Harrell v. Walmart Inc

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DIANE HARRELL, )

)

Plaintiff, )

)

v. ) Case No.: 2:22-cv-0643-JHE

)

WAL-MART STORES EAST, LP, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

This is a slip and fall case. Through her now-governing First Amended Complaint,

Plaintiff Diane Harrell brings claims under Alabama state law for negligence and wantonness

against Defendant Wal-Mart Stores East, LP (“Wal-Mart”). (Doc. 19 (“Amended Complaint” or

“Amd. Compl.”))1. The court has diversity jurisdiction pursuant to 28 U.S.C. § 1332, and the

parties have consented to an exercise of plenary authority by a United States Magistrate Judge

pursuant to 28 U.S.C. § 636(c). (Doc. 9). Now pending is Wal-Mart’s motion for summary

judgment filed pursuant to Rule 56, Fed. R. Civ. P. (Doc. 23). The parties have filed briefs (Docs.

24, 31, 33) and evidence (Docs. 25, 32, 35, 36) in support of their respective positions on the

motion, which is now ripe for decision. Plaintiff has stipulated to the dismissal of her wantonness

claim. (Doc. 31 (“Pl. Brief”) at 3 n. 1). Accordingly, Wal-Mart’s motion for summary judgment

1 References to (“Doc(s). ___”) are to the Document Number(s) of the pleadings, motions,

orders, and other materials in the court file, as compiled and enumerated on the docket sheet by

the Clerk of the Court. Pinpoint citations to deposition testimony are to the page of the reporter’s

transcript. Pinpoint citations to surveillance video recordings are to the time stamp display. Unless

otherwise noted, pinpoint citations to other documents are to the page of the electronically filed

PDF document in the court’s CM/ECF system, which may not correspond to pagination on the

“hard copy” of the document presented for filing.

will be granted on that claim. With respect to the remaining claim for negligence, however, the

undersigned concludes that Wal-Mart’s motion for summary judgment is due to be denied.

Standard of Review

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “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.” Rule 56 “mandates the entry of summary judgment, after adequate

time for discovery and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving

party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323.

The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to

establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks

omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

The Court must construe the evidence and all reasonable inferences arising from it in the

light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,

(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-

moving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient

competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,

283 F.3d 1275, 1276–78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-

moving party’s favor when that party’s version of the events is supported by insufficient evidence).

However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat

2

a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)

(citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere

‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be

enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911

F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

Background2

On the evening of January 18, 2021, Plaintiff went to pick up a prescription at a Wal-Mart

Neighborhood Market, operated by Defendant Wal-Mart, located at the Palisades shopping center

in Birmingham. (Amd. Compl., ¶ 5; Doc. 25-2, Deposition of Plaintiff Diane Harrell (“Pl. Depo.”)

at 77-79). The parties do not dispute that, a few seconds after entering the store, Plaintiff suffered

injuries when she slipped and fell, at about 6:13 p.m. and 51 seconds. (See Amd. Compl., ¶¶ 5-6;

Doc. 24 (“Dft. Brief”) at 2).

The parties’ summary judgment evidentiary submissions include three store surveillance

video recordings, which have synchronized time stamp displays. (See Doc. 25-3, Defendant’s

Exhibit C, Bates No. Wal-Mart_000016, display caption “Entrance_Grocery_01_Stanley_Cam”

(“Stanley Cam Video”); Doc. 32-1, Plaintiff’s Exhibit A, Bates No. Wal-Mart_000018, display

caption “Entrance Grocery Vestibule” (“Vestibule Video”); and Doc. 32-5, Plaintiff’s Exhibit E,

Bates No. Wal-Mart_000017, display caption “Entrance_Grocery_02_Deli_Side” video (“Deli

2 Consistent with the review standards applicable to a motion for summary judgment, the

facts recited in this section are taken from the pleadings where undisputed and from evidence

submitted by the parties, construed in the light most favorable to the non-moving party, here, the

Plaintiff. Accordingly, these are the facts accepted for purposes of summary judgment but do not

necessarily represent the actual facts. See Yelling v. St. Vincent’s Health Sys., 82 F.4th 1329, 1332

(11th Cir. 2023).

3

Side Video”)). These depict the area where Plaintiff fell and/or ones adjacent from different

angles, from one hour before the incident to one hour afterwards.3

Plaintiff entered the store building through the front doors and proceeded into a vestibule.

(See Vestibule Video at 6:13:40 to 6:13:45 PM). The vestibule floor area was covered with brown

tiles, which were separated by a transition strip at the threshold of the main grocery store area,

which had lighter, beige colored tiles with small brown flecks. (See Pl. Depo. at 93-94, 124-126;

Ex. 3 to Pl. Depo, Doc. 25-2 at 73; Ex. 2 to Pl. Depo., Doc. 25-2 at 72; Doc. 32-2 at 9-15; see also

generally Vestibule Video; Deli Side Video, Stanley Cam Video). Plaintiff walked through the

vestibule where she passed a Wal-Mart greeter employee who was standing to Plaintiff’s left by

an A-frame sign, handing out masks and holding a computer tablet to keep count of the customers

in the store. 4 (See Pl. Depo. at 85, 91-92, 122-123; Vestibule Video and Deli Side Video at 6:13:40

to 6:13:50 PM; Doc. 25-1, Deposition of Susan Michael (“Michael Depo.”) at 11). Plaintiff

crossed over the threshold transition strip and took a few steps onto the light-colored tiles of the

store area whereupon her foot slid forward, and she fell to the floor. (Stanley Cam Video and

Vestibule Video at 6:13:45-6:13:55; Pl. Depo. at 85, 102-105, 118, 125-128).

The greeter employee, named Susan Michael, saw that Plaintiff had fallen and went over

to help her. (See Vestibule Video, Deli Side Video, and Stanley Cam Video at 6:13:49 to 6:13:55

3 Some of the key disagreements at summary judgment stem from the parties’ differing

interpretations of just what can or cannot be seen on the video recordings and, in turn, of what

facts a jury could reasonably find from them when considered along with other evidence, including

various photographs and witness testimony. The undersigned will not undertake to identify those

disagreements in this “Background” section; rather, they will be addressed as necessary in the

“Discussion” section below.

4 The incident in this case occurred during the COVID-19 pandemic, during which Wal-

Mart had adopted certain safety protocols. (See Smelcer Depo. at 60-61; Michael Depo. at 10-11).

4

PM; Pl. Depo. at 95, 123-124; Michael Depo. at 58-59). Plaintiff acknowledges that, at first, she

did not at first know what had caused her to fall. (Pl. Depo. at 104). She had not seen anything

on the floor before that, explaining that she was looking straight ahead, not down, as she walked.

(Pl. Depo. at 96-97). She also conceded that she had not immediately felt like she had stepped on

something. (Pl. Depo. at 118). According to Plaintiff, however, when the greeter employee came

over, she immediately pointed to an object on the floor and said to Plaintiff, “This is what you

done slipped on, baby.” (Pl. Depo. at 85; see also id. at 104, 106, 110). Plaintiff says she looked

and saw something “up under [her] feet” (id. at 102-103; see also id. at 106, 110, 129), “kind of

caught up … under the heel of [her] boot.” (Id. at 105). Plaintiff states it was a broken piece of

brown tile. (Id. at 100-102, 106).5 Some minutes later, after Plaintiff had been helped into a chair,

she photographed the piece of tile where it laid on the floor. (Id.; see Exhibit 2 to Pl. Depo., Doc.

25-2 at 72; see also Doc. 32-2 (“Incident Report”) at 11-14, Wal-Mart_00010 to _00014; Doc. 25-

5, Deposition of Ronald Culpepper (“Culpepper Depo.”) at 49-54). Plaintiff testified that she

“know[s] for certain” that she slipped on that broken piece of tile because her foot slipped, and the

piece was right up under her heel when she was on the floor. (Pl. Depo. at 105).

Plaintiff estimated that the broken piece of tile was about the width of two of the stickers

being used to mark exhibits during her deposition, or perhaps “a little bigger.” (Pl. Depo. at 111-

12). Those stickers each measure 1 and 3/8 inches in length (see “Defendant’s Exhibit” Sticker

on Exhibit 2 to Pl. Depo., Doc. 25-2 at 72), which would make the subject piece of tile about three

5 For her part, Michael denies pointing out any pieces of broken tile to Plaintiff or otherwise

suggesting to her what she, Michael, might have thought had caused Plaintiff to fall. (Michael

Depo. at 138-139). Of course, Plaintiff’s contrary testimony must be credited at summary

judgment.

5

inches long. Plaintiff further indicated that the piece of tile was about two inches “thick.” (Pl.

Depo. at 112). Plaintiff testified that the side facing up as it sat on the floor when she first saw and

photographed it was the same brown color as the tiles in the vestibule. (Pl. Depo. at 107-108, 137-

138; see also Culpepper Depo. at 52-53 (acknowledging that the color of the subject piece of tile

was “similar” to that of the vestibule tiles)). Plaintiff further states that she noticed, at some point

after she fell, that, just a few feet away, one of the brown tiles of the vestibule floor was cracked

and had an area of missing tile material. (Pl. Depo. at 89, 104-105). Plaintiff testified she believes

this cracked brown tile in the vestibule is the source of the broken tile piece upon which she

allegedly slipped. (Pl. Depo. at 107-108, 115-117, 119-121).

