A federal judge in Missouri is allowing a slip-and-fall suit against Walmart to move forward after a customer slipped and fell on a green grape, concluding this week that questions remain as to whether Walmart knew about the alleged dangerous condition.
On Wednesday, Senior U.S. District Judge Stephen N. Limbaugh Jr. of the Eastern District of Missouri denied in part Walmart's motion for summary judgment regarding plaintiff Amber Hixson's premises liability suit on the question of whether Walmart had lacked knowledge of the grape. Hixson filed the premises liability suit after she slipped and fell on a grape by the checkout aisles at a Dexter, Missouri, store location in 2021. Walmart moved for summary judgment, maintaining it hadn't known about the grape on the ground by the aisles.
However, the court concluded there was a genuine issue of material fact regarding whether Walmart had notice of the dangerous condition.
"Based upon this evidence, as well as evidence regarding defendant’s method of operation, there is a genuine issue of material fact from which a jury could conclude that defendant had notice of the dangerous condition on the floor of the store," Limbaugh said. "Given the fact intensive nature of this case, the court finds that the granting of summary judgment would be inappropriate."
In Hixson v. Walmart, video surveillance shows the plaintiff walking through the checkout aisle less than five minutes before she slipped and fell, allegedly sustaining a tear to a joint in her wrist and a shoulder injury.
Walmart moved for summary judgment and pointed to numerous aspects of the case to prove that it didn't have notice of the grape on the floor in the checkout aisle, including that Hixson had walked through the aisle without issue minutes before her fall, that other customers had walked through the aisle less than one minute before her fall, and that another customer had been examining an item near the entrance of the aisle seconds before her fall and hadn't seen any debris or potential hazards. Walmart also noted that one of its employees walked across the aisle before the incident and testified that she looked in the general direction of the register and aisle as she walked.
Hixson opposed the motion for summary judgment, arguing that Walmart sells the green grapes every day and that its employee never looked down and observed the area of ground where she later fell and noted that the employee testified that "she otherwise did not recall walking the area to see if there was any debris or anything on the floor before she opened Checkout Aisle 1."
Limbaugh noted that, in order to prevail on a slip and fall, the plaintiff must prove that a dangerous condition existed on Walmart's property which involved an unreasonable risk, that they knew or should have known of the condition, that Walmart failed to use ordinary care in removing or warning of the danger and that the plaintiff was injured as a result.
"Whether a risk is reasonably foreseeable is a question of fact to be determined by the totality of circumstances, including the business’ method of merchandising and operating, as well as the nature of the article causing the injury," Limbaugh said, noting that Walmart, in choosing to operate under a self-service merchandising method, allowing customers to walk through aisles and handle merchandise themselves.
The store is “charged with the knowledge of the foreseeable risks inherent in such a mode of operation,” regardless of whether the hazard arises from its own products being misplaced on the floor “or some other device or condition,” the opinion said.
Ultimately, the court determined uncertainty remained around whether Walmart had notice of the grape. Limbaugh noted that the grape could have been an item available for purchase in the store and that there is a discrepancy in the testimony regarding whether a Walmart employee had checked the floor for safety and cleanliness before opening the checkout aisle where the plaintiff fell. He further noted that the grape was found and cleaned up following Hixson's fall.
"This evidence indicates that the item was on the floor in an area where employees had the opportunity to observe it. Further, although not a conclusive factor, there is no definitive evidence as to when, or for how long, the grape had been there," Limbaugh said. "While defendant would like to argue the surveillance videos clearly support its position that it did not have constructive notice, this court disagrees. The videos are unclear and grainy; and, they certainly don’t allow for anyone to see a green grape on the floor."
"We are happy the court denied the core of Walmart’s motion and are looking forward to continuing to litigate this case to seek justice for our client," said Justin K. Gelfand of Margulis Gelfand, in St. Louis, who is representing the plaintiff.
Shaun D. Hanschen of Blanton Collins, in Sikeston, Missouri, is representing the defendant and did not immediately respond to a request for comment.
Nov 14
Deal Summary
