“Rule 56 leaves no doubt about the obligation of a summary judgment opponent to make her case with a showing of facts that can be established by evidence that will be admissible at trial.”
How later courts described this case
- “Rule 56 leaves no doubt about the obligation of a summary judgment opponent to make her case with a showing of facts that can be established by evidence that will be admissible at trial.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at WINCHESTER
GERALDINE STEPHENS, )
)
Plaintiff, )
) No. 4:21-CV-3
v. )
) Judge Collier
KROGER LIMITED PARTNERSHIP I, )
)
Defendant. )
M E M O R A N D U M
Before the Court is a motion for summary judgment by Defendant Kroger Limited
Partnership I (“Kroger”). (Doc. 23.) On December 18, 2020, Plaintiff, Geraldine Stephens (“Ms.
Stephens”), filed this action in the Circuit Court of Franklin County, Tennessee, against Kroger
asserting claims of negligence against Kroger due to a slip-and-fall incident. (Doc. 1-1.) On March
16, 2022, Ms. Stephens timely responded in opposition. (Doc. 26.) Kroger did not file a reply to
Ms. Stephens’s response.
For the reasons articulated below, the Court will DENY Kroger’s motion for summary
judgment (Doc. 23).
I. BACKGROUND1
On October 23, 2020, Ms. Stephens visited Kroger located at 1840 Decherd Boulevard, in
Decherd, Tennessee. (Doc. 1-1 at 1.) While Plaintiff was shopping at Kroger, she slipped and fell
near the deli aisle. As a result, Ms. Stephens sustained injuries. (Id.)
1 The Court has relied on one main principle in setting out the background of the case. In
deciding a motion for summary judgment as to which the parties dispute any material facts, a court
must view the disputed evidence in the light most favorable to the party responding to the motion—
here, Plaintiff—and draw all reasonable inferences in that party’s favor. See Matsushita Elec.
Due to this incident, Ms. Stephens alleges that Kroger was negligent “[1] in failing to have
policies in place to prevent unsafe conditions, such as a brown liquid substance, from being created
on its flooring…[2] in failing to train its employees, agents and/or managers on policies in place
to prevent unsafe conditions, such as a brown liquid substance, from being created on its
flooring…[, and 3] in failing to supervise its employees, agents and/or managers on implementing
policies in place to prevent unsafe conditions, such as a brown liquid substance, from being created
on its flooring.” (Id. at 6.)
Ms. Stephens asserts that because of Kroger’s negligence she sustained extensive personal
injuries which, at this time, appear to be permanent and continuing in nature. (Id.) Thus, Ms.
Stephens seeks damages in the amount of $900,000.00 to compensate for the sustained harm and
losses. (Id. at 7.)
II. STANDARD OF REVIEW
Summary judgment is proper when “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 moving party bears the burden of demonstrating no genuine issue of material fact exists.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th
Cir. 2003). The Court should view the evidence, including all reasonable inferences, in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir.
2001).
To survive a motion for summary judgment, “the non-moving party must go beyond the
pleadings and come forward with specific facts to demonstrate that there is a genuine issue for
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trial.” Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). Indeed, a “[plaintiff]
is not entitled to a trial on the basis of mere allegations.” Smith v. City of Chattanooga, No. 1:08-
cv-63, 2009 WL 3762961, at *2—3 (E.D. Tenn. Nov. 4, 2009) (explaining the court must determine
whether “the record contains sufficient facts and admissible evidence from which a rational jury
could reasonably find in favor of [the] plaintiff’). In addition, should the non-moving party fail to
provide evidence to support an essential element of its case, the movant can meet its burden of
demonstrating no genuine issue of material fact exists by pointing out such failure to the court.
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
A court may not consider hearsay when deciding a summary judgment motion. A/pert v.
United States, 481 F.3d 404, 409 (6th Cir. 2007). “The proffered evidence need not be in
admissible form, but its content must be admissible. For instance, deposition testimony will
assist a plaintiff in surviving a motion for summary judgment, even if the deposition itself is not
admissible at trial, provided substituted oral testimony would be admissible and create a genuine
issue of material fact.” Bailey v. Floyd Cnty. Bd. of Educ., 106 F.3d 135, 145 (6th Cir. 1997)
However, hearsay statements “are only admissible if they fall under a recognized exception to
the hearsay rule.” Gainer v. Wal-Mart Stores E., L.P., 933 F. Supp. 2d 920, 926 (E.D. Mich. 2013)
(citing Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (“Rule 56 leaves no doubt
about the obligation of a summary judgment opponent to make her case with a showing of facts
that can be established by evidence that will be admissible at trial.”)).
