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United States District Court, W.D. Tennessee, Western Division.

Cassandra FENNEY, Plaintiff, v. WAL-MART STORES EAST, LP, Defendant.

No. 2:18-cv-02019-MSN-cgc

Decided: January 03, 2020


Plaintiff, Cassandra Fenney, brought this premises liability action against Defendant, Wal-Mart Stores East, LP (“Defendant”), alleging negligence and seeking damages for medical costs and pain and suffering. (ECF No. 26.) Before the Court is Defendant's Motion for Summary Judgment, submitted on September 16, 2019. (ECF No. 55.) Plaintiff responded to Defendant's Motion on October 15, 2019. (ECF No. 59.) Defendant filed its reply on October 29, 2019. (ECF No. 62.) For the reasons set forth below, Defendant's Motion for Summary Judgment is DENIED.


The following facts are undisputed unless noted otherwise. On November 15, 2016, Plaintiff went to Defendant's store to shop for Christmas decorations. (ECF No. 59 at PageID 264.) Plaintiff was looking at merchandise on steel shelving in the garden center and asked Wal-Mart sales associate, Eva Logan (“Ms. Logan”), for assistance. (Id.) When Ms. Logan came to assist Plaintiff, she was pulling an empty, manual pallet jack that she was using to transport loads of charcoal—Plaintiff avers she did not see Ms. Logan using a pallet jack. (Id.) Ms. Logan placed the pallet jack some distance behind Plaintiff and retrieved a ladder to assist Plaintiff with merchandise. (Id. at PageID 264–65.) When Ms. Logan was on the ladder with her back toward Plaintiff, Plaintiff walked backward away from the shelving unit without looking behind her first and fell over the legs of the pallet jack. (Id. at PageID 265.) As a result of her fall, Plaintiff suffered injuries to her right arm and shoulder. (ECF No. 26 at PageID 97.)

Before she fell, Plaintiff had been shopping in the garden center for approximately fifteen to twenty-five minutes and had walked through the specific area where she fell one or two times before and did not see a pallet jack in any area of the garden center. (ECF No. 62 at PageID 341.) After Plaintiff fell, Ms. Logan reported the incident to Defendant's store manager, Marie Hayslett (“Ms. Hayslett”), who conducted an investigation. (ECF No. 62 at PageID 342.)


Under Federal Rule of Civil Procedure 56, a court shall grant a party's motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of material facts must support its position either by “citing to particular parts of materials in the record,” including depositions, documents, affidavits or declarations, stipulations, or other materials, or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Asbury v. Teodosio, 412 F. App'x 786, 791 (6th Cir. 2011). Fed. R. Civ. P. 56(c)(1). When ruling on a motion for summary judgment, the Court must view the facts contained in the record and all reasonable inferences that can be drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Nat'l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party may discharge this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or simply “by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case.” Id. at 325, 106 S.Ct. 2548.

When confronted with a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine dispute for trial. See Fed. R. Civ. P. 56(c). “A genuine dispute exists when the plaintiff presents significant probative evidence on which a reasonable jury could return a verdict for her.” EEOC v. Ford Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (quotation marks omitted). The nonmoving party must do more than simply “ ‘show that there is some metaphysical doubt as to the material facts.’ ” Adcor Indus., Inc. v. Bevcorp, LLC, 252 F. App'x 55, 61 (6th Cir. 2007) (quoting Matsushita, 475 U.S. at 586, 106 S.Ct. 1348). A party may not oppose a properly supported summary judgment motion by mere reliance on the pleadings. See Beckett v. Ford, 384 F. App'x 435, 443 (6th Cir. 2010) (citing Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548). Instead, the nonmoving party must adduce concrete evidence on which a reasonable juror could return a verdict in her favor. Stalbosky v. Belew, 205 F.3d 890, 895 (6th Cir. 2000); see Fed. R. Civ. P. 56(c)(1).

The Court's role is limited to determining whether there is a genuine dispute about a material fact, that is, if the evidence in the case “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. To start, the Court does not have the duty to search the record for such evidence. See Fed. R. Civ. P. 56(c)(3); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). Additionally, the Court must “view the evidence presented through the prism of the substantive evidentiary burden” applicable to the case. Anderson, 477 U.S. at 254, 106 S.Ct. 2505. Thus, if the plaintiff's evidentiary standard of proof at trial is preponderance of the evidence, then on a motion for summary judgment the Court must determine whether a jury could reasonably find that the plaintiff's factual contentions are true by a preponderance of the evidence. See id. at 252–53, 106 S.Ct. 2505.

