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Toulan-Zekpa v. Wal-Mart Stores, Inc.

United States District Court, D. Nebraska

August 21, 2018

DEDE TOULAN-ZEKPA, Plaintiff,
v.
WAL-MART STORES, INC., (#3153); Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp, Chief United States District Judge

         This matter is before the Court on the Motion for Summary Judgment, ECF No. 20, filed by Defendant Walmart Inc. (formerly Wal-Mart Stores, Inc.) (“Walmart”). For the reasons stated below, the Motion with be granted.

         BACKGROUND

         Unless otherwise indicated, the following facts are those stated in the parties' briefs, supported by pinpoint citations to admissible evidence in the record, in compliance with NECivR 56.1[1] and Federal Rule of Civil Procedure 56.

         Walmart is a Delaware corporation with its principal place of business in Bentonville, Arkansas. Plaintiff, Dede Toulan-Zekpa is a citizen of Nebraska. The amount in controversy exceeds $75, 000, exclusive of interest and costs. Thus, this case is properly before the Court based on diversity-of-citizenship jurisdiction under 28 U.S.C. § 1332.

         On July 17, 2013, Toulan-Zekpa and her husband entered the Walmart store located at 6710 S. 167th Street in Omaha, Nebraska. Shortly after arriving, Toulan-Zekpa walked into the dairy aisle where she suddenly slipped in what the parties believe was yogurt, and she fell. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 100, 104; Compl., ECF No. 22-1, Page ID 79. Toulan-Zekpa did not see the yogurt in the aisle prior to her fall. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 105. She was wearing glasses, and a factual dispute exists as to whether her glasses may have prevented her from seeing the yogurt on the floor.[2] Toulan-Zekpa Dep., ECF No. 22-4, Page ID 104.

         After Toulan-Zekpa's fall, her husband and an unknown person helped her up. Walmart associates then assisted her in cleaning her dress and they wiped the floor. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 93-94, 107-109. At her deposition, Toulan-Zekpa testified the Walmart associates were “shocked” when they arrived after her fall. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 110. Toulan-Zekpa signed a customer statement regarding the incident. Customer Statement, ECF No. 22-2, Page ID 83.

         Walmart's Assistant Manager, Patty Hauck, was one of the Walmart associates who responded to the report that Toulan-Zekpa had fallen. Hauck Decl. ¶ 3, ECF No. 22- 5, Page ID 114. Upon arrival in the dairy aisle, Hauck noticed visible light pink yogurt on the grey concrete floor. Hauck Decl. ¶¶ 4-5, ECF No. 22-5, Page ID 114. Hauck spoke with Toulan-Zekpa and cleaned up the spill which was located approximately 40 feet down the aisle. Hauck Decl. ¶¶ 3, 4, 7, ECF No. 22-5, Page ID 114-115. While cleaning up the yogurt, Hauck noticed the yogurt was still wet and cool to the touch, leading her to believe the yogurt had not been on the floor for very long. Hauck Decl. ¶ 7, ECF No. 22-5, Page ID 115. Toulan-Zekpa acknowledges the yogurt was still wet at the time of her fall but does not recall whether the yogurt was cold to the touch. Toulan-Zekpa Dep., ECF 22-5, Page ID 109. Toulan-Zekpa admits she has no knowledge of how long the yogurt was on the floor. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 106.

         Before cleaning the floor, Hauck photographed the yogurt and noticed only one smear in the yogurt, which appeared to have been caused by Toulan-Zekpa's fall. Hauck Decl. ¶ 6, 8, ECF No. 22-5, Page ID 114-115; Photographs, ECF No. 22-3, Page ID 90. There were no other marks in the yogurt indicating that any other shopping carts, associates, or customers had walked through the spill, and no yogurt was tracked along the aisle. Hauck Decl. ¶ 8, ECF 22-5, Page ID 115; Toulan-Zekpa Dep., ECF No. 22-4, Page ID 112. Walmart associates later found a partially opened Oikos strawberry yogurt that had been placed on the deli counter by an unknown individual. Photographs, ECF No. 22-3, Page ID 87; Hauck Decl. ¶12, ECF No. 22-5, Page ID 116. Toulan-Zekpa admits to having no personal knowledge of how the yogurt spilled on the floor.[3] Toulan-Zekpa Dep., ECF No. 22-4, Page ID 106.

         Per company policy in effect at the time of Toulan-Zekpa's fall, Walmart associates continually walked through the store aisles, including the dairy aisle, to ensure that no customer hazards existed and to address any hazards if they were present. Hauck Decl. ¶9, ECF No. 22-5, Page ID 115; Walmart Maintenance Policies, ECF No. 22-6, Page ID 118-120. In these regular “safety sweeps, ” associates carried towels to wipe up any spills they observed. Hauck Decl. ¶9, ECF No. 22-5, Page ID 115; Walmart Maintenance Policies, ECF No. 22-6, Page ID 118-120. Walmart maintenance associates also followed a strategic route through the store, designed to ensure that they passed by all aisles to observe and address any spills or other hazards. Hauck Decl. ¶10, ECF No. 22-5, Page ID 115; Walmart Maintenance Policies, ECF No. 22-6, Page ID 119-120.

         At her deposition, Toulan-Zekpa testified that before Walmart associates came to help her and to clean up, she did not see any Walmart employees in the area where she fell. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 111. Toulan-Zekpa also testified that she did not know whether any Walmart associates observed the yogurt on the floor before her fall. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 112.

         Walmart contends that Toulan-Zekpa admitted that, to her knowledge, no one else saw the yogurt prior to her fall. Def.'s Br. Supp. Summ. J. ¶ 15, ECF No. 21, Page ID 70. Toulan-Zekpa asserts that she only admitted no one saw the yogurt and attempted to warn her not to step in it. Toulan-Zekpa Dep., ECF No. 22-4, Page ID 105-106. However, it is undisputed that no other customer reported the spill to Walmart prior to Toulan-Zekpa's fall and Hauck is unaware of any Walmart associate who observed the yogurt on the dairy aisle floor prior to Toulan-Zekpa's fall. Hauck Decl. ¶ 11, ECF No. 22-5, Page ID 115.

         STANDARD OF REVIEW

         “Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view “the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing “the absence of a genuine issue of material fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477 U.S. at 325). Instead, “the burden on the moving party may be discharged by ‘showing' . . . that there is an absence of evidence to support the nonmoving party's case.” St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).

         In response to the moving party's showing, the nonmoving party's burden is to produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). “[T]here must be more than the mere existence of some alleged factual dispute” between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).

         In other words, in deciding “a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.” Wagner, 788 F.3d at 882 (quoting Torgerson, 643 F.3d at 1042). Otherwise, where the Court finds that “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, ” there is no “genuine issue of material fact” for trial and summary ...


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