Plaintiff’s right ankle, knee, and leg were injured in the fall, and Wal-Mart employees

called an ambulance. (Pl. Depo. at 85-86, 139-141). When it arrived, emergency medical

technicians treated Plaintiff at the scene and transported her to the emergency department at UAB

Highlands. (Pl. Depo. at 85-89, 148). Plaintiff subsequently filed this action against Wal-Mart,

claiming that it is subject to premises liability for her injuries. (Doc. 1).

Discussion

Wal-Mart has moved for summary judgment on Plaintiff’s negligence claim, which is

governed by Alabama substantive law. See Mendez v. Wal-Mart Stores East, LP, 67 F.4th 1354,

1359 (11th Cir. 2023). However, the procedural aspects of the case, including as it relates to

determining whether evidence is legally sufficient to submit an issue to a jury is a question of

federal law. Goggans v. Target Corp., 2021 WL 5298900, at *3 (11th Cir. Nov. 15, 2021) (citing

6

Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir. 1969)6;

Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1323–24 (11th Cir. 1982)).

The elements of negligence in a premises liability case in Alabama “are the same as those

in any tort litigation: duty, breach of duty, cause in fact, proximate or legal cause, and damages.”

Byrne v. Fisk, ___ So. 3d ___, ___, 2023 WL 3558245, at *2 (Ala. May 19, 2023) (quoting Sessions

v. Nonnenmann, 842 So. 2d 649, 651 (Ala. 2002) (internal quotation marks and further citations

omitted)). Wal-Mart does not contest that Plaintiff suffered injuries when she fell. The elements

contested by Wal-Mart’s motion, rather, relate only to duty, breach, and the proximate cause of

Plaintiff’s fall. Wal-Mart also claims it cannot be liable because the hazard was allegedly “open

and obvious” and thus should have been avoided by Plaintiff.

A. Duty and Breach

“The duty owed by a landowner to an injured party depends upon the status of the injured

party in relation to the landowner's land, i.e., is the injured party a trespasser, a licensee, or an

invitee.” Byrne, ___ So. 3d at ___, 2023 WL 3558245, at *2 (quoting Galaxy Cable, Inc. v. Davis,

58 So. 3d 93, 98 (Ala. 2010)). The parties agree that Plaintiff was an invitee. (Dft. Brief at 19; Pl.

Brief at 10). As such, Wal-Mart owed Plaintiff a “duty to keep the premises in a reasonably safe

condition and, if the premises are unsafe, to warn of hidden defects and dangers that are known to

the landowner but that are hidden or unknown to the invitee.” Byrne, supra (quoting Galaxy Cable,

58 So. 3d at 98).

6 Decisions of the United States Court of Appeals for the Fifth Circuit handed down prior

to October 1, 1981, are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir. 1981) (en banc).

7

However, “[t]he owner of a premises ... is not an insurer of the safety of his invitees ... and

the principle of res ipsa loquitur is not applicable. There is no presumption of negligence which

arises from the mere fact of an injury to an invitee.” Ex parte City of Muscle Shoals, 257 So. 3d

850, 857 n. 2 (Ala. 2018) (citations omitted); see also Goggans, 2021 WL 5298900, at *2. Rather,

the “basis of an invitor’s liability rests upon [his] superior knowledge of the danger which causes

the invitee’s injuries. Therefore, if that superior knowledge is lacking, … the invitor cannot be

held liable.” Byrne, ___ So. 3d at ___, 2023 WL 3558245, at *9 (quoting Denmark v. Mercantile

Stores Co., 844 So. 2d 1189, 1194 (Ala. 2002)); see also Goggans, supra.

1. Open and Obvious Condition

Wal-Mart’s motion for summary judgment does not contest that the broken piece of tile on

the floor, upon which Plaintiff claims to have slipped and fallen,7 might be deemed a hazardous

condition. Wal-Mart argues, however, that it did not breach any duty owed to Plaintiff for a variety

of reasons. Among these is that Wal-Mart did not have a duty to warn Plaintiff because the piece

of tile was an “open and obvious” condition. (Dft. Brief at 19-25). Under Alabama law, the duty

of a possessor of land to warn of or remedy a dangerous condition is obviated when the condition

is “open and obvious,” regardless of whether the landowner might have had notice of it. See Owens

v. Ganga Hosp., LLC, 352 So. 3d 1172, 1175 (Ala. 2021); Daniels v. Wiley, 314 So. 3d 1213,

7 Wal-Mart’s motion for summary judgment challenges not only duty and breach but also

proximate cause. As to the latter, Wal-Mart specifically contests the sufficiency of the evidence

to support that Plaintiff did, in fact, slip on the broken piece of tile. (See Wal-Mart Brief at 14-

18). The undersigned will address that argument separately in the text below. However, for

purposes of considering logically and analytically antecedent issues related to duty and breach,

including whether the piece of tile was open and obvious, the undersigned assumes for the sake of

argument that the evidence is sufficient to support that Plaintiff did slip on that object, as she

claims.

8

1223-25 (Ala. 2020); Ex parte Gold Kist, Inc., 686 So. 2d 260, 261-62 (Ala. 1996); see also

Wallace v. Tri-State Motor Transit Co., 741 F.2d 375, 376-77 (11th Cir. 1984) The open-and-

obvious doctrine may thus be viewed as a sort of corollary to the issue of whether a legal duty

exists. See Lawson v. Wal-Mart Stores, East, LP, 2019 WL 3790214, at *9 & n. 18 (N.D. Ala.

Aug. 9, 2019); Blalock v. Wal-Mart Stores East, LP, 2007 WL 1412445, at *3 (M.D. Ala. May 11,

2007). Nevertheless, the Alabama courts formally treat the doctrine as an affirmative defense upon

which the defendant has the burden of proof. See Byrne, 2023 WL 3558245, at *9; Gray v. L.B.

Foster Co., 761 F. App’x 871, 873 (11th Cir. 2019); Lawson, supra.

A hazardous condition is “open and obvious” if the plaintiff had actual, subjective

knowledge of it, see McClurg v. Birmingham Realty Company, 300 So. 3d 1115, 1119 (Ala. 2020),

or the hazardous condition would be recognized by an objective, reasonable person in the

plaintiff’s position in the exercise of ordinary care. See Owens, 352 So. 3d at 1176-1177; see also

Jones Food Co. v. Shipman, 981 So. 2d 355, 362 (Ala. 2006) (“[T]he question is whether the

danger should have been observed, not whether in fact it was consciously appreciated”) (citing

Sessions, 842 So. 2d at 653-54). It is often said that whether a condition was open and obvious is

generally a jury question. See Byrne, ___ So. 3d at ___, 2023 WL 3558245, at *9. Nevertheless,

a defendant may prevail on the issue at summary judgment by establishing that the condition was

open and obvious as a matter of law, meaning that such is the only reasonable conclusion to be

drawn from the evidence. Id.; see also McClurg, 300 So. 3d at 1119.

Plaintiff denies having seen anything on the floor before she fell, stating that she was

looking straight ahead and not down at the floor as she walked. (Pl. Depo. at 96-97). Accordingly,

the record does not establish that the piece of tile was open and obvious based on the theory that

Plaintiff had actual knowledge of it. See, e.g., Williams v. Bruno’s, Inc., 632 So. 2d 19, 22 (Ala.

9

1993) (holding that items in supermarket aisle on or near the floor were not open and obvious

where the plaintiff stated he did not see items until after he fell). The question at summary

judgment thus becomes an objective one: whether the only conclusion to be drawn from the

evidence is that the piece of tile would have been open and obvious to a reasonable person.

This inquiry generally encompasses an examination of all circumstances relevant to the

visibility and apparent hazardousness of the condition at issue. These factors might generally

include: (1) the location and position of the condition, McClurg, 300 So. 3d at 1120; (2) its size

and dimensions, see id.; Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 744–45 (Ala. 2009); (3) its

color and whether it contrasted with that of its surroundings, see McClurg, 300 So. 3d at 1120;

Sheikh v. Lakeshore Found., 64 So. 3d 1055, 1060 (Ala. Civ. App. 2010); Paige v. Wal-Mart

Stores, Inc., 638 So. 2d 4 (Ala. Civ. App. 1994); (4) lighting conditions, see Ex parte Kraatz, 775

So. 2d at 804; Woodward v. Health Care Auth. of City of Huntsville, 727 So. 2d 814, 817–18 (Ala.

