United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge
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.
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
and Federal Rule of Civil Procedure 56.
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. §
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. Toulan-Zekpa Dep., ECF No. 22-4, Page ID
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.
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.
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. Toulan-Zekpa Dep., ECF No. 22-4, Page ID
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.
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.
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.
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).
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)).
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 ...