“When the non-moving party fails to make a sufficient showing of an essential element of his case on which he bears the burden of proof, the moving parties are entitled to judgment as a matter of law and summary judgment is proper.” Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013) (quoting Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th Cir. 2012) (en banc)). Courts must analyze a motion for summary judgment with due regard not only for the rights of the party “asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury,” but also for the rights of those “opposing such claims and defenses to demonstrate in the manner provided by [Rule 56], prior to trial, that the claims and defenses have no factual basis.” Celotex, 477 U.S. at 327, 106 S.Ct. 2548.


Defendant argues that summary judgment is appropriate because it owed no duty to Plaintiff. In the alternative, Defendant argues that no reasonable jury could conclude that Plaintiff is not at least equally at fault for her own injury, and she is thus disqualified from recovery on comparative fault grounds. Plaintiff disputes both grounds. The Court will first address Defendant's duty of care arguments before moving on to the issue of comparative fault.

A. Negligence and Duty of Care

Tennessee tort law govern this case. See Hataway v. McKinley, 830 S.W.2d 53, 60 (Tenn. 1992) (adopting the “most significant relationship” rule in determining the state law that applies in a diversity action). To succeed on a claim for negligence, a plaintiff must demonstrate that a defendant (1) owed her a duty of care and (2) breached that duty (3) causing (4) harm. Williams v. Linkscorp Tenn. Six, L.L.C., 212 S.W.3d 293, 296 (Tenn. Ct. App. 2006) (outlining the required elements of negligence). Whether a duty exists is a question of law. Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn. 1998). Generally speaking, the operator of a place of business has a duty to maintain the premises “in a reasonably safe condition either by removing or repairing potentially dangerous conditions or by helping customers and guests avoid injury by warning them of the existence of dangerous conditions that cannot, as a practical matter, be removed or repaired.” Piana v. Old Town of Jackson, Inc., 316 S.W.3d 622, 629–30 (Tenn. Ct. App. 2009) (quoting Psillas v. Home Depot, U.S.A., Inc., 66 S.W.3d 860, 864 (Tenn. Ct. App. 2001)). However, the property owner is not responsible for removing or warning against “conditions from which no unreasonable risk was to be anticipated.” Parker v. Holiday Hospitality Franchising, Inc., 446 S.W.3d 341, 350 (Tenn. 2014). Rather than adopting the position that so-called “open and obvious” hazards relieve a defendant of a duty, Tennessee courts weigh the gravity of the potential harm against the burden of taking action to prevent it: “[I]n short, if the foreseeability and gravity of harm posed from a defendant's conduct, even if ‘open and obvious,’ outweighed the burden on the defendant to engage in alternative conduct to avoid the harm, there is a duty to act with reasonable care.” Coln, 966 S.W.2d at 43.

First, Defendant argues that it owes no duty to Plaintiff because Plaintiff's injury was not reasonably foreseeable. Defendant avers Plaintiff, without looking behind her, “took up to ten (10) steps backwards—travelling approximately ten (10) to fourteen (14) feet—and tripped over the pallet jack,” and “[t]here were no objects between the area where Plaintiff was standing prior to beginning to walk backward and the pallet jack.” (ECF No. 55-1 at PageID 216.) Defendant further argues that it is unforeseeable that Plaintiff would take up to ten steps and travel ten to fourteen feet backwards “without first looking behind her to make sure she could do so safely.” (Id.) Plaintiff responds that she traveled a shorter distance, only taking two or three steps back before falling over the pallet jack—Plaintiff asserts she moved back “a little bit” to look at a merchandise displayed on a lower shelf in front of her. (ECF No. 59 at PageID 265.) To support her response, Plaintiff refers to hand drawings made by Plaintiff and Ms. Logan during their respective depositions depicting the area where Plaintiff fell including, the placement of the shelving unit and pallet jack. (See ECF No. 59-1.) While these drawings are crude and do not show specific information regarding scale or distance, they are sufficient to create a genuine dispute of material fact as to the placement of the pallet jack in relation to Plaintiff before she stepped backward. Defendant replies that Plaintiff stated in her deposition “it could have been 10 feet back.” (ECF No. 62 at PageID 345.)