Civ. App. 1998); (5) whether the condition was obscured from view by other objects, see Owens,

352 So. 3d at 1175 & n. 4; Dolgencorp, Inc., 28 So. 3d at 744; (6) whether a person might

reasonably expect to encounter that hazard or similar ones in the area, see Shaw v. City of

Lipscomb, 380 So. 2d 812, 814-15 (Ala. 1980); Sheikh, 64 So. 3d at 1060–61; Gray v. Mobile

Greyhound Park, Ltd., 370 So. 2d 1384, 1388–89 (Ala. 1979); and (7) whether a reasonable person

might be expected to be distracted or have their attention diverted by other items or potential

hazards in the area, see McClurg, 300 So. 3d at 1119-20; Williams v. Bruno’s, Inc., 632 So. 2d 19,

22 (Ala. 1993); Harding v. Pierce Hardy Real Estate, 628 So. 2d 461, 462-63 (Ala. 1993).

A review of the surveillance video supports Plaintiff’s claim that her foot slid out from

under her after she had taken a few steps beyond the vestibule onto the light-colored flooring of

the store. (Stanley Cam Video and Vestibule Video at 6:13:48 to 6:13:53 PM). Plaintiff alleges

10

that what caused her foot to slide, and her ensuing fall, was her stepping on the broken piece of

tile on the floor. The record contains several photos of the allegedly offending object, which, along

with Plaintiff’s testimony, show that it was relatively small and compact, only about two inches

by three inches, with an irregular, trapezoidal shape. (See Docs. 32-2, 32-3; Pl. Depo. at 111-12).

Those photos further show that the tile was a dark brown on one side, like the vestibule flooring,

but a somewhat lighter color on its reverse, potentially due to the presence of grout or adhesive.

(Compare Doc. 32-3 and Docs. 32-2 at 11-12 (all showing the darker brown side) with Docs. 32-

2 at 13-15 (showing the other, lighter side); see also Culpepper Depo. at 51-54; Doc. 32-7,

Deposition of Wal-Mart’s 30(b)(6) Corporate Representative, Tracy Smelcer (“Smelcer Depo.”)

at 42-43).

The parties clash, however, on which side of the piece of tile was facing up when Plaintiff

allegedly stepped on it. (See Dft. Brief at 23-24; Pl. Brief at 20-21; Doc. 33 (“Dft. Reply”) at 9-

12). Wal-Mart argues that the darker brown side was facing up, which is how Plaintiff

acknowledges it to have been laying when she first saw it by her foot on the floor after she fell.

(See Pl. Depo. at 107-108). Plaintiff, on the other hand, claims that the surveillance video would

allow a jury to find that the piece of tile was “flipped over” on its lighter side when she stepped on

it. (See Pl. Brief at 20-21). As the parties recognize, if the darker side were facing up, that would

have presented a somewhat greater color contrast to the background of the lighter beige tile

flooring of the main store. However, this dispute need not be resolved at this time. Even assuming

arguendo that the broken piece of tile was dark side up, as Wal-Mart argues, that would not

establish that the hazard was open and obvious as a matter of law given the other surrounding

circumstances, as further explained below. See, e.g., Denmark v. Mercantile Stores Co., 844 So.

2d 1189, 1192-95 (Ala. 2002) (roll of plastic garment bags that was “either white or turquoise” left

11

in aisle of clothing store was not “open and obvious” as a matter of law). For starters, both parties

agree that the broken piece of tile is, at the very least, not easily seen on the floor before Plaintiff’s

fall in either of the two relevant surveillance videos. (See Vestibule Video and Stanley Cam Video

at 6:13:45 to 6:13:55 PM). That is, Plaintiff interprets the videos as showing that, in the period

before Plaintiff fell, the piece of tile is “barely visible” on the floor. (Pl. Brief at 20-21). Indeed,

Wal-Mart goes so far as to insist that the piece of tile is not visible at all on the video during that

time. (Dft. Brief at 7-8). That argument, of course, tends to substantially undercut Wal-Mart’s

simultaneous claim that the very same piece of tile was so open and obvious a hazard that any

reasonable person would have seen and avoided it in the exercise of ordinary care. (See Smelcer

Depo. at 73-74 (when asked to explain the basis of Wal-Mart’s claim that the piece of tile was

open and obvious, Wal-Mart’s corporate representative offered that customers have a

responsibility to be aware of their surroundings but acknowledged that she did not see any object

on the floor at the time of Plaintiff’s fall on the surveillance video).

Nevertheless, Wal-Mart presses on undaunted, arguing that the post-accident video and

photographs support that the piece of tile was “easily distinguishable … as its dark color contrasts

with the surrounding light-colored tile floor.” (Pl. Brief at 7-8 (citing Store Entrance Video at

6:27:49 to 6:28:34 PM; Doc. 32-4)). Wal-Mart thus contends that the record establishes the “plain

visibility of the tile piece” and that “Plaintiff has failed to present any evidence that [it] was not

perceivable to her by the use of ordinary care.” (Pl. Brief at 24). However, even if it might be

assumed the tile piece on the floor might have been “visible” or “perceivable” to Plaintiff had she

been looking for it, “a dangerous condition in a walkway is not open and obvious merely because

a plaintiff could have seen it if she were looking at the walkway.” Hunter v. Durr Sys., Inc., 2007

WL 1215075, at *5 (M.D. Ala. Apr. 24, 2007); see also Denmark, 844 So. 3d at 1195 (testimony

12

that the plaintiff “could have seen the roll of bags under certain circumstances” did not show that

the hazard was open and obvious as a matter of law (emphasis original)); Harris v. Flagstar

Enterprises, Inc., 685 So. 2d 760, 761-63 (Ala. Civ. App. 1996) (jury question presented on

whether sand and cigarette butts in defendant’s parking lot constituted an open and obvious hazard,

despite the plaintiff’s admission “that she did not look down before stepping onto the ground and

that she probably would have noticed the sand and cigarette butts had she looked”); Lawson, 2019

WL 3790214, at *11 (“[A] broad statement that a hazard is ‘open and obvious’ just because

individuals should have been able to see it and because it was ‘readily visible’ is inappropriate and

fails to account for the fact-intensive analysis of whether ‘an objectively reasonable person in [the

plaintiff's] circumstances would have noticed and appreciated the dangerousness of [the hazard].’”

(citing Johnson v. Logan's Roadhouse, Inc., 2016 WL 4585927, at *4 (N.D. Ala. Sept. 2, 2016)).

While the scope of a storekeeper’s duty is informed by a presumption that invitees must

exercise reasonable care to avoid open and obvious hazards, Alabama courts have stated that a

“person walking through a store is justified in assuming that the floor is level and smooth,” Shaw

v. City of Lipscomb, 380 So. 2d 812, 815 (Ala. 1980) (quoting Brynes v. National Cas. Co., 45 So.

2d 408, 410 (La. App. 1950)), and that the storekeeper has exercised reasonable care to keep the

floor free of debris and foreign substances. See Winn-Dixie Montgomery, Inc. v. Rowell, 288 So.

2d 785, 791 (Ala. Civ. App. 1973) (affirming trial court’s refusal to give defendant’s proposed

jury instruction that the plaintiff “did not have the right to assume that the floor of defendant’s

store was clear of any foreign substance on the surface of same”). Indeed, the Alabama Supreme

Court stated long ago that “[o]ne acting upon an invitation, express or implied, has the right to

presume … that the premises … are kept at least reasonably safe and he is not required to be careful

to keep on the lookout for pitfalls.” Alabama Great S. R. Co. v. Godfrey, 47 So. 185, 190 (Ala.

13

1908); see also Foodtown Stores, Inc. v. Patterson, 213 So. 2d 211, 215 (Ala. 1968) (“To hold as

a matter of law that a customer has to spend some of his time looking for beans and other vegetable

matter on the floor surrounding the counter and area, where and while the customer was shopping,

would place a higher duty upon the customer than the law requires.”); Louis Pizitz Dry Goods Co.

v. Harris, 118 So. 2d 727, 731 (Ala. 1959) (pedestrian in front of store had no duty to look out for

cleaning solution on sidewalk without notice that there was some occasion to do so); Atkinson v.

Dean, 73 So. 479, 482 (Ala. 1916) (“There is no duty on a passenger to look out for suit cases in

the aisle of a [railroad] car; he has a right to presume that the aisle is clear of such obstructions.”);

Restatement (Second) of Torts (“Restatement”) § 343 cmt. d (1965) (“An invitee is entitled to

expect that the possessor will take reasonable care to ascertain the actual condition of the premises

and, having discovered it, either to make it reasonably safe by repair or to give warning of the

actual condition and the risk involved therein. Therefore, an invitee is not required to be on the

alert to discover defects which, if he were a mere licensee, entitled to expect nothing but notice of

known defects, he might be negligent in not discovering.”); , Restatement § 343 cmt. e (“[O]ne

entering a store, theatre, office building, or hotel, is entitled to expect that his host will make far

greater preparations to secure the safety of his patrons than a householder will make for his social

or even his business visitors.”). Thus, courts do not generally presume that an invitee must be

constantly looking down in a continuous scan of the floor for defects and hazards. See Foodtown

Stores, Inc., supra; Lawson, 2019 WL 3790214, at *12 (noting a distinction in Alabama caselaw

whereby summary judgment is often granted to the defendant based on the open and obvious nature

of the hazard where the plaintiff is “not looking where they are going” but not where the plaintiff

was just “not looking down”); 62A Am. Jur. 2d Premises Liability § 687 (“The law does not

demand that an invitee look continuously at the floor for any possible defects or to make a specific

14

observation of the floor before taking each step, since the invitee is entitled to assume that the

owner or occupier of the premises has exercised reasonable care to make the premises safe for the

invitee and continues to exercise such care while the invitee remains on the premises.” (footnotes

omitted)); accord Smith v. Walmart Stores East, LP, 2022 WL 320839, at *4 (11th Cir. Feb. 3,

2022) (“The Supreme Court of Georgia has rejected any requirement that an invitee look

continuously at the floor for defects, holding that the invitee is entitled to assume that the

owner/occupier has exercised reasonable care to make the premises safe.” (quoting Davis v.