At summary judgment, the Court’s role is limited to determining whether the case contains
sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Ifthe Court concludes a fair-minded jury could
not return a verdict in favor of the non-movant based on the record, the Court should grant
summary judgment. Id. at 251–52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.
1994).
III. DISCUSSION
This is a slip-and-fall case that is governed by the substantive law of Tennessee. To
establish negligence under Tennessee law, a plaintiff must prove the following elements: “(1) a
duty of care owed by defendant to plaintiff; (2) conduct falling below the applicable standard of
care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate,
or legal, cause.” McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 894 (Tenn. 1996).
Additionally, to hold an owner or operator of a premises liable in negligence for a dangerous or
defective condition on its premises, the plaintiff must prove either (1) that the owner or operator
caused or created the condition or (2) that the owner or operator had actual or constructive notice
that the condition existed prior to the accident. Blair v. W. Town Mall, 130 S.W.3d 761, 764 (Tenn.
2004).
In response to Ms. Stephens’s negligence claims, Kroger argues it is entitled to summary
judgment (1) because of a lack of notice, (2) because Plaintiff cannot show a pattern or continuing
condition, and (3) because Plaintiff failed to look where she was going, making her comparatively
at fault. (Doc. 24.) The Court will group the argument regarding the lack of notice and the argument
that Plaintiff cannot show a pattern or continuing condition together under the “Lack of Notice”
heading.
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Because Ms. Stephens has established the existence of a triable issue as to actual or
constructive notice and because the comparative fault defense here is a question that should be
reserved for a jury, summary judgment is improper.
A. Lack of Notice
First, Kroger argues that Ms. Stephens has no evidence Kroger had “actual knowledge of
the presence of the condition complained of until after her fall.” (Doc. 24 at 6.) Kroger asserts that
in Ms. Stephen’s deposition “she did not know how the liquid came to be on the floor, who caused
it to be on the floor, for how long it had been on the floor, or if [Kroger] was even aware of its
presence on the floor.” (Id.) Kroger further argues that due to a lack of evidence by Ms. Stephens,
the only way to place liability on Kroger is to show that it had constructive notice. (Id.) Ultimately,
Kroger argues that Ms. Stephens has failed to show evidence that Kroger had actual or constructive
knowledge of the spill.
In response, Ms. Stephens argues that Kroger did have actual or constructive knowledge
of the spill which caused Ms. Stephens’s fall. (Doc. 27 at 3.) Ms. Stephens submits her own
deposition to support her claim. (Doc. 28.) Specifically, she submits that when asked, “what did
the store manager tell you about how the substance got on the floor?” (Dep. of G. Stephens 121:19–
22), she responded, “he said, the staff was pushing a cart through the store and there was a leakage
somewhere, because he had not got them- not the aisle I come down, but the other aisle, he sent
some people up that way to look and make sure, you know, to get the spills up.” (Depo. of G.
Stephens 122:2-7). From this, Ms. Stephens argues that the store manager had either actual or
constructive notice of the dangerous condition and failed to remedy it or make adequate warnings
of it, which in turn, breached Kroger’s duty to warn its patrons of dangerous conditions. (Doc. 27.)
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There is a genuine dispute of material fact of whether Kroger had actual or constructive
notice that the conditions existed prior to the accident. Ms. Stephens has met her burden by
submitting her depositional testimony about what the Kroger store manager told her. Ms.
Stephens’s testimony about what the store manager told her is not hearsay under Federal Rule of
Evidence 801(d)(2)(D). Federal Rule of Evidence 801(d)(2)(D) states that statements offered
against an opposing party and made by the party’s agent or employee on a matter within the scope
of that relationship and while it existed are not hearsay. Here, the statement was offered by Ms.
Stephens, an opposing party, and those statements were made by Kroger’s agent, the store
manager, regarding the conditions in the store he managed. This evidence is sufficient to make the
statement not hearsay and therefore appropriate to consider for motion for summary judgment
purposes. Furthermore, Kroger does not address this statement by its store manger in its motion
for summary judgment nor does it offer a reply to Ms. Stephens’s response.