Second, Defendant argues that it owes no duty to Plaintiff because the manual pallet jack at issue did not create dangerous condition. According to Defendant, a manual pallet jack is not inherently dangerous because it is a “large stationary object that is easily visualized with the naked eye” and is “neither electrically powered nor does it have hydraulic capability.” (ECF No. 55-1 at PageID 217.) Plaintiff responds that the pallet jack is a dangerous condition because “Defendant's own manager at the time of the incident [Ms. Hayslett] said it was inappropriate conduct and unsafe for Ms. Logan to leave a pallet jack unsecured on the sales floor.” (ECF No. 59 at PageID 270.) Plaintiff further argues she could not see the pallet jack at issue because there was another pallet filled with merchandise right next to it. (Id.)

In support of its position on duty, Defendant relies primarily on three cases: Foster v. Wal-Mart Stores East, LP, No. 3-11-0367, 2012 WL 3027843, at *1 (M.D. Tenn. July 23, 2012); Arrambide v. Wal-Mart Stores, Inc., 33 F. App'x 199, 200 (6th Cir. 2002); and Hunter v. Kroger Limited Partnership I, No. W201701789COAR3CV, 2018 WL 5793562, at *1 (Tenn. Ct. App. Nov. 5, 2018), appeal dismissed (Jan. 14, 2019). However, these cases are inapposite.

In Foster, the plaintiff was smelling Lysol products displayed on an endcap of a shopping aisle and tripped over a pallet located on the floor a few feet away as she turned her attention to walk from the left-hand side of the endcap to the other. Foster, 2012 WL 3027843, at *4. The defendant in Foster argued the plaintiff's injuries were not foreseeable and submitted video evidence showing that “at least ten other customers apparently saw and easily navigated around the pallet without tripping or falling.” Id. at *10. Moreover, the plaintiff in Foster stipulated that the pallet she tripped over was “open and obvious.” Id.Under these circumstances, the Foster court held that the store owed the plaintiff no duty of care because the plaintiff failed “to show that the store would reasonably foresee that a customer would trip over a pallet located in close proximity to her.” Id. at *11. The court further opined that “any risk to the plaintiff from the placement of the pallet in the aisleway should have been obvious to a customer exercising reasonable perception, intelligence, and judgment.” Id. at *11–12. The court emphasized that, “at the time [the plaintiff] tripped and fell, she was not looking at merchandise on high shelves but rather was moving from her initial location at the endcap to the other side of the endcap” and failed to look down as she did so. Id.

Such is not the case here. Unlike the plaintiff in Foster, Plaintiff moved backward away from a display to look at merchandise displayed on the lower shelves. Moreover, neither Plaintiff nor Defendant has submitted photographic or video proof for the Court to consider, and Plaintiff certainly has not stipulated the pallet jack was an open and obvious condition. Accordingly, this Court declines to follow Foster because the facts and circumstances which led the Foster court to grant the store summary judgment on the issue of duty simply are not present in this case.

Defendant's reliance on Arrambide is also misplaced. In Arrambide, a case similar to Foster, a customer shopping in the lawn-and-garden section of a Wal-Mart store “was attracted by some pots,” but “[t]o reach the pots, [she] had to leave her cart at the end of the aisle because the aisle was too narrow” due to the placement of a pallet in the center of the aisle. Arrambide, 33 F. App'x at 200. After looking at the pots, the customer walked back up the aisle toward her cart. Id. On the way back to her cart, the customer stepped into the pallet and fell. Id. On these facts, the court held that the store owed no duty of care to protect a customer from the pallet where the “foreseeability and gravity of harm [was] minimal because the narrowing of the aisle was open and obvious” and where the plaintiff “actually observed the narrowing of the aisle and the placement of the pallet as evidenced by her decision to leave her shopping cart at the end of the aisle and to walk around the pallet the first time.” Id. at 201. The court explained that the plaintiff was “sufficiently aware of the pallet's existence and familiar with its placement for her to reasonably avoid any harm associated with the placement of the pallet on the floor.” Id. at 201–02.

However, unlike the customer in Arrambide who actually observed the pallet which caused her injury and later tripped over it because she simply was not paying attention, Plaintiff in this case did not realize the pallet jack was behind her and she tripped over it because she was distracted by merchandise on a nearby display. (See ECF No. 62 at PageID 341.) Thus, Arrambide is distinguishable and the Court declines to adopt its reasoning.