Bruno’s Supermarkets, Inc., 587 S.E.2d 279, 282 (Ga. Ct. App. 2003)) (applying Georgia law)).

Here, the small and compact size of the broken piece of tile, along with its undisputed lack

of clear visibility on the surveillance videos before the fall, suggest that it was not an open and

obvious hazard as a matter of law. See McClure v. Target Corp., 2014 WL 7204950, at *6 (E.D.

Mich. Dec. 17, 2014) (finding a genuine dispute as to whether an alleged grease trail on the Target

floor was open and obvious where video surveillance showed no visible grease trail or other

substance noticeable “upon casual inspection”); Wal-Mart Stores Texas, LLC v. Autrey, 2021 WL

1216890, at *4-5 (Tex. App. Apr. 1, 2021) (when spill was not visible on color video of slip and

fall incident, it was not open and obvious as a matter of law). Irrespective of which side of the

piece of tile might have been facing up, both the tile and the underlying beige flooring would have

all been neutral tones, rather than the hazard being a high visibility contrasting color like yellow

or orange. Cf. Paige, 638 So. 2d at 6 (orange extension cord an off-white store floor held to be

“open and obvious” as a matter of law). Added to that, the evidence supports that the area where

Plaintiff slipped, just inside the main store entry, is not a place where one would typically expect

to encounter such a small, hard, slippery object on the floor. (See Smelcer Depo. at 57-58 (current

manager of the store recognizing that the vestibule and entry are not considered “high” slip, trip,

15

and fall areas); Denmark, 844 So. 2d at 1195 (roll of plastic bags left in store aisle not open and

obvious as a matter of law where “there was no evidence indicating that [the plaintiff] knew the

roll existed or that she expected it to be in the area in which she was shopping.”). Finally, the Wal-

Mart employees acknowledge that the front entrance is a “high traffic area” (Culpepper Depo. at

69; Smelcer Depo. at 54). The video likewise shows customers and employees regularly coming

and going through the area, often while maneuvering shopping carts. Thus, a customer’s attention

might be reasonably diverted away from small objects at floor level. See McClurg, 300 So. 3d at

1119-20; Williams, 632 So. 2d at 22; Harding, 628 So. 2d at 462-63; Thompson v. RK Holdings,

LLP, 2023 WL 7711259, at *7 n. 4 (N.D. Ala. Nov. 15, 2023). Indeed, the videos show that just

as Plaintiff crossed from the vestibule onto the lighter store flooring, another customer can be seen

pushing a shopping cart within Plaintiff’s line of sight, potentially heading towards her but then

veering off further to Plaintiff’s right to an adjacent exit. (See Vestibule Video and Stanley Cam

Video at 6:13:45 to 6:13:55 PM).

The undersigned concludes that the totality of the surrounding circumstances precludes

that the broken piece of tile might be an open and obvious hazard as a matter of law. See Denmark,

supra (roll of plastic garment bags eight inches in diameter and about two and a half to three feet

in length, left in the aisle of clothing store was not “open and obvious” as a matter of law); Harding,

628 So. 2d at 462-63 (box of paint cans protruding six inches into lumber store aisle not open and

obvious as a matter of law where plaintiff acknowledged seeing many other boxes in center of

aisle but denied seeing box of paint cans protruding at side of aisle); Pittman v. Hangout in Gulf

Shores, LLC, 293 So. 3d 937, 943-44 (Ala. Civ. App. 2019) (single step down in restaurant held

not open and obvious as a matter of law even though painted yellow where the plaintiff reasonably

might not have noticed the step because of lighting conditions and other distractions); Ryles v.

16

Wal-Mart Stores East L.P., 2004 WL 3711972, at *1, 5 (M.D. Ala. Dec. 16, 2004) (holding that a

“brown box[ ]” that was “slightly larger than a shoe box” and was “resting on the white floor” of

Wal-Mart store was not “open and obvious” as a matter of law); see also F. W. Woolworth Co. v.

Bradbury, 140 So. 2d 824, 825-828 (Ala. 1962) (plaintiff fell in store vestibule where she had seen

peanuts, popcorn, and candy wrappers on the floor and claimed to have slid on something, which

she thought was peanuts; rejecting defendant’s argument that it was entitled to judgment as a

matter of law on the ground “that plaintiff put herself in the way of an open and obvious danger”).

Wal-Mart cites a host of cases that it contends are analogous and establish that the piece of

tile was open and obvious as a matter of law. (Dft. Brief at 19-24). A closer examination of these

cases, however, reveal that they involved very different hazards and circumstances from our case.

For example, in one of Wal-Mart's cited cases, the plaintiff had subjective knowledge of the

hazard. See Ex parte Neese, 819 So. 2d 584, 590-91 (Ala. 2001) (upside-down doormat left out in

the rain where plaintiff had repeatedly visited defendant’s home, knew of the doormat, had safely

stepped over it three times that day, and may have stepped on it while entering home). In two

others, the obstacles were simply substantially larger and more conspicuous. See Dolgencorp, Inc.

v. Taylor, 28 So. 3d 737, 744-45 (Ala. 2009) (cases of merchandise—each “at least 12–13 inches

high and 15–16 inches wide”—in store aisles and were not obscured from view); Browder v. Food

Giant, Inc., 854 So. 2d 594, 596-598 (Ala. Civ. App. 2002) (“hole” or “depression” in grocery

store parking lot; plaintiff and her husband both testified that the plaintiff “was not watching where

she was going” and red dirt of depression where plaintiff fell “contrast[ed] sharply” with black

asphalt of the lot). In two other cases, the hazards more sharply contrasted with their surroundings

and were, in addition, either the sort of hazard that a reasonable person would have expected to

find in the area, see Sheikh v. Lakeshore Found., 64 So. 3d 1055, 1060-62 (Ala. Civ. App. 2010)

17

(cables stretched across floor of exercise facility contrasted with the background floor and a

reasonable person utilizing the facility would be on notice to be on the lookout for potential small

hazards below eye level, including dumbbells, towels, weights, gym bags, mats, benches, electric-

fan cords, water bottles, etc.), or extended to near eye level, see Paige, 638 So. 2d at 6 (orange

extension cord laying on white store flooring, plugged into an outlet at eye level on vertical support

pole at Wal-Mart store). In Wal-Mart's final cited case, Melton v. Kroger, 2019 WL 3208367, at

*8 (M.D. Ala. July 16, 2019), the district court held that the plaintiff had failed to present evidence

that she had, in fact, fallen over electrical outlet cover in store aisle floor or that any portion of the

cover was “sticking up” or otherwise presented an unreasonable hazard. It was only after doing

so that the court additionally held, without ever explaining how the condition was, in fact,

hazardous and without citing any purportedly analogous case, that the outlet was open and obvious

because it had a “shiny, gold metal cover” six inches in diameter and was unobstructed from view

in the middle of aisle on gray cement floor. Id. ; None of these cases present circumstances like

those of the present case. Wal-Mart is not entitled to summary judgment based on its open-and-

obvious defense.

2. The Notice Requirement and Its Exceptions

Wal-Mart also argues that the evidence does not support that it acted negligently, i.e.,

breached the duty care it owed to its invitee customers. Because a landowner’s liability rests upon

its superior knowledge of hazards on the premises, to establish a breach of duty owed, a plaintiff

generally must show that the landowner either: (1) had actual notice of the hazard that allegedly

caused the injury or (2) had constructive notice of it, i.e., the landowner should have discovered it

in the exercise of reasonable care. See Edwards v. Intergraph Services Co., 4 So. 3d 495, 502

(Ala. 2008); Denmark, 844 So. 2d at 1192; Goggans, supra; Rew v. Target Corp., 2019 WL

18

13223713, at *6 (N.D. Ala. Dec. 2, 2019). However, there are exceptions to this rule. See

Edwards, 4 So. 3d at 503. One is that an invitee need not make a prima facie showing that the

landowner had actual or constructive notice when the owner or its employees negligently created

the condition. Id.; Rew, 2019 WL 13223713, at *7. Another is when the landowner has failed to

reasonably inspect or maintain the premises as to discover and remedy the defective condition. Id.

Finally, a plaintiff need not produce evidence of notice “in cases where the alleged defect is part

of the premises.” Byrne, 2023 WL 3558245, at *6 (quoting Mims v. Jack’s Restaurant, 565 So.

