Wal-Mart are the statements in her declaration that the floor had

no remnants of broken grout around where she tripped, which implies the area had

been swept. (Doc. 21, #311–12 (citing Doc. 22 ¶¶ 9–10, #337)). But those assertions

are outside the scope of the record. See supra Part A.1. And her failure to articulate

the nature of the hazard that caused her tumble at her deposition means Combs has

put forward nothing about this supposed hazard that would permit the Court to find

Wal-Mart had any form of notice. The lack of notice is fatal to Combs’s claim because

that means, as a matter of law, Wal-Mart owed Combs no duty of care with respect

to the alleged hazard (assuming it even existed). Goodin, 1993 WL 220246, at *2.

* * *

For both the elements of duty and breach, Combs lacks evidence to support her

negligence claim.6 She has not identified a genuine issue of fact about the existence

6 Because the Court must dismiss the action due to Combs’s wholesale lack of evidence to

support her negligence claim (failing even to retain an investigator to visit the store and to

take pictures of the location of the accident, or at least failing to report the results of any such

investigation), the Court need not and does not reach Wal-Mart’s alternate argument that it

is not liable because the hazard (whatever that may have been) was open and obvious. (Doc.

20, #298–99). But the Court briefly notes that Combs’s objection to the application of the

open-and-obvious doctrine also faced some obstacles. Her theory is that an unobstructed gap

in the floor tiles was not substantial enough to be readily observed but nonetheless so

substantial as to occasion tort liability. (Doc. 21, #310–11). Ohio law creates challenges for

such claims. See Raflo v. Losantiville Country Club, 295 N.E.2d 202, 204 (Ohio 1973) (“This

attempt to designate a defect as insubstantial for the purpose of notice … but substantial for

of the hazard that allegedly harmed her or about Wal-Mart’s notice of that supposed

hazard (actual or otherwise). Her claim therefore fails.”

CONCLUSION

Simply, Combs has failed to put forward competent evidence sufficient to prove

her entitlement to relief despite having nearly a year of discovery to do so. The gap

in the summary judgment record means she would be unable to meet her burden at

trial. Thus, Combs’s claim fails as a matter of law. Accordingly, the Court GRANTS

Wal-Mart’s, Motion for Summary Judgment (Doc. 20) and DISMISSES Combs’s

Complaint (Doc. 4) WITH PREJUDICE. The Court DIRECTS the Clerk to enter

judgment and to TERMINATE this case on its docket.

SO ORDERED.

February 12, 2024

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

the purpose of imposing liability for a fall ... shows an ambivalence with which we cannot

concur. Injuries occasioned by insubstantial defects should not be actionable unless

circumstances render them ‘unreasonably dangerous.”); see also supra note 4.

7 One passing final remark. What footwear Combs had on ultimately was not material to the

Court’s analysis. But, contrary to Combs’s contention, (Doc. 21-1, #323), the fact that she

wore flip-flop sandals when she fell could certainly be relevant to whether her claim has

merit. There is a non-frivolous argument under Ohio law that Combs’s negligence claim seeks

to hold Wal-Mart liable for a risk created by her “wearing inappropriate footwear[,] ... not

one due to the condition of defendant’s premises.” Cornell v. Aquamarine Lodge, 467 N.E.2d

896, 898 (Ohio Ct. App. 1983).

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