In Hunter, the injury at issue occurred in the isle of the frozen foods section at Kroger. Hunter, 2018 WL 5793562, at *4–5. The appellant, in letting “another customer pass by her, closed the freezer door and stepped backwards ․ [and] [a]s she stepped backwards, [the appellant] tripped on a wooden pallet that was in the aisle.” Id. at *19. In addition, the parties stipulated that “nothing was obscuring [the appellant's] view of the pallet” at the time she fell. Id. at *2. Kroger argued that it owed no duty of care to the appellant because the pallet at issue was not a dangerous condition. Id. at *3. In response, the appellant argued that “Kroger owed her a duty of care because in the context of a grocery store, it is reasonably foreseeable that customers will become distracted by various merchandise displays and will not be aware of even open and obvious conditions.” Id. at *14.

The Tennessee Court of Appeals disagreed and upheld the trial court's grant of summary judgment to Kroger on grounds that Kroger did not owe the appellant a duty of care. The court reasoned that Kroger owed the appellant no duty because, unlike the cases cited by the appellant wherein a customer was distracted by a merchandise display at the time of their fall, the appellant “was not browsing any type of sales display but was in fact walking backwards to avoid the path of another customer” when she fell. Id. at *19. Furthermore, the court of appeals upheld the lower court's ruling in part because the appellant chose not to submit evidence in support of her position at the summary judgment stage and admitted to all of Kroger's proposed undisputed material facts. Id. at * 20–21.

Once again, such is not the case here. To start, Plaintiff clearly does not agree with all of Defendant's statement of material facts and has submitted sufficient proof supporting the duty element of her negligence claim through diagrams and deposition testimony. Unlike the appellant in Hunter who conceded she had a clear view of the pallet at the time she fell, Plaintiff claims there were numerous objects and obstructions in the garden center which obstructed her view of the pallet jack. (See ECF No. 59 at PageID 266.) In addition, Plaintiff was focused on merchandise displayed on the lower shelves in front of her when she stepped back and tripped over the pallet jack. (See ECF No. 62-1 at PageID 358) (providing that Plaintiff was standing in front of a display and Plaintiff stepped back to look at it).

Although Plaintiff admits she did not look where she was going before walking backward, (ECF No. 59 at PageID 265), and although Defendant can reasonably expect store invitees to be reasonably attentive, see Foster, 2012 WL 3027843, at *4, that evidence also must be viewed in the light most favorable to Plaintiff. On these facts, a jury could reasonably find that Plaintiff's attention was distracted by the merchandise displayed on the lower shelves because “a store competes for the customer's attention by encouraging her to look at and purchase items for sale.” McDavid v. ALDI, No. 2:16-cv-02699-SHM-cgc, 2017 WL 2954424, at *10 (W.D. Tenn. July 10, 2017) (internal citations omitted); see also Huegel v. Target Corp., No. 3:15-cv-550, 2017 WL 745589, at *5 (M.D. Tenn. Feb. 27, 2017) (“Presumably, Target could reasonably anticipate that customers in the Franklin store would be focused on the products on the shelves, as Mrs. Huegel testified she was, rather than on the floor of the store's aisles.”). Thus, the Court finds the Defendant owed Plaintiff, whose attention was diverted from the ground behind her to the merchandise placed on the lower shelves, a duty of care. See McDavid, 2017 WL 2954424, at *7–21.

In addition, Defendant has not produced any evidence showing that it would have been burdensome for its employee, Ms. Logan, to secure the pallet jack somewhere away from Plaintiff and other patrons before going to assist Plaintiff. Weighing the gravity and risk of harm to patrons such as Plaintiff against the burden on Defendant to have taken alternative measures to prevent the harm, the Court finds that Defendant had a duty to act with reasonable care. Therefore, the Motion for Summary Judgment, insofar as it relies on an argument that Defendant owed no duty to Plaintiff, is DENIED.

B. Comparative Fault

Under Tennessee's comparative fault system, a plaintiff may recover damages “reduced in proportion to the percentage of the total negligence attributable to the plaintiff,” but only if the “plaintiff's negligence remains less than the defendant's negligence.” Lewis v. State, 73 S.W.3d 88, 94 (Tenn. Ct. App. 2001).