2d 609, 610 (Ala. 1990)); Goggans, 2021 WL 5298900, at *2; see also Edwards, 4 So. 3d at 502

(suggesting this exception is a species of the “failure-to-inspect-or-maintain” cases)); Johnson v.

Sears Roebuck & Co., 2018 WL 2463119, at *2 (N.D. Ala. June 1, 2018) (listing the “part of the

premises,” “created the hazardous condition,” and “failure to inspect and maintain” cases as

representing three exceptions to the general rule requiring prima facie proof of the defendant’s

actual or constructive knowledge, citing Burlington Coat Factory of Ala., LLC v. Butler, 156 So.

3d 963, 969 (Ala. Civ. App. 2014)).

On this front, Wal-Mart claims that it is entitled to summary judgment on the basis that

there is, Wal-Mart says, no evidence that it had actual or constructive notice of the piece of tile on

the floor sufficiently in advance of Plaintiff’s fall to reasonably support an inference of negligence.

(Dft. Brief at 4-14). Plaintiff not only denies this (see Pl. Brief at 11, 14-16) but he also argues

that the condition was a part of Wal-Mart’s premises (id. at 12), that its employees created the

hazard (id. at 12-14), and that Wal-Mart was delinquent in failing to discover the piece of tile. (Id.

at 16-18). In reply, Wal-Mart asserts that the broken piece of tile was not “a part of its premises”

in this setting. (Dft. Reply at 2). Wal-Mart also denies that the evidence supports that its employees

created the condition (id. at 2-5), that the piece of tile was on the floor long enough to impute

19

constructive notice (id. at 5-6), or that Wal-Mart was otherwise delinquent in failing to discover

the hazard. (Id. at 6-8).

It is in the above arguments regarding the notice requirement and its exceptions that the

parties’ conflicting interpretations of the surveillance video footage come fully to the forefront.

That is, Plaintiff maintains that a jury could make certain findings favorable to her case based on

the video recordings, particularly when they are considered in conjunction with the other evidence,

including the photographs, store incident report, and deposition testimony. Wal-Mart conversely

argues that Plaintiff claims to see things on the videos that simply either are not there or are at least

not clear enough to discerned as what Plaintiff suggests. Wal-Mart further insists that the other

evidence in the record cannot fill the inferential gaps. Wal-Mart thus maintains that Plaintiff’s

arguments are founded upon impermissible speculation and conjecture that cannot stave off

summary judgment. See, e.g., Zhanadova v. Wal-Mart Stores East, LP, 2023 WL 6534188, at *4

(11th Cir. Oct. 6, 2023) (holding that plaintiff’s contention that individuals in store surveillance

video were Wal-Mart employees was not a reasonable inference because it was “based solely on

speculation and conjecture” and therefore could not create a genuine dispute at summary

judgment). The undersigned considers that the best way to analyze these factual disputes, of which

there are many, is to: (1) set out Plaintiff’s narrative theories on what the store videos and other

evidence support, (2) identify whether and how Wal-Mart dispute those theories, and (3) resolve

the disputes as necessary by setting out what inferences the undersigned concludes a jury might

reasonably draw from the evidence.

To that end, Plaintiff’s timeline of alleged events begins some 48 minutes before she fell.

(See Pl. Brief at 4-7). She says that at or about 5:25:58 p.m., as shown by the time stamp display

on the videos, a “vestibule floor tile” sitting “just on the edge of the vestibule, where it transitions

20

into the store’s main/lighter-color floor,” “was in disrepair” and “first gets kicked up.” (Id. at 4, ¶

5(a) & n. 2 (citing Vestibule Video and Stanley Cam Video; Culpepper Depo. at 27-28)). Plaintiff

asserts that, about five minutes later, at or about 5:31:10 p.m., “pieces of the busted floor tile get

kicked up by Wal-Mart employee James Terrell.” (Pl. Brief at 4, ¶ 5(b) & n. 3 (citing Vestibule

Video and Stanley Cam Video; Culpepper Depo. at 29-30). Plaintiff also describes this event as

Terrell “walk[ing] over the busted tile” and “kicking up and dislodging the broken pieces.” (Id. at

13-14 & n. 28). According to Plaintiff, a little less than a half-hour later, at or about 5:57:03 p.m.,

a “piece of the busted floor tile gets dragged into the main store floor” by two Wal-Mart employees

pushing shopping carts through the vestibule, over the transition strip, and into the main store area.

(Id. at 4, ¶ 5(c) & n. 4 (citing Vestibule Video and Stanley Cam Video; Culpepper Depo. at 29-30;

see also id. at 14 & n. 29)).

Meanwhile, about five minutes after that, at 6:02:42 p.m., a customer approaches Michael

in the vestibule and advises that he wants to use a “Coinstar” change machine located behind where

she was standing. (Vestibule Video and Deli Side Video at 6:02:42 to 6:02:53 p.m.; Michael Depo.

at 122). Michael obliges. She steps away from the machine, taking her box of masks with her,

and walks to the other, “main store” side of the A-frame sign, taking up a position standing at the

transition strip, at about 6:02:55 p.m. (See Vestibule Video). Michael remains there as the

customer continues to use the coin machine until finishing and walking away at about 6:11:30 p.m.

(Vestibule Video and Deli Side Video at 6:02:55 to 6:11:37 p.m.). Seeing that the customer has

left, right at 6:12 p.m., Michael walks back to the near, “vestibule side” of the A-frame sign and

retakes her original position in front of the coin machine. (Vestibule Video at 6:12:00 to 6:12:08

p.m.). Plaintiff asserts that, during the period of more than nine minutes in which Michael was

21

standing at the transition strip, on the far side of the A-frame sign, she was “within roughly five

feet of the broken tile with nothing to obstruct her vision.” (Pl. Brief at 5, ¶ 5(d) & n. 5).

We now come to Plaintiff’s slip and fall itself. She can be seen first entering the store and

walking into the vestibule at 6:13:43 p.m., whereupon she walks past Michael and crosses over the

transition strip. (Vestibule Video and Deli Side Video). At 6:13:51 p.m., with her third step onto

the light-colored tiles of the main store, Plaintiff’s left foot slides out from under her. (Vestibule

Video and Stanley Cam Video). Plaintiff asserts that her foot slid because she stepped on a broken

piece of tile. (Pl. Brief at 5, ¶ 5(f), & n. 7). In particular, she claims that she stepped on a piece

of tile represented on the videos by a dark spot that first appeared at about the 5:57 p.m. mark,

when the two Wal-Mart employees pushing shopping carts allegedly dragged it onto the main store

area floor. Plaintiff further asserts that this same piece of tile is visible again right after she falls,

as a dark spot on the floor near her foot, on the Stanley Cam Video at 6:13:54 p.m. (Id. at 5-6, ¶

5(g), & n. 8).

Plaintiff also claims that several events allegedly occurring after her fall are depicted on

the video footage and support her case. First, she asserts that the recordings show Wal-Mart

employee Terrell, after having come to the scene, walking up to the broken vestibule tile at the

transition strip at 6:15:15 p.m., and “kick[ing] additional broken pieces of tile out of the entryway.”

(Pl. Brief at 6, ¶ 5(h), & n. 8 (citing Vestibule Video and Stanley Cam video; Terrell Depo. at 18-

19)). A little more than ten minutes later, both sides acknowledge the video as showing another

Wal-Mart employee, Ronald Culpepper, picking up the subject broken piece of tile from the floor

and shortly thereafter putting it back down and photographing it for his store incident report. (See

id., at 6, ¶¶ 5(i), (j), & nn. 9 & 10 (citing Stanley Cam Video at 6:26:11 p.m. and 6:27:49 p.m.);

Dft. Brief at 7 (citing Stanley Cam Video at 6:27:49 to 6:28:34 p.m.; Culpepper Depo. at 25-26,

22

51-52; see also Doc. 25-4; Doc. 32-2). Plaintiff states that she also took a photo of the subject tile

sometime after she had been helped off the floor and into a chair, which had occurred at about

6:17:30 p.m. (Pl. Brief at 6, ¶ 5(j) & n. 11 (citing Pl. Depo. at 101-102); see also Stanley Cam

Video and Vestibule Video). Plaintiff has included that photograph in the record as Doc. 32-3.

Finally, Plaintiff contends that, at or about 6:50:31 p.m., a relative of hers, whom she had

summoned to the store after she fell, can be seen standing on the white tile of the store taking a

photo of the broken brown tile at the transition strip. (Pl. Brief at 7, ¶ 5(l) & n. 13 (citing Vestibule

Video and Stanley Cam Video; Pl. Depo. at 107). Plaintiff’s evidentiary submission includes what

she contends is that photo. (See Doc. 32-4).

Defendant sharply disputes Plaintiff’s claims regarding what inferences might be supported

by the evidence, particularly by the video footage. Broadly speaking, Wal-Mart’s view is that the

“surveillance footage shows the subject dislodged tile piece” upon which Plaintiff claims to have

slipped “was not visible on the floor anytime prior to the subject incident.” (Dft. Brief at 7). Wal-

Mart thus asserts that Plaintiff has failed to present substantial evidence “as to how long the

dislodged tile piece had been located on the floor” or that it “had been located on the floor for a

sufficient amount of time to impute knowledge of its presence to Wal-Mart.” (Id. at 12-13; see

also Dft. Reply at 5). Wal-Mart further disputes Plaintiff’s theories that the record would allow a

finding that Wal-Mart is presumed to have had notice of the broken piece of tile on the floor on

the basis: (1) that that Wal-Mart employees created the condition (see Dft. Reply at 2-5) or (2) that

Wal-Mart was delinquent in discovering the broken tile because Plaintiff not, Wal-Mart says,

presented substantial evidence that Wal-Mart failed to perform reasonable inspections or

maintenance in vestibule area. (Id. at 7-8). Wal-Mart specifically denies, for example, that its

employee James Terrell “kicked up” a broken vestibule tile at the transition strip at about the 5:31

23

p.m. mark of the video and thereby created the hazard that Plaintiff claims caused her to slip. (Id.

at 4). “In fact,” Wal-Mart posits, “Plaintiff has presented no substantial evidence that the subject

tile piece became dislodged any time prior to the Plaintiff walking through the vestibule and

potentially dislodging the tile herself.” (Id. at 4-5).

Wal-Mart does not appear to challenge, however, that a jury could find that the object that

Plaintiff claims she slipped on was a piece of tile that had broken off from a cracked vestibule tile

located next to and in the middle of the transition strip. But even if Wal-Mart does not formally

concede that point, the undersigned concludes that the record contains an ample basis from which

a jury could so find. There are multiple photos of the subject tile piece and a photo of the broken

vestibule tile at the transition strip, all taken shortly after the accident. Those photos show that the

subject piece of tile appears to be broken, irregularly shaped, and the same brown color and

apparent general texture as tiles of the nearby vestibule flooring. Indeed, both Michael and

Culpepper acknowledged that the broken piece of tile was brown like the vestibule tiles. (See Pl.

Depo. at 107, 112-14, 115-17, 137-38; Michael Depo. at 34-35, 123-24, 132; Culpepper Depo. at

52-53; see also Smelcer Depo. at 41 (demurring when asked if Wal-Mart had any basis to dispute

Plaintiff’s claim that the broken piece of tile came from the cracked tile in the vestibule). Michael

also acknowledges having noticed prior to Plaintiff’s fall that the vestibule tile at the transition

strip had a single “line crack” diagonally across it (Michael Depo. at 39-41, 124-26, 128). That

same tile was observed after the incident, by not only Plaintiff but also by Wal-Mart employees

Michael, Terrell, and Culpepper, to have been severely cracked, with broken and missing material,

just a few feet from where Plaintiff fell and says she found the subject broken tile piece.

The undersigned also rejects Wal-Mart’s assertion that a jury could not reasonably

determine either: (1) that Wal-Mart employees created the hazard or (2) how and when the broken

24

piece of tile came to be on the floor where Plaintiff fell. It is true that the surveillance video is too

grainy to see exactly what Plaintiff slipped on. However, “individual pieces of evidence,

insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary

presentation may well be greater than its constituent parts.” Bourjaily v. United States, 483 U.S.

171, 179-80 (1987). Thus, the question is whether the record as a whole might give rise to

reasonable inferences that Plaintiff stepped on a piece of tile, where it might have come from, and

how long it might have been on the floor. As further explained below, the undersigned ultimately

concludes that a jury could reasonably make findings consistent with the material elements of

Plaintiff’s proposed narrative: namely, that a piece of the cracked vestibule tile by the transition

strip broke free and was dragged by a Wal-Mart employee pushing a shopping cart through the

vestibule at about 5:57 p.m. to the location on the white flooring of the main store area where

Plaintiff slipped on it at just before 6:14 p.m. Likewise, a jury could find in this scenario that Wal-

Mart employee Susan Michael was standing for over nine minutes just a few feet from the piece

of tile on the floor with an unobstructed view of it, but she failed to discover or remedy the hazard.

First, the parties agree that the Vestibule Video shows an individual, assumed be a

customer, walking from the main store area, over the middle of the transition strip, and into the

vestibule at about 5:25 p.m., at which point a clearly discernible dark spot appears on the floor just

on the “vestibule side” on the transition strip. Wal-Mart supervisor Ronald Culpepper

acknowledges seeing this on the footage, although he denies being able to tell what the spot is,

suggesting it might perhaps be a “shoe print.” (See Culpepper Depo. at 27-29). The parties also

do not dispute that this same dark spot quickly disappears from the video at about 6:31 p.m., when

Wal-Mart employee James Terrell walks over the transition strip from the main store area to

address Michael. Plaintiff characterizes this footage from the Vestibule Video as establishing that

25

the piece of tile that she later slips on first gets “kicked up” by the customer and then gets further

“kicked up” by Terrell (Pl. Brief at 5, ¶¶ 5(a), (b)), thereby creating the hazardous condition that

Wal-Mart failed to remedy before Plaintiff fell.8 However, all the evidence plainly shows that

Plaintiff did not slip or trip at the transition strip; instead, she fell several steps past it, on the main

store flooring. Further, Culpepper does not admit to seeing anything like a piece of tile being

“kicked up” at any point on the video. The undersigned can also see the dark spot become visible

and then disappear on the recording as described above. But again, the video images are simply

too grainy to determine what the spot is or just what the floor might have truly looked like at that

time. Further, the only witness testimony on that matter comes from Michael who repeatedly

denies having seen any debris or other hazardous condition on the floor at any time Plaintiff fell.9

(Michael Depo. at 34-35, 38-39, 59, 117-18, 127-28, 135-36).

That said, the undersigned agrees with Plaintiff that the Vestibule Video and the Stanley

Cam Video can be reasonably viewed as showing Plaintiff’s foot slipping when she stepped on

something, represented by a visible spot that is slightly darker than the light-colored flooring of

the main store. As Plaintiff concedes, that spot is only “barely visible.” (Pl. Brief at 21). However,

the undersigned can see it on the video, and Michael and Culpepper acknowledged being able to

8 Wal-Mart argues that Terrell was not acting as its employee, citing Culpepper’s testimony

that he did not “believe [Terrell] was clocked in at [this] time” and might have been in the store

shopping as a customer. (See Dft. Reply at 4 & n. 1 (citing Culpepper Depo. at 30)). Wal-Mart

thus contends that Terrell’s actions cannot be imputed to Wal-Mart for purposes of establishing

that Wal-Mart created the hazardous condition. (See id.). Terrell testified, however, he was on

the clock at this time. (Terrell Depo. at 15-16).

9 While Michael acknowledges that she had seen a “line crack” in the vestibule tile at the

transition strip sometime prior to Plaintiff’s fall, at no time before that incident, she says, did she

see any part of the tile raised up, missing material, or otherwise presenting a slip or trip hazard.

(Michael Depo. at 39-41, 124-26, 128).

26

see it as well. (Michael Depo. at 51-52, 83-84; Culpepper Depo. at 35-36). Thus, the undersigned

concludes a jury could do likewise.

The undersigned further agrees with Plaintiff that the video recordings would allow a

finding that this spot first becomes visible when two Wal-Mart employees come through the

vestibule with shopping carts and appear to drag it to the exact location on the floor where Plaintiff

later steps on it and falls. That is, the spot first appears at about 5:57 p.m., right as two individuals

pushed shopping cars through the vestibule, passing over the middle of the transition strip, and

into the main store area. Both were wearing dark vests with a Wal-Mart logo on the back,

reasonably suggesting they were store employees. (See also Michael Depo. at 48-50); see

McCombs v. Bruno’s, Inc., 667 So. 2d 710, 713 (Ala. 1995) (fact that individuals were wearing

“store smocks” indicated they were employees of defendant); Hodson v. MSC Cruises, S.A., 2021

WL 3639752, at *12 (S.D. Fla. Aug. 2, 2021) (plaintiff’s testimony that an otherwise unidentified

individual was wearing a uniform and name tag associated with the defendant cruise line was

sufficient to support that the individual was defendant’s employee), report and recommendation

adopted, 2021 WL 3634809 (S.D. Fla. Aug. 16, 2021). Further, the undersigned agrees with

Plaintiff that a jury could find that the spot remained in that location until she stepped on it and

fell, whereupon it appears to move immediately to another spot on the floor right by Plaintiff’s

foot.

Again, the video images alone are not clear enough to permit one reasonably to ascertain

just what this discolored spot on the video is. However, when the video is considered along with

the testimony of Plaintiff and other witnesses, the photographic evidence, and the incident report,

the record supports a reasonable inference that the spot on the video is, in fact, a broken piece of

vestibule tile that was dragged into the main store area by one of the two vest-wearing Wal-Mart

27

employees pushing the shopping carts. See Gonzalez v. Wal-Mart Stores, Inc., 2023 WL 4841921,

at *2 (11th Cir. July 28, 2023) (holding that jury could find that a “white-ish spot or smudge” on

appearing on store video footage was liquid substance that plaintiff claimed to have slipped on,

based on the “location and persistence” of the smudge on the video, which was in “the exact same

spot that Gonzalez later stepped on when he slipped” (emphasis original)); see also Sutton v. Wal-

Mart Stores East, LP, 64 F.4th 1166, 1172 (11th Cir. 2023) (although store video did not show

grape on floor that the plaintiff claimed to have stepped on or how it got there, the plaintiff’s

testimony that she slipped on a grape and the fact that the video did not otherwise show anyone

dropping a grape on the floor at any time more than an hour before the plaintiff’s fall was sufficient

from which to infer that the grape had been on the floor long enough to demonstrate Wal-Mart’s

constructive knowledge of its presence); Stutler v. Coca-Cola Beverages Fla., LLC, 2023 WL

4703301, at *2–3 (11th Cir. July 24, 2023) (although surveillance video did not itself show liquid

leaking from defendant’s beverage cooler in Target store checkout line, other circumstantial

evidence supported a reasonable inference that cooler had leaked, including that the video showed

the plaintiff slipping in front of the cooler on a puddle of water, photograph indicated liquid was

coming from cooler, store incident report mentioned that the floor was “wet” from a “cooler leak,”

and there was no other likely explanation for how the water ended up beneath and adjacent to the

cooler). The undersigned concludes that a Wal-Mart store employee might be found to have thus

created the hazard. Wal-Mart does not argue that a jury could not deem such employee’s conduct

to be negligence attributable to Wal-Mart. Therefore, Plaintiff need not otherwise prove that Wal-

Mart had actual or constructive notice of the hazardous condition to avoid summary judgment.

Indeed, the record also gives rise to a jury question regarding whether Wal-Mart otherwise

had constructive notice of the hazard and unreasonably failed to remedy it. As explained above,

28

the evidence supports that the broken piece of tile was on the main store area floor from about 5:57

p.m., when one of the vest-wearing Wal-Mart employees dragged it there with a shopping cart

from the transition strip, until Plaintiff slipped on it and fell at just before 6:14 p.m. That is a

period of just under 17 minutes. The Alabama Supreme Court has cautioned that a “stop-watch”

rule that considers only how long a foreign substance or hazard might have been on the floor is

inappropriate in slip and fall cases because each one must be decided on its own facts. Ex parte

Travis, 414 So. 2d 956, 961 (Ala. 1982) (citing Foodtown Stores, Inc. v. Patterson, 213 So. 2d

211, 216 (Ala. 1968)). That said, the length of time in this case seems close to the boundary of

where courts have allowed that a jury might infer a storekeeper’s constructive knowledge of, and

a negligent failure to correct, hazards on the floor.10 See Hose v. Winn–Dixie Montgomery, Inc.,

658 So.2d 403, 404 (Ala.1995) (five to ten minutes insufficient); McCombs v. Bruno’s, Inc., 667

So. 2d 710, 713 (Ala. 1995) (evidence that substance had been on the floor for “15 minutes or

more” and that the store had been notified about the spill held sufficient); Bruno’s, Inc. v. Schad,

628 So. 2d 934, 936 (Ala. Civ. App. 1993) (twenty or more minutes held sufficient).

But even assuming that timing alone might be insufficient to impute constructive notice to

Wal-Mart, there is other evidence that would support such a finding. Namely, the Alabama

Supreme Court has recognized that the presence of a store employee in the immediate area where

the plaintiff slipped and fell may, at least under certain circumstances, support a finding that the

10 Interestingly, the Eleventh Circuit has opined in an unpublished and thus non-binding

case, see 11th Cir. R. 36-2, that the quantum of evidence required to support a reasonable inference

of a landowner’s constructive knowledge of a hazard on the premises is a question of federal law,

not one of substantive state law that must be applied in diversity. Goggans, 2021 WL 5298900, at

*2-4. The undersigned concludes for the reasons explained in the text, however, that regardless of

whether state law or federal law applies, the totality of the circumstances would allow a jury to

find that Wal-Mart had notice of the hazard and negligently failed to correct it.

29

defendant had constructive knowledge of a hazardous condition. See Mills v. Bruno’s, Inc., 641

So. 2d 777, 779 (Ala. 1994) (“Whether Bruno’s had actual or constructive notice that the oil was

on the floor is a genuine issue of material fact. From the fact that there was a Bruno’s employee

stocking shelves nearby in the aisle when Mills slipped and fell, a jury could reasonably infer either

that the employee was responsible for the spill or that he knew of the spill.”); Williams v. Bruno’s

Inc., 632 So. 2d 19, 21-22 (Ala. 1993) (“If [the plaintiff’s] testimony is believed, i.e., if the facts

are that the strips were on the floor and the strips caused his fall, then [the defendant] obviously

had constructive notice, through their employee Light, who would or could have seen them during

his four previous trips up and down the aisle.”); see also Couch v. Von Maur Stores, Inc., 2021

WL 4301587, at *3–4 (N.D. Ala. Sept. 21, 2021) (discussing Mills); Wal-Mart Stores, Inc. v.

Manning, 788 So. 2d 116, 118 (Ala. 2000) (wherein the Alabama Supreme Court, applying

Georgia law, indicated that “evidence that there was [an] employee of [the premises owner] in the

immediate vicinity who could easily have noticed [the dangerous condition]” might support a

finding that the defendant had notice of the condition (internal quotation marks and citation

omitted)); Smith, 2022 WL 320839, at *3–4 (wherein the Eleventh Circuit held, applying Georgia

law, that evidence that Wal-Mart employees were in the vicinity of the plaintiff’s fall and had a

reasonable opportunity to have discovered the hazard supported in inference of constructive

knowledge); but cf. Williams v. Wal–Mart Stores, Inc., 584 F. Supp. 2d 1316, 1320 (M.D. Ala.

2008) (stating that “there is no case law to support the argument that simply having employees in

the vicinity provides evidence of negligence,” albeit without citing affirmative authority or

acknowledging Mills or Williams v, Bruno’s, Inc., supra).

The surveillance videos support that Wal-Mart employee Susan Michael was standing in

the vestibule area near the broken piece of tile for the entire time it might be found to have been

30

first deposited on the floor by another Wal-Mart employee at about 5:57 p.m. until Plaintiff slipped

on it just before 6:14 p.m. It is likewise undisputed that her job duties included keeping a lookout

for and cleaning up debris and correcting safety hazards on the floor in the area by her station.

(See Michael Depo. at 96-99, 112-13; Culpepper Depo. at 64-65; Smelcer Depo. at 16-17, 58, 71-

72, 74-75). The Vestibule Video further confirms that Michael was standing at the transition strip

from just before 6:03 p.m. until 6:12 p.m., a period of over nine minutes, during which: (1) she

would have been standing only a few feet away from the piece of tile on the floor, (2) with an

unobstructed view of it, and (3) Michael appears to have been largely unoccupied with any other

substantial tasks or duties. While the presence of the piece of broken tile might not have been

obvious, the video supports that it was, in fact, visible on floor, despite Michael’s testimony that

she did not see it. Based on the totality of the circumstances, a jury could find that Michael

reasonably should have discovered the piece of tile in the exercise of due care in the approximately

nine minutes when she would have been standing a few feet from it. That would impute

constructive notice to Wal-Mart. See Mills; Williams; Smith, supra; see also Ryles, 2004 WL

3711972, at *4 n. 5 (recognizing that the “behavior” of a customer “may be expected to be different

from that of an employee,” insofar as “it would be reasonable to expect [a customer] to be less

vigilant about store standards and more conscious of the items for which [they are] shopping”).

Wal-Mart is not entitled to summary judgment based on its theory that the evidence is insufficient

to support that Wal-Mart’s conduct was negligent.11

11 Because the evidence supports that Wal-Mart employees negligently created and/or

failed to discover and remedy the hazardous condition, it is unnecessary for the undersigned to

consider Plaintiff’s additional argument that the hazard was “a part of the premises.”

31

B. Proximate Cause

Wal-Mart also seeks summary judgment based on Plaintiff’s alleged inability to establish

the element of proximate cause. (Dft. Brief at 14-18). Specifically, Wal-Mart concedes that

Plaintiff suffered material injuries when she fell. However, Wal-Mart insists that, even if the

evidence might support that Wal-Mart negligently caused or allowed the broken piece of tile to be

on the floor, as Plaintiff claims, her testimony and the other evidence offered to show that she fell

because she did, in fact, step on that piece of tile, amounts to mere speculation. The undersigned

disagrees.

To recover in a premises-liability action based on a fall, a plaintiff must prove that her fall

was caused by a defect or instrumentality on the defendant’s premises. Logan v. Winn–Dixie

Atlanta, Inc., 594 So. 2d 83, 84 (Ala. 1992). Causation typically presents a question of fact for the

jury, but it may be decided as a matter of law by the court if reasonable people must draw the same

conclusion on the issue from the evidence. See Cowan v. J.C. Penney Co., 790 F.2d 1529, 1532

(11th Cir. 1986); Durden v. Gaither, 504 So. 2d 258, 259 (Ala. 1987). Causation may not be

established by speculation, conjecture, or guesswork. See Ervin v. Excel Properties, Inc., 831 So.

2d 38, 45 (Ala. Civ. App. 2001); Highfield v. Grede II, LLC, 2017 WL 5503714, at *4 (S.D. Ala.

Nov. 16, 2017). However, it is not necessary for a plaintiff “to prove the proximate cause of her

fall by direct evidence”; rather such may be “completely established through circumstantial

evidence.” Harris, 685 So. 2d at 762 (citing Bell v. Colony Apartments, 568 So. 2d 805, 810 (Ala.

1990)); see also Folmar v. Montgomery Fair Co., 309 So. 2d 818, 821 (Ala. 1975) (“There is

nothing wrong with a [slip-and-fall] case built around sufficient circumstantial evidence, provided

the circumstances are proved and not merely presumed.”). “A fact is established by circumstantial

evidence if it can be reasonably inferred from the facts and circumstances adduced.” Harris, 685

32

So. 2d at 762 (quoting Bell, 568 So. 2d at 810-11); see also Highfield, supra, at *7 (“A plaintiff’s

evidence is not speculative as long as it ‘points to any one theory of causation, indicating a logical

sequence of cause and effect, ... notwithstanding the existence of other plausible theories with or

without support in the evidence.’” (quoting Southern Ry. Co. v. Dickson, 100 So. 665, 669 (Ala.

1924)).

As explained in the preceding section, the record would support findings that: (1) the

cracked brown vestibule tile by the transition strip broke apart, (2) a Wal-Mart employee pushing

a shopping cart dragged a broken piece of that tile a few feet onto the main store flooring, and (3)

another Wal-Mart employee, Susan Michael, reasonably could have discovered and removed that

piece of tile before Plaintiff slipped on it but did not. Plaintiff testified staunchly that she “know[s]

for certain” that she slipped on that broken piece of tile. (Pl. Depo. at 105). Wal-Mart argues,

however, that, despite such insistence, Plaintiff’s testimony cannot prove causation because, Wal-

Mart posits, the “confident assertion of speculation does not transform it into probative evidence.”

(Dft. Brief at 16 (quoting Rosson v. Lowe’s Home Centers, LLC, 2019 WL 1429172, at *4 (N.D.

Ala. Mar. 29, 2019)). Wal-Mart further argues that Plaintiff cannot prove causation because she

admitted: (1) that she did not see anything on the floor until after she fell and (2) that she didn’t

perceive a feeling that her foot had stepped on something (Dft. Brief at 17-18 (citing Pl. Depo. at

110, 117-18)). Wal-Mart also points out that Plaintiff did not “ever walk over the area containing

the broken tile from which [she] believes the dislodged tile piece originated.” (Dft. Brief at 18).

Wal-Mart’s arguments are unconvincing. Taking its last point first, it is unclear why Wal-

Mart thinks that it might matter whether Plaintiff walked directly over or upon the area by the

transition strip from whence she believes the subject tile fragment broke free. Plaintiff does not

claim that she slipped there. To the contrary, Plaintiff’s testimony and the video evidence establish

33

unambiguously that she slipped after passing the transition strip and going a few steps onto the

main store flooring. Nor does Plaintiff suggest that she might have herself tracked the broken

piece of tile from the transition strip area to the spot where she ultimately slipped and fell on it.

Rather, she contends that the piece of tile was already in that location on the main store floor before

she entered the store. Again, the video footage, considered along with the other evidence, might

be interpreted as showing that to have been so.

Plaintiff’s concessions that she did not see anything on the floor until after she fell and that

she did not immediately perceive that she had stepped on something also do not call for entry of

summary judgment. As explained, the Stanley Cam Video and the Vestibule Video can be

interpreted as corroborating Plaintiff’s claim that her foot slipped out from under her at exact the

place where something appears on the images as a spot slightly darker than the lighter floor tiles,

and that, right after she fell, the spot appears to move next to Plaintiff’s foot. Plaintiff further

testified that, although she did not see or feel anything under her foot contemporaneously with her

fall, she says that she observed immediately thereafter, as she was still on the floor, that the broken

piece of brown tile was “caught up” under the heel of her boot. (See Pl. Depo. at 102-103, 105,

106, 110, 129). Plaintiff has thus inferred and unequivocally asserted that her fall was caused by

her having stepped and slid on that broken tile piece. The undersigned concludes that, based on

the circumstances shown by the evidence, Plaintiff’s inference is a reasonable one that might

likewise be drawn by the trier of fact. See Harris, 685 So. 2d at 762 (holding that plaintiff’s

“admission that she was not looking down when she slipped and thus could not be absolutely sure

that she had slipped on the sand and cigarette butts” in parking lot did not entitle the defendant to

summary judgment; rather, a jury question was presented by plaintiff’s testimony that

“immediately after falling she noticed the sand and cigarette butts on the ground where she had

34

fallen,” that she had “noticed a slide mark in the sand and a corresponding scratch on her shoe,”

and her statement, “I know that I felt something as I was sliding. I knew that I had not just slipped

on asphalt.”); Hooks v. Dollar Gen. Corp., 2015 WL 6964289, at *2, 4-5 (M.D. Ala. Nov. 10,

2015) (holding that the plaintiff’s testimony presented a jury question on causation where she

testified that she fell because she stepped on a loose piece of broken concrete on the handicap ramp

at the store entry, that “a piece came off the ramp after [the] fall” and was “laying beside” her);

see also Stephens v. City of Montgomery, 575 So. 2d 1095, 1096-97 (Ala. 1991) (while stating that

the plaintiff did “not know exactly what she tripped over,” she had stated that she “tripped on the

sidewalk” and testimony from witness at the scene supported that, at the place where the plaintiff

fell, the sidewalk was uneven, with one portion approximately one inch higher than another); Ten

Ball Novelty & Mfg. Co. v. Allen, 51 So. 2d 690, 693–94 (Ala. 1951) (rejecting defendant’s claim

that the jury’s verdict for the plaintiff “was based on speculation and conjecture” where the

plaintiff testified she “was looking ahead and not down at her feet” and “did not see what caused

her to fall until after she had fallen and was getting up”).

The multiple cases that Wal-Mart relies upon for the contrary proposition (see Dft. Brief

at 15-18) are distinguishable. In one, the court held that the plaintiff’s testimony on causation was

speculative where she alleged that her accident was caused by a defect on the premises that she

did not even claim to have discovered to exist until she returned to the store “a couple of weeks

after her fall.” See Rosson, supra, 2019 WL 1429172, at *1. In another, the court similarly held

that the evidence was insufficient to support the plaintiff’s theory that he she had slipped on wet

paint on a ramp leading to the defendant’s store entrance where such was based entirely on

plaintiff’s testimony that she had discovered yellow paint on the bottom of her shoe only after she

had returned home from the emergency room following her fall, and the defendant had presented

35

unrebutted evidence that there had been no recent paint work on the ramp. See Logan, supra, 594

So. 2d at 83-85. In two of Wal-Mart’s other cited cases, plaintiffs had identified certain dangerous

conditions on the premises, but they were unable to take the next step required to show causation:

assert that one of the identified conditions not only existed but also had, in fact, caused them to

fall. See Ex parte Harold L. Martin Distributing Co., 769 So. 2d 313, 314-16 (Ala. 2000); Ervin

v. Excel Properties, Inc., 831 So. 2d 38, 44-45 (Ala. Civ. App. 2001). In the final case cited by

Wal-Mart, the Alabama Court of Civil Appeals held that the plaintiff had failed to provide

testimony sufficient from which to infer that she had tripped on the alleged hazard noticed shortly

after her fall, an elevator “misleveled” with the floor by several inches, as opposed to having just

fallen for some other reason. See Shanklin v. New Pilgrim Towers, L.P., 58 So. 3d 1251, 1253-54

(Ala. Civ. App. 2010). The inference of causation in this case is simply far stronger than in any

of the above, as Plaintiff’s testimony, the photographs, and the surveillance videos support that the

defect of which Plaintiff complains, the broken piece of tile, was not only was present at the time

of her accident but also was the cause of it. Wal-Mart is therefore not entitled to summary

judgment based on its argument that Plaintiff cannot present sufficient evidence of proximate

cause.

Conclusion

Based on the foregoing, Wal-Mart’s motion for summary judgment (Doc. 23) is

GRANTED IN PART AND DENIED IN PART. Specifically, that motion is GRANTED as it

pertains to Plaintiff’s claim for wantonness, which is hereby DISMISSED. Wal-Mart’s motion is

DENIED as it relates to Plaintiff’s remaining claim for negligence.

The parties are ORDERED to confer and to file, within TWO WEEKS of the date of

entry of this Memorandum Opinion and Order, a joint status report concerning next steps in this

36

case. Such report should include whether the parties they believe magistrate-judge-led mediation

would be beneficial.

DONE this 20th day of March, 2024.

~~

vo

JOHN H. ENGLAND, II

UNITED STATES MAGISTRATE JUDGE

37