Second, Kroger argues that because Ms. Stephens cannot show a pattern or continuing
condition, she has failed to show constructive notice. A plaintiff may establish constructive notice
“by showing a pattern of conduct, or recurring incident, or a general continuing condition
indicating the dangerous condition’s existence” and the “reoccurrence or specific dangerous
condition must be reasonably foreseeable to the owner.” Blair v. W. Town Mall, 130 S.W.3d 761,
765-766 (Tenn. 2004.) Although showing a pattern or continuing condition is a way of proving
constructive notice, the Court’s finding of a dispute of fact as to actual notice, as articulated above,
makes the outcome on the pattern argument irrelevant for motion for summary judgment purposes.
Because there is a genuine dispute regarding whether Kroger had actual or constructive
notice of the spill, the Court cannot rule on this argument as a matter of law, therefore precluding
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summary judgment at this phase. Thus, the Court will DENY the motion for summary judgment
based on Kroger’s lack of notice argument.
B. Comparative Fault
Kroger argues that because Ms. Stephens was injured by a danger that was open, obvious,
and reasonably apparent, liability should be determined under the principles of comparative fault.
(Doc. 24 at 14.) Further, it argues that because Ms. Stephens “has failed to exercise reasonable
care by not avoiding an open and obvious condition, that being a brown puddle or liquid on top of
the white tile floor...she is at least 50% at fault for her own injuries and [Kroger] is not liable.”
Ms. Stephens did not respond to this comparative fault argument.
“Tennessee uses a modified comparative fault system to determine ultimate liability.
Under that system, a plaintiff may only obtain damages if her negligence is less than that of the
defendant.” Wright v. Sam’s E., Inc., No. 15-CV-2354-SHL-CGC, 2016 WL 9450435, at *5 (W.D.
Tenn. May 4, 2016) (citing McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992)). Under
Tennessee law, “in a vast majority of cases, the comparison and allocation of fault is a question of
fact to be decided by the finder-of-fact, that is the jury or the trial court sitting without a
jury.” Henley v. Amacher, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *6 (Tenn. Ct.
App. Jan.28, 2002) (citing Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn.
2000); Turner v. Jordan, 957 S.W.2d 815, 824 (Tenn. 1997); Prince v. St. Thomas Hosp., 945
S.W.2d 731, 735 (Tenn. Ct. App. 1996)). “The task of comparing and allocating fault may be taken
from the jury only when it can be determined beyond question (or alternatively, when reasonable
minds cannot differ) that the plaintiffs fault is equal to or greater than the
defendant’s.” Id. (citing Staples v. CBL Assocs., Inc., 15 S.W.3d 83, 91–92 (Tenn. 2000); Eaton v.
McLain, 891 S.W.2d 587, 592 (Tenn. 1994)).
Prior to 1998, Tennessee courts barred a plaintiff’s recovery if the danger was “open and
obvious.” However, after Tennessee adopted a comparative-fault system, see McIntyre 833
S.W.2d 52 (Tenn. 1992), the Tennessee Supreme Court held that the “open and obvious” defense
was no longer a preclusive bar but was a factor to be considered in balancing the foreseeability
and gravity of harm with the feasibility and availability of alternatives that would have avoided or
prevented the harm. Cohn v. City of Savannah, 966 S.W.2d 34, 43 (Tenn. 1998). The Tennessee
Supreme Court explained,
Whether the danger was known and appreciated by the plaintiff, whether
the risk was obvious to a person exercising reasonable perception,
intelligence, and judgment, and whether there was some other reason for the
defendant to foresee the harm, are all relevant considerations that provide
more balance and insight to the analysis than merely labeling a particular
risk “open and obvious.”
Id.
Here, Kroger argues that summary judgment is appropriate because the facts show that Ms.
Stephens was at least half at fault for failing to notice the brown puddle or liquid on the white tile
floor. However, the brown puddle or liquid on top of the white tile floor may not have been
obvious, and a reasonable jury could conclude that the conduct Ms. Stephens testified to in her
deposition—walking undistractedly, pushing the cart, with her head facing forward at eye level,
with an unobstructed view—fell within a reasonable standard of care. (Doc. 27.) Therefore, it is
not possible for the Court to conclude, at this stage, that Ms. Stephens’s actions were at least fifty
percent at fault in her fall to preclude any recovery as a matter of law. Therefore, summary
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judgment is inappropriate, and the Court will DENY the motion for summary judgment based on
comparative fault.
IV. CONCLUSION
For the foregoing reasons, the Court will DENY Kroger’s motion for summary judgment
(Doc. 23).
An appropriate order will enter.
/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE
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