Having established that a duty of care existed, the Court now turns to whether a reasonable jury could conclude that Plaintiff's comparative fault was less than fifty percent. Like its argument about duty, Defendant argues Plaintiff is at least fifty percent at fault because she “blindly moved up to ten (10) steps backward and traveled approximately ten (10) to fourteen (14) feet without first looking behind her” and ignored the fact that Ms. Logan was pushing the pallet jack when Plaintiff stopped her for assistance. (ECF No. 55-1 at PageID 221.) Plaintiff's response is that Defendant's argument is based on multiple disputed material facts, including, inter alia, the distance between the pallet jack and Plaintiff's starting position, how many steps Plaintiff took backward, and the length of the legs of the pallet jack. (See ECF No. 59 at PageID 264–66, 272.) Plaintiff also asserts that Ms. Logan was “100% responsible for causing [Plaintiff's] fall when she violated Wal-Mart policy and left a pallet jack unattended on the sales floor right behind [Plaintiff] while failing warn [Plaintiff] that she had left it there.” (Id. at PageID 272.)

“While comparative fault is typically a question for the trier of fact, summary judgment is appropriate in those situations where reasonable minds could only conclude that ․ the plaintiff's fault was equal to or greater than the fault of the defendant.” Green v. Roberts, 398 S.W.3d 172, 178 (Tenn. Ct. App. 2012) (citation omitted); see also Berry v. Houchens Mkt. of Tenn., Inc., 253 S.W.3d 141, 148 (Tenn. Ct. App. 2007) (affirming summary judgment on the grounds that no reasonable jury could find plaintiff less than equally at fault for the accident at issue). In determining apportionment of fault, the following factors may be considered:

(1) the relative closeness of the causal relationship between the conduct of the defendant and the injury to the plaintiff; (2) the reasonableness of the party's conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it; (3) the extent to which the defendant failed to reasonably utilize an existing opportunity to avoid the injury to the plaintiff; (4) the existence of a sudden emergency requiring a hasty decision; (5) the significance of what the party was attempting to accomplish by the conduct, such as an attempt to save another's life; and (6) the party's particular capacities, such as age, maturity, training, education, and so forth.

Eaton v. McLain, 891 S.W.2d 587, 592 (Tenn. 1994). This is not an exhaustive list, and the circumstances of the case should guide the decision maker. Id.Here, there are several facts which may lead a jury to conclude that Plaintiff was less than fifty percent at fault for her injuries, including the fact that Plaintiff was distracted by a merchandise display when she fell and she purportedly did not see the pallet jack at any time before her fall. Questions of comparative fault are usually reserved for the jury. See Green, 398 S.W.3d at 178. The Court sees no reason to depart from that rule based on the proof in the record at this stage.

Defendant also argues that summary judgment is warranted, in-part, because Plaintiff failed to differentiate the numerous cases cited in the comparative fault portion of Defendant's Memorandum in Support of Summary Judgment. However, unlike the numerous cases on which Defendant relies,1 the facts of this case are not so clear cut and finding for Defendant at this stage would require a prohibited venture into weighing the evidence. Therefore, Defendant's Motion, insofar as it relies on an argument that no reasonable jury could find Plaintiff less than equally at fault for her injury, is also DENIED.


For the foregoing reasons, Defendant's Motion for Summary Judgment (ECF No. 55) is DENIED.

IT IS SO ORDERED this 3rd day of January, 2020.


1.   Defendant cites to: (1) Friedenstab v. Short, 174 S.W.3d 217, 219 (Tenn. Ct. App. 2004); (2) Hall v. Owens, No. W201402214COAR3CV, 2015 WL 7354384, at *4 (Tenn. Ct. App. Nov. 20, 2015); (3) Wright v. 304 Broadway, L.L.C., No. M2002-00952-COA-R3CV, 2003 WL 21004634, at *2 (Tenn. Ct. App. May 6, 2003); (4) Lowery v. Franks, No. 02A01-9612-CV-00304, 1997 WL 566114, at *9 (Tenn. Ct. App. Sep. 10, 1997); (5) Carr v. Ozburn-Hessey Storage Co., No. 01A-01-9511-CV-00527, 1996 WL 383295, at *3 (Tenn. Ct. App. 1996); (6) Estate of Gunter v. Smith, No. 03A01-9512-CV-00448, 1996 WL 283069, at *1 (Tenn. Ct. App. May 30, 1996); (7) Sharp v. Anderson County, No. 03A01-9508-CV-00282, 1996 WL 42237, at *3-4 (Tenn. Ct. App. Feb. 5, 1996); (8) Walton v. Dickson County Bd. of Educ., No. 01A01-9410-CV-00480, 1995 WL 422279, at *3 (Tenn. Ct. App. Nov. 27, 1995); and (9) Bobo v. Harris, No. 02A01-9306-CV-00153, 1994 WL 71531, at *4, (Tenn. Ct. App. Feb. 28, 